CITATION:
R. v. Kippax, 2011
          ONCA 766

DATE: 20111207

DOCKET: C52666

COURT OF APPEAL FOR ONTARIO

Watt, Epstein and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alan Kippax

Appellant

Christopher Hicks and Kristin Bailey, for the appellant

Joanne Stuart, for the respondent

Heard:  September 29, 2011

On appeal from convictions of dangerous driving causing death
          and two counts of dangerous driving causing bodily harm entered by Justice Deena
          F. Baltman of the Superior Court of Justice, sitting without a jury, on
          October 27, 2009 with reasons reported at 89 M.V.R. (5th) 51.

Watt J.A.:

[1]

Alan Kippax (the appellant or Alan) appeals three convictions for
    dangerous operation of a motor vehicle arising out of an accident in which one
    person died and two others were seriously hurt. The car Alan Kippax was driving
    was not a vehicle in which anyone died or was injured, or a vehicle that
    collided with any other vehicle.

[2]

Alan Kippax contends that the trial judges finding on causation was
    flawed because she failed to consider relevant evidence, engaged in speculation
    and made unwarranted findings of fact about tandem driving and foreseeability
    of harm. The appellant also says that the trial judge was wrong when she
    refused to permit him to re-open his case after the verdict to adduce evidence
    the appellant discovered after conviction but prior to sentence that would have
    impeached the credibility of a critical prosecution witness.

[3]

At the conclusion of argument, we dismissed the appeal, for reasons to
    follow. We now provide those reasons.

THE BACKGROUND FACTS

[4]

A brief description of the circumstances underpinning
    the prosecution of the appellant is sufficient at the outset. Further detail
    can await discussion of the specific grounds of appeal.

The Principals

[5]

Alan and Peter Kippax were cousins. In June 2006
    Peter had recently arrived from London, England.  He lived with Alan in
    Brampton. Alan was about 40 years old.

The Scene

[6]

On the evening of June 3, 2006, drizzle fell in
    Mississauga. The road surface around the intersection of Mavis Road and
    Eglinton Avenue West, two main thoroughfares, was wet. The intersection is
    controlled by traffic lights. The speed limit on Mavis Road, south of the
    intersection, is 60 kilometers per hour, but it increases to 70 kilometers per
    hour north of the intersection.

[7]

A clearly marked right turn lane permits
    northbound traffic on Mavis Road to proceed east on Eglinton. Westbound traffic
    on Eglinton can utilize a similar lane on Eglinton to turn right and proceed north
    on Mavis Road. A merge lane on the east side of Mavis, 120 meters long, allows
    westbound traffic from Eglinton to turn north on Mavis and merge into the more
    easterly lane for northbound traffic on Mavis.

The Accident

[8]

At about 8:30 p.m. on June 3, 2006 Alan and
    Peter were driving north on Mavis Road, returning to Alans home after dinner.
    Alan was driving a Mercedes. Peter drove a Porsche, a vehicle that he had just acquired,
    one that had been salvaged twice previously and repaired with stolen parts.

[9]

At the intersection of Mavis Road and Eglinton
    Avenue West, Alan pulled into the right turn lane on Mavis. Peter was right
    behind him. Neither intended to turn right at the intersection. Both cousins
    accelerated at the change of light. They drove through the intersection into the
    northbound merge lane on Mavis. Alan, in the lead car, cut left into a
    northbound lane. Peter followed suit, but the Porsche spun out of control,
    crossed into the southbound lanes on Mavis and struck a Pontiac Sunfire. Mark
    Radman-Livaja was driving the Sunfire with his fiancée, Alison Hickey, beside
    him in the front passenger seat.

[10]

Peter died instantly. Mark Radman-Livaja and
    Alison Hickey survived, but suffered serious injuries.

[11]

Alan left the scene of the accident. He
    continued northbound on Mavis Road, entered a side-street and viewed the
    accident scene from his car. Another motorist pointed out Alans Mercedes to
    police who responded to the accident scene.

The Investigation

[12]

The police investigation of the crash did not
    include an accident reconstruction.  The available technology could not
    determine the speed of Peters Porsche immediately prior to or on impact,
    although several witnesses gave wide-ranging estimates of the vehicles speed
    as it proceeded through the intersection into the merge lane and beyond.

[13]

No evidence was adduced at trial about the
    roadworthiness of Peters Porsche on June 3, 2006.

Ground #1:  The Causation Issue

[14]

The first ground of appeal relates to the trial
    judges finding on causation, and specifically on factual causation. The
    submission includes, but is not limited to, a complaint that the trial judge
    failed to consider relevant evidence, especially evidence about the
    roadworthiness of the Porsche and the role that mechanical defects may have
    played in the accident.

The Reasons of the Trial Judge

[15]

After finding that the manner in which the
    appellant and his cousin drove their vehicles amounted to dangerous operation,
    the trial judge turned her attention to the controverted issue of causation.
    She acknowledged that causation consisted of both factual and legal components
    and described accurately the essence of each.

[16]

The trial judge reviewed the position advanced
    by counsel for the appellant at trial and rejected it.  She concluded in para.
    78 of her reasons:

[78]     Similarly, it is
    immaterial here that Peter also drove dangerously through the intersection, or
    that there may have been other contributing factors such as defective parts or
    workmanship in the Porsche.  For the reasons set out above, I am satisfied
    beyond a reasonable doubt that the accuseds driving was at least a
    contributing cause of the death and injuries involved outside the
de minimis
range.  To the extent that the law, as previously explained in
Shilon
,
    also requires proof that the resulting harm was reasonably foreseeable, for the
    reasons given above I am similarly satisfied.

The Position of the Parties

[17]

For the appellant, Mr. Hicks submits that
    factual causation was a live issue at trial, one that the trial judge failed to
    adequately examine and determine. Mr. Hicks says that the trial judge failed to
    consider whether the dangerous manoeuvre by Peter was the factual cause of
    the accident. She also failed to take into account the influence of mechanical
    defects in the Porsche on the issue of whether the appellants operation of his
    motor vehicle was a significant contributing cause of the accident.

[18]

Mr. Hicks contends that the trial judge failed
    to consider whether the evidence proved beyond a reasonable doubt that the
    accident was caused by the actions of the appellant and Peter. In particular,
    the appellant says that the trial judge failed to consider whether the evidence
    about the previous accidents and repairs on the Porsche and the absence of
    evidence of accident reconstruction or of the mechanical fitness of the Porsche
    raised a reasonable doubt about factual causation. What is more, Mr. Hicks
    urges, is that the trial judge failed to appreciate the distinction between
    factual and legal causation, and thus erred in weighing the evidence of
    mechanical fitness as part of legal, rather than factual causation.

[19]

Ms. Stuart, for the respondent, disagrees. She
    says that the trial judge well understood the difference between factual and
    legal causation, applied the appropriate test and reached the correct
    conclusion. Ms. Stuart points out that the Crown need not prove that the
    appellants conduct was the most proximate, primary or exclusive cause of the
    death and injuries that resulted from the accident, only that the appellants
    manner of driving was at least a contributing cause of the consequences beyond
de
    minimis
.

[20]

The respondent submits that the trial judge, in
    her but for analysis of factual causation, considered evidence about the
    speed of the vehicles, the road conditions, the manner in which the appellant
    and his cousin drove and their close proximity to one another in concluding
    that factual causation had been established. Ms. Stuart emphasizes the absence
    of any properly admissible evidence of mechanical defects, let alone the role
    any such defects played in the operation of the Porsche.

The Governing Principles

[21]

To determine whether a person can be held
    responsible for causing a particular result, in this case death or bodily harm,
    we must determine whether the person caused that result not only in fact but
    also in law:
R. v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

[22]

Factual causation involves an inquiry about how
    the victim died or suffered bodily harm, in a medical, mechanical or physical
    sense, and an accuseds contribution to that result:
Nette
, at para. 44.

[23]

Factual causation involves a determination of
    whether A caused B. The answer to the question of whether A caused B is
    resolved in a criminal case by the evidence of witnesses, those who testify
    about facts and others who offer relevant opinions:
R. v. Smithers
,
    [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B
    has nothing to do with intention, foresight or risk:
Smithers
, at p.
    518.

[24]

To prove factual causation, the Crown does not
    have prove that an accuseds conduct was either the direct or predominant
    contributing cause of the prohibited consequence, whether death or bodily harm.
    It is no defence for an accused to say that the conduct of another was a
    greater or more substantial cause of the death or injuries. The Crown need only
    prove that an accuseds conduct was a significant contributing cause of the
    death or injuries or, said another way, that the accuseds conduct was at
    least a contributing causeoutside the
de minimis
range:
Smithers
,
    at p. 519;
Nette
, at paras. 70-71; and
R. v. Hughes
, 2011 BCCA
    220, 305 B.C.A.C. 112, at paras. 56 and 64.

[25]

Factual causation, as the term itself would
    indicate, is a question of fact, reviewable only in accordance with a standard
    of palpable and overriding error:
Hughes
, at para. 65; and
R. v.
    Shepherd
, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.

[26]

Legal causation, on the other hand, has to do with
    whether an accused should be held responsible in law for a prohibited
    consequence of his or her conduct, for example, death or bodily harm:
Nette
,
    at para. 45. In legal causation, the inquiry is directed at the question of
    whether an accused should be held criminally responsible for the consequences
    that occurred:
Nette
, at para.
45;
R. v.
    Shilon
(2006), 240 C.C.C. (3d) 401 (Ont. C.A.), at para.
32. In the
    analysis of legal causation in negligence-based offences, like dangerous
    driving, reasonable foreseeability of harm is a relevant consideration:
Shilon
,
    at para. 33.

[27]

Conduct that is inherently dangerous and carries with it a reasonably
    foreseeable risk of immediate and substantial harm satisfies the standard
    required for legal causation:
Shilon
, at para. 38. Where the conduct of
    another is a reasonably foreseeable consequence of the conduct of an accused,
    the accused may be liable as a principal for the conduct of that other person:
Shilon
,
    at para. 54. A person may be liable as a principal if she or he actually does
    or contributes to the
actus reus
with the required
mens rea
:
Hughes
,
    at para. 77.

[28]

It is well-established that independent, voluntary human intervention in
    events started by an accused may break the chain of causation:
Shilon
,
    at para. 43. A new event may result in an accuseds conduct not being a
    significant contributing cause of a prohibited consequence. But legal
    responsibility for an event will remain and the chain of causation will not be
    broken where an accused intentionally produced the outcome, recklessly brought
    it about, or if the ordinarily circumspect person would have seen it as a
    likely consequence of his or her own conduct:
R. v. Maybin
, 2010 BCCA
    527, 263 C.C.C. (3d) 485, at para. 35.

The Principles Applied

[29]

This ground of appeal, which challenges the trial judges conclusion
    that the Crown had proven factual causation, does not warrant our intervention.

[30]

The appellant does not take issue with the trial judges finding that
    the manner in which he operated his motor vehicle on the evening of June 3,
    2006 amounted to dangerous driving. Further, the appellant acknowledges that
    the trial judge correctly stated the standard that applied to factual
    causation.

[31]

The trial judge was required to decide whether the appellants driving
    was a significant contributing cause of the death of Peter and the injuries to
    Mark Radman‑Livaja and Allison Hickey. She concluded that factual
    causation had been established on the basis of the cumulative force of evidence
    of excessive speed, inclement weather, compromised road conditions, inherently
    dangerous driving manoeuvres and the close physical proximity of the two speeding
    vehicles. Her determination of this issue involves a question of fact
    reviewable on the basis of palpable and overriding error, of which I can find
    none.

[32]

The appellant complains about the trial judges failure to include in
    her analysis of factual causation the absence of any evidence about accident
    reconstruction and of the mechanical condition of the Porsche. The trial judge
    had evidence from several witnesses who observed firsthand the collision and
    the events that immediately preceded it. There was no admissible evidence of
    any mechanical defect in the Porsche, let alone evidence of any defect capable
    of showing that the accident was unavoidable irrespective of the manner of
    driving.

[33]

The argument advanced on appeal does not appear to have been vigorously
    pursued at trial. It may also be debatable whether what is now advanced as a
    flaw in the analysis of factual causation is not more appropriately a
    consideration of legal causation.

[34]

This ground of appeal fails.

Ground #2: The tandem driving Finding

[35]

The appellant takes issue with the trial judges
    finding that the appellant and his cousin were driving in tandem at the time of
    the collision. Once again, it is helpful to begin with a reference to the trial
    judges reasons to site the complaint in its proper context.

The Reasons of the Trial Judge

[36]

After she had found that the Kippax cousins were
    both driving at speeds that were excessive not only for the road conditions,
    but also for the passing manoeuvre in which both vehicles were involved, the
    trial judge turned to the prosecutors assertion of in tandem driving.

[37]

The trial judge was not prepared to make a
    finding of in tandem driving solely on the basis of the evidence given by those
    who witnessed the collision and its immediate precursors. What clinched the
    in tandem activity for the trial judge was the evidence of John Rock. The
    trial judge concluded in para. 48 of her reasons:

[48]     In my view Mr. Rocks
    evidence establishes that the accused knew, at least at the point when he was
    approaching the intersection, that his cousin was travelling lockstep behind
    him. When combined with the evidence of the other drivers that the two men were
    travelling in close formation and executing the identical manoeuvre, I am
    satisfied they were driving in tandem when this collision occurred.

The Positions of the Parties

[38]

Mr. Hicks submits that the trial judge was not
    prepared to make a finding of in tandem driving on the basis of the testimony
    of the several witnesses who made first-hand observations of the events
    culminating in the collision. The trial judge made it clear that the evidence
    of John Rock was essential for her finding about in tandem driving.

[39]

Mr. Hicks contends that the trial judges
    finding on this issue is based on speculation, not reasonable inference.
    Speculation cannot serve as a surrogate for a reasonable inference. This
    finding, which formed the bedrock for the finding of guilt, should be set aside
    and, along with it, the finding of guilt.

[40]

On the other hand, Ms. Stuart takes issue with
    the proposition that a common intention is a condition precedent to the
    appellants liability. The trial judges conclusion was not based on common
    intention, but rather rooted in a finding that the appellant, who was himself
    driving dangerously, knew that Peter was following closely behind driving in an
    identical manner. This finding, crucial to the appellants liability, was amply
    supported by the evidence and is in no way the product of impermissible
    speculation.

The Governing Principles

[41]

Section 249(1)(a) of the
Criminal Code
sets out the essential elements of the offence of dangerous operation of a
    motor vehicle. The provision requires consideration of all the circumstances
    including, but not only, those listed. What must be determined, by a
    consideration of all the circumstances, is whether the manner in which the
    person charged was operating the vehicle was dangerous to the public.

[42]

Leaving aside street racing, which s. 2
    defines and for which s. 249.4 enacts specific provisions, the
Criminal Code
eschews categories of dangerous operation of a motor vehicle. Evidence of in
    tandem driving may assist the Crown in its proof that an accused operated a
    motor vehicle in a manner that was dangerous to the public, having regard to
    all the circumstances, but it is neither an essential element of the offence
    nor a condition precedent to a conviction of the operator as a principal
    offender:
Hughes
, at para. 78.

[43]

Our jurisprudence recognizes that an offence may
    be committed by more than one perpetrator or principal:
Shilon
, at para.
    47. Co-perpetrators under s. 21(1)(a) of the
Criminal Code
may have a
    mutual intention to pursue a common unlawful venture:
Shilon
, at para.
    53. A person may also be liable as a principal if he or she actually does or
    contributes to the conduct that constitutes the
actus reus
of an offence
    with the requisite
mens rea
:
Hughes
, at para. 77. Where the
    conduct of one driver, amounting to dangerous operation, is coupled with
    knowledge that another driver is likely to follow suit, the liability of the
    first for the consequences of the conduct of the second is as a principal or
    perpetrator:
Shilon
, at para. 54.

The Principles Applied

[44]

I would not give effect to this ground of
    appeal.

[45]

The appellants liability as a principal did not
    rest on a finding of common intention based on in tandem driving. A fair
    reading of the trial judges reasons as a whole supports the conclusion that
    the appellants guilt was based on his knowledge that his cousin was close
    behind him following the same admittedly dangerous manner of driving. This
    conclusion was amply supported by the evidence, not founded on impermissible
    speculation, and established the appellants liability as a principal.

[46]

This ground of appeal fails.

Ground # 3: Fresh Evidence and Re-opening the Defence Case

[47]

The final ground of appeal relates to evidence
    proposed for reception at the appellants sentencing by new counsel retained
    after the appellant had been found guilty of the offences charged. The evidence
    was put forward as relating to the credibility of the prosecution witness, John
    Rock, which was accepted by the trial judge and occupied a central role in her
    findings of guilt.

[48]

Some further background is necessary to
    understand the nature of the proposed evidence, the basis upon which it was tendered
    for admission and the error alleged in its rejection by the trial judge.

The Background

[49]

On the day on which the appellant was to be
    sentenced, counsel who then represented the appellant (who was neither trial
    counsel nor Mr. Hicks) applied to the trial judge for an order permitting the
    appellant to re-open the defence case or, preferably, declaring a mistrial on
    the basis of newly-discovered evidence. The appellants affidavit was filed in
    support of the application.

[50]

The appellant testified on the hearing of the
    application. He said that Ray Damhj was a top distributor in a business of
    which the appellant was the global sales director, Business in Motion. During
    the week before March 5, 2010, Damhj told the appellant that John Rock had
    started up his own competing network marketing company and had tried to recruit
    Damhj to join him (Rock) in this new venture. The appellant gave evidence that
    had he known about the new company and the attempted recruitment of Damhj, he
    would have told his trial lawyer about it so that the lawyer could enquire in
    depth in regards to it.

[51]

John Rock testified at the appellants trial on
    August 12, 2009, and again at the sentencing hearing on January 28, 2010. Prior
    to Rocks trial testimony, the appellant had received full disclosure of Rocks
    videotaped statement to police and was aware of the circumstances in which Rock
    had come to police attention, on the basis of information provided by Leanne
    Dalton.

[52]

The appellant and John Rock had been involved in
    a corporate predecessor to Business in Motion, but had parted on bad terms
    because, according to the appellant,  the appellant refused to offer Rock a
    position at Business in Motion. John Rock vehemently denied that this was the
    reason he left the company. The trial judge made no finding on this conflict. Further,
    the appellants relationship with Leanne Dalton had also soured over her
    failure to repay monies the appellant had advanced to her so that she could
    become involved in Business in Motion. The appellant acknowledged having
    provided information about his relationships with Rock and Dalton to his trial
    counsel before Rock testified at trial.

The Positions of Counsel at Trial

[53]

On the application before the trial judge,
    counsel for the appellant acknowledged that Rocks evidence, and the
    circumstances under which police learned that Rock had material evidence to
    give at trial, had been disclosed to the appellant months in advance of Rocks
    trial testimony. But the appellant was unaware that Rock had set up a competing
    business and had tried to recruit Damhj until shortly before the sentencing
    date. This new information, according to trial counsel, provided a motive for
    Rock to incriminate the appellant, and may well have made a difference in the
    trial judges conclusion on a material issue at trial.

[54]

Counsel for the Crown at trial resisted the
    appellants application. He pointed out that long before Rock testified, the
    appellant was aware of the circumstances in which Rock provided his statement
    to police, the substance of the statement and the circumstances in which both
    Rock and Dalton parted company with the appellant. The manner in which trial
    counsel for the appellant, a very experienced criminal lawyer, used or did not
    use this information in cross-examination reflected a tactical decision on
    counsels part that ought not be reversed on appeal. The Crown at trial pointed
    out that the appellant knew about Rocks involvement with a new company when
    Rock testified but elected not to pursue the matter in cross-examination. As
    for the alleged attempt to recruit Damhj, the appellant proffered no admissible
    evidence to support the claim.

The Reasons of the Trial Judge

[55]

The trial judge accepted the position advanced
    by counsel on both sides at trial that her decision to permit re-opening or to
    declare a mistrial was governed by the principles laid down in
R. v. Palmer,
[1980] 1 S.C.R. 759 at p. 775. She rejected the application on the basis that
    the applicant had satisfied none of the
Palmer
requirements.

[56]

The trial judge acknowledged that the due
    diligence requirement of
Palmer
should be applied less stringently in a
    criminal case. She concluded, however, that the proposed evidence could have
    been obtained easily through even a modicum of due diligence at trial. The
    trial judge considered that the proposed evidence was relevant to Rocks
    credibility, and thus the weight to be assigned to his evidence about in
    tandem driving, but she pointed out that there was no admissible evidence of
    the alleged recruitment of Damhj. She viewed the proposed evidence as neither
    credible nor capable of affecting the decision rendered at trial.

The Positions of the Parties on
    Appeal

[57]

Mr. Hicks contends that the trial judge erred in
    failing to admit the proposed evidence and grant the consequential relief
    requested.

[58]

Mr. Hicks reminds us that, in a criminal case,
    the due diligence requirement in
Palmer
does not trump the other
    criteria. In any event, although Rock came forward in early 2009, the appellant
    did not learn about his competing business until shortly before sentencing and
    could not reasonably have found out about it prior to verdict. The due
    diligence criterion should not foreclose the reception of evidence that shows a
    financial motive on the part of a crucial prosecution witness whose evidence
    was critical to the trial judges decision. At the very least, the fresh
    evidence could have constituted a good faith basis upon which trial counsel
    could have cross-examined Rock, even if evidence of the attempted recruitment
    of Damhj would have been barred by the hearsay rule.

[59]

For the respondent, Ms. Stuart submits that the
    trial judge was correct in refusing to permit re-opening or to declare a
    mistrial on the basis of the proposed fresh evidence.

[60]

Ms. Stuart does not quarrel with the principle
    that the due diligence requirement is applied less stringently in criminal
    cases. That said, it remains a relevant consideration on an application such as
    the one advanced here. The appellant had ample time and information to explore
    the relationship among himself, Rock, and Dalton, but made a tactical decision
    not to do so, a decision that ought not to be reversed on appeal.

[61]

Ms. Stuart acknowledges that Rocks evidence
    related to a potentially decisive issue at trial. She takes issue, however,
    with any suggestion that the proposed evidence is credible or could affect the
    conclusion of guilt reached by the trial judge. Inadmissible hearsay cannot
    establish a motive to fabricate and the disclosure history belied any such
    suggestion. The proposed evidence could not have affected the outcome at trial.

The Governing Principles

[62]

A trial judge is not
functus

officio
in
    a trial without a jury until she or he has imposed sentence or otherwise
    finally disposed of the case:
R. v. Lessard
(1976), 30 C.C.C. (2d) 70,
    (Ont. C.A.), at p. 73.  It follows that a trial judge who has made a finding of
    guilt on disputed facts has the authority to vacate the adjudication of guilt
    at any time before the imposition of sentence or other final disposition:
Lessard
,
    at p. 73. This authority, to vacate an adjudication of guilt, should be
    exercised only in exceptional circumstances and in the clearest of cases:
Lessard
,
    at p. 73.

[63]

The test for re-opening the defence case when
    the application is made after a finding of guilt is more rigorous than that
    which governs a similar application prior to an adjudication of guilt:
R. v.
    Kowall
, (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493.  The
Palmer
criteria
    provide helpful guidance to a trial judge faced with an application to re-open
    after a finding of guilt has been recorded. But a trial judge must also
    consider whether the application to re-open is, in essence, an attempt to
    reverse a tactical decision made at trial:
Kowall
, at pp. 493-494. See
    also,
R. v. Arabia
, 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.), at
    para. 46.

[64]

A trial judges decision about whether to permit
    re-opening of the defence case after an adjudication of guilt has been made
    involves an exercise of judicial discretion.  Where that discretion has been
    exercised in accordance with the governing legal principles, its exercise
    should not be lightly overturned:
R. v. Scott
, [1990] 3 S.C.R. 979, at pp.
    1002-1003.

The Principles Applied

[65]

I would not interfere with the trial judges
    exercise of her discretion to refuse the application to re-open the defence
    case. The trial judge stated and applied the governing legal principles and
    made no palpable and overriding error in doing so.

[66]

The appellant and John Rock had a history. They
    parted ways on less than amicable terms when the appellant did not hire Rock
    for his new venture, Business in Motion. The appellant knew the substance of
    Rocks evidence and that Dalton had alerted police to Rock as a prospective
    source of information in the prosecution of the appellant. This information was
    provided to the appellant as part of prosecutorial disclosure well in advance
    of trial. Rock gave evidence that he had his own marketing company.

[67]

At trial, the appellant had the wherewithal to
    challenge Rocks credibility on the basis that Rock bore some
animus
towards the appellant because of their inamicable parting, or had a financial
    motive to give incriminating evidence. Whether or to what extent he would do so
    was a tactical decision that should not be reversed with the wisdom of
    hindsight.

[68]

It is worth observation that, at the time he
    provided his videotaped statement to the police, Rock had not yet incorporated
    his network marketing business or attempted to recruit Damhj. His testimony at
    trial, after he had incorporated his business and allegedly attempted to
    recruit Damhj, was consistent with his prior videotaped statement. Further,
    Rocks evidence about the appellants admission concerning the proximity of
    Peters car to the appellants Mercedes was consistent with the testimony of
    many of the other motorists first-hand observations.

[69]

I would not give effect to this ground of
    appeal.

CONCLUSION

[70]

These are our reasons for dismissing the appeal
    at the conclusion of argument.

RELEASED:  December 7, 2011  DW

David
    Watt J.A.

I
    agree J.J. Esptein J.A.

I
    agree Karakatsanis J.A.


CITATION:
R. v. Kokopenace, 2011 ONCA 759

DATE: 20111201

DOCKET: M40566 (C49961) and M40567 (C48160)

COURT OF APPEAL FOR ONTARIO

Goudge, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Clifford Kokopenace

Applicant (Appellant
          in C49961)

AND BETWEEN

Her Majesty The Queen

Respondent

and

Clare Alexander

Spiers

Applicant (Appellant in C48160)

Delmar Doucette and Jessica Orkin, for the applicant Clifford
          Kokopenace

Anthony Moustacalis and Jessica Orkin, for the applicant Clare
          Alexander Spiers

Dennis Brown, Ria Tzimes, Darrell Kloeze, Michal Fairburn and
          Deborah Calderwood for the respondent

Julian N. Falconer and Sunil S. Mathai, for the intervener
          Nishnawbe Aski Nation (
NAN
)

Jonathan Rudin and Christa Big Canoe, for the intervener
          Bushie Family and Pierre Family

Heard: November 29, 2011

Application for disclosure in
          relation to the appeals from the conviction entered by Justice Erwin W. Stach
          of the Superior Court of Justice, sitting with a jury, dated June 17, 2008 and
          on appeal from the conviction of Justice J. Robert MacKinnon of the Superior
          Court of Justice, sitting with a jury, dated December 3, 2007.

By the Court:

OVERVIEW

[1]

The applicant Kokopenace and the applicant Spiers (collectively, the
applicants
)
    seek disclosure, or in the alternative, production of certain records from the
    Crown or from the Court Services Division of the Ministry of the Attorney
    General (
CSD
).  The applicants position is that these records are
    subject to the first party disclosure obligations summarized in
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326 and
R. v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66.
    In the alternative, the applicants submit that they are entitled to third party
    production of these records in accordance with
R. v. OConnor
, [1995] 4
    S.C.R. 411.

[2]

The records sought are as follows:

(a)    With respect to
    the 2008 jury roll prepared for the Kenora District, the applicant Kokopenace
    seeks:

(i)     thirty-six
    band lists still in the possession of CSD in the Kenora District that were used
    in preparing the 2008 jury roll;

(ii)    a band list
    provided by Kitchenuhmaykoosib Inninuwig (
KI
) to CSD in the Kenora District
    in 2009 (an earlier list provided by KI to CSD used to prepare the 2008 jury
    roll was destroyed by CSD upon receipt of the 2009 KI list); and

(iii)  a recreated
    list of on-reserve First Nations residents in the Kenora District to whom jury
    questionnaires were sent for the purpose of preparing the 2008 jury roll.

(b)    With respect to
    the 2007 jury roll prepared for Simcoe County, the applicant Spiers seeks disclosure
    of the band lists provided by the two First Nations communities in Simcoe
    County to CSD from 2000 to 2010.

[3]

Notice of the present application was given to all of the First Nations
    communities to which the records sought pursuant to this application related.
    None of these First Nations communities sought to make submissions beyond the
    submissions made by the interveners.

[4]

At the outset of the hearing, the Crown, speaking for CSD, abandoned its
    claim of public interest privilege with respect to the records at issue.  The
    parties therefore agreed that the central issue to be resolved by the court was
    whether the records sought met the likely relevant test for third party
    disclosure as set out in
OConnor
or

whether the records formed
    part of the Crowns first party disclosure obligation and met the relevance
    standard under
Stinchcombe/McNeil
.  All parties agreed that the privacy
    interests in the records sought to be disclosed or produced were protected by
    the undertaking filed by the applicants and agreed to by all counsel.

[5]

The parties also agreed that it was most expeditious for the court to
    first consider whether production of the records was required under the
OConnor
third party disclosure regime. If production was required, the parties
    agreed that it was not necessary to continue and consider whether there was a first
    party disclosure obligation on the Crown under
Stinchcombe/McNeil
.

[6]

On the issue of likely relevant, CSD set out its position as follows:

(a)

it took no position on whether the 36 band lists still in the possession
    of CSD that were used to prepare the 2008 jury roll for Kenora District and the
    band lists used to prepare the 2007 jury roll for Simcoe County were likely
    relevant (this issue was left to be determined by the court);

(b)

if the court determined that the 36 band lists used in Kenora District
    met the likely relevant test in
OConnor
, then CSD agreed that the
    2009 KI list was likely relevant to the extent that it could be used to refresh
    the CSD deponents memory as to how the destroyed KI list would have been used
    in preparing the 2008 jury roll; and

(c)

the band lists used to prepare the jury rolls in Simcoe County for the
    years 2000-2005 and 2007-2010 did not meet the likely relevant test in
OConnor
.

[7]

As discussed above, the parties agreed that the court should first
    determine whether the likely relevant test set out in
OConnor
has
    been met.  If the likely relevant test has been met, the court need not
    decide whether there was a first party disclosure obligation on the Crown with
    respect to the records sought.  As a result, the court should simply determine
    whether the records should be produced, since it is understood that, by
    ordering production, the court would not be deciding whether or not a first party
    disclosure obligation exists.

[8]

The applicant Kokopenace withdrew his request for a recreated list of
    on-reserve First Nations residents to whom jury questionnaires were sent for
    the purpose of preparing the 2008 Kenora District jury roll.  The applicant
    indicated that if the various band lists being sought were produced, this
    information could be obtained through the cross-examination of CSD deponents.

ISSUES

[9]

As a result, the two issues to be decided are as follows:

(a)

Whether the band lists used to prepare the 2008 Kenora District jury
    roll and the 2007 Simcoe County jury roll are likely relevant to an issue on
    appeal.

(b)

Whether the 2000-2005 and 2007-2010 band lists used by CSD in Simcoe
    County to prepare the jury roll in 2001-2006 and 2008-2011 are likely
    relevant to an issue on appeal.

DISCUSSION

A.

Whether the band lists that were used to prepare the 2008 Kenora
    District jury roll and 2007 Simcoe County jury roll are likely relevant to an
    issue on appeal.

[10]

There is no dispute as to the legal test to be applied on this
    application.  As the Supreme Court of Canada explained in
OConnor
, at
    para. 22, likely relevant in the context of production means that there is a reasonable
    possibility that the information is logically probative to an issue at trial or
    the competence of a witness to testify (emphasis omitted).

[11]

The Supreme Court of Canada confirmed this meaning of likely relevant
    in
McNeil
and further explained, at para. 33, that:

An issue at
    trial here includes not only material issues concerning the unfolding of the
    events which form the subject matter of the proceedings, but also evidence
    relating to the credibility of witnesses and to the reliability of other
    evidence in the case.  At this stage of the proceedings, the court cannot
    insist on a demonstration of the precise manner in which the targeted documents
    could be used at trial.  The imposition of such a stringent threshold burden
    would put the accused, who has not seen the documents, in an impossible
    Catch-22 position. [Citation omitted.]

[12]

The position taken by the applicants in the appeals is that there was
    systematic underrepresentation of First Nations persons in the 2008 Kenora
    District and 2007 Simcoe County jury rolls.  As a result, the juries in the
    trials of the two applicants were not representative and new trials should be
    ordered.

[13]

The applicants argue that there is a reasonable possibility that
    obtaining the lists used by the CSD officials to prepare the jury rolls
may
assist them in making their case on appeal.   In particular, the applicants
    argue that the lists can be used to cross-examine CSD deponents with respect to
    the statements they have made in their affidavits and to better understand the
    use that CSD deponents made of the lists in preparing the jury rolls.  The
    lists will also enhance the applicants understanding of the contents of the
    lists and their relevance to the preparation of the jury rolls.

[14]

In summary, the lists will permit the applicants to have a better
    factual foundation for the arguments that: (1) the sheriff did not make the
    reasonable efforts required to prepare a representative jury roll as required
    by the
Juries Act
, R.S.O. 1990, c. J.13; (2) the sheriff or other
    officer who returned the jury panels was partial, fraudulent or wilfully
    misconducted himself and therefore such jury panels can be challenged in
    accordance with s. 629 of the
Criminal Code
, R.S.C. 1985, c. C-46; (3) the
    applicants were denied their right to a constitutionally sound jury as required
    by s. 11(f) of the
Canadian Charter of Rights and Freedoms
, Part I of
    the
Constitution Act, 1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11; and (4) the various breaches of the applicants
Charter
rights are not justified under s. 1 of the
Charter
.

[15]

CSD made no submissions on this issue.

[16]

In our view, the applicants have demonstrated that these records are
    likely relevant.  They seek the very lists used to prepare the impugned jury
    rolls.  These records may contain annotations, entries or other information
    that can be used in testing the statements made by CSD deponents and in better
    understanding the process used to prepare the jury rolls.

[17]

The applicants need not establish the probative value of the records;
    they must only show that there is a reasonable possibility that the documents
    are logically probative to the issues raised respecting the representativeness
    of the jury rolls.

B.

Whether the 2000-2005 and 2007-2010 band lists used by CSD in Simcoe
    County to prepare the jury roll in 2001-2006 and 2008-2011 are likely
    relevant to an issue on appeal.

[18]

The applicant Spiers argues that the band lists used to prepare the jury
    rolls from 2001 through to 2011 are likely relevant to the issues raised in the
    appeal for three reasons.

[19]

First, the applicant Spiers notes that the Crown has made the
    information relating to the preparation of the jury rolls for 2001 to 2011
    relevant by itself filing an affidavit of a CSD deponent on the appeal providing
    information on the procedure followed to prepare the jury rolls in those very
    years.

[20]

Second, the applicant Spiers argues that the materials filed to date
    demonstrate that CSD officials did not follow their own policies to ensure the
    adequate representation of First Nations persons on the 2007 jury roll for
    Simcoe County.  The information from the other years sought will assist the
    applicant Spiers to establish the duration of the breach and the increasing
    impact of the breach over several years.  The duration and severity of the
    breach is, in the applicant Spiers submission, clearly relevant with respect
    to the issue of reasonable efforts under the
Juries Act
, wilful
    misconduct under s. 629 of the
Criminal Code
and the
Charter
issues raised on the appeal.

[21]

Finally, the information will allow the applicant Spiers to probe and
    question the statements made by the CSD deponent with respect to the preparation
    of the jury rolls for the years in question.

[22]

CSD argues that only the list used to prepare the 2007 jury roll has the
    possibility of having probative value.  In fact, although the affidavits filed
    by the Crown contain information on the process followed by CSD with respect to
    the preparation of the jury roll for years other than 2007, this does not make
    the band lists for those years relevant.

[23]

In our view, the band lists used for the preparation of the jury roll in
    each of those years meets the
OConnor
standard of likely relevant.
    We are satisfied that the practice in effect for the preparation of the jury
    rolls over the years will be the subject of debate, as will, to a certain degree,
    the practices that are detailed in the CSD deponents affidavit.  We need not
    determine that the applicant will show that these practices have probative
    value, since, at this stage, he need only show that they have a reasonable
    possibility of being logically probative.

[24]

In conclusion, we grant the applicants application requiring that the
    requested lists be produced to the applicants, provided that the undertaking
    agreed to among the parties is given.  As indicated earlier and in light of our
    conclusion that production ought to be ordered, we make no finding as to
    whether the records come within the Crowns first party disclosure obligations
    pursuant to
Stinchcombe/McNeil
.

S.T. Goudge J.A.

H.S.
    LaForme J.A.

Paul Rouleau J.A.

RELEASED:  December 01, 2011


CITATION:
R. v. Lalumiere, 2011
          ONCA 826

DATE: 20111223

DOCKET: C53389

COURT OF APPEAL FOR ONTARIO

Feldman, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Danny Lalumiere

Appellant

Brian Snell, for the appellant

Randy Schwartz, for the respondent

Heard: November 15, 2011

On appeal from the sentences imposed by Justice Peter Hambly
          of the Superior Court of Justice on August 27, 2010.

Simmons J.A.:

[1]

The appellant appeals from the concurrent sentences of life imprisonment
    imposed in relation to two convictions for counselling to commit murder. The appellants
    primary argument is that a life sentence is disproportionate and outside the
    range of sentences imposed on similar offenders for similar offences.

[2]

For the reasons that follow, I would accept this submission.

Background

[3]

Following a jury trial, the appellant was convicted of two counts of
    counselling to commit murder. The intended victims were the appellants ex-wife
    and her boyfriend.

[4]

The appellant and his ex-wife married in 1970, separated in 1990 and
    divorced in 1992. Between 1990 and 1999, the police were called on several occasions
    to investigate complaints about the appellants behaviour towards his ex-wife
    and their children. Charges were laid on one occasion but they were withdrawn
    when the appellant entered into a peace bond for one year.

[5]

In September 2002, the appellants ex-wife began a new relationship.
    Soon after, the appellant undertook a campaign of stalking and harassing his
    ex-wife and her new partner. Between late 2002 and early 2007, the appellant
    accumulated some 23 convictions for offences involving his ex-wife and her
    boyfriend ranging from breach of probation and breach of recognizance to
    assault, uttering threats and criminal harassment.

[6]

In 2003, Detective Sergeant Steve Smedhurst of the Threat Assessment
    Unit of the Ontario Provincial Police completed an assessment of the
    appellants risk of violence towards his ex-wife. He placed the appellant in
    the worst 1% of domestic violent offenders and concluded that the appellant had
    a 70% likelihood of assaulting his ex-wife at least once in the next five
    years. A second risk assessment completed in 2006 concluded that the threat
    level remained the same as in the earlier report.

[7]

On April 30, 2007, a confidential informant told police that the
    appellant wanted to hire someone to kill his ex-wife and her boyfriend. The
    appellant was in jail at the time, serving a sentence for offences involving
    his ex-wife. On June 14, 2007 a police officer posing as a member of the Hells
    Angels met the appellant in the visitors area of the institution where the
    appellant was incarcerated and told the appellant he understood the appellant
    wanted two people to disappear. The appellant agreed but said he could not pay
    until after his release in December. The undercover officer gave the appellant
    his telephone number and told him to call.

[8]

When the appellant did not call during the ensuing two weeks, the
    undercover officer returned to the institution on June 27, 2007 and again raised
    the subject of having two people killed. The appellant agreed to pay the
    undercover officer $5000 and telephoned him that evening to provide details
    about the habits, vehicles and locations of the victims. The undercover officer
    cautioned the appellant that once he agreed to proceed, there would be no
    turning back. The appellant agreed to proceed.

[9]

At trial, the appellant testified and claimed that he knew the
    undercover officer was not genuine. He said it was impossible someone would
    kill in the hope of later payment. According to the appellant, he was leading
    the undercover officer on and planned to report him to the authorities. Based
    on the jurys verdicts, it is apparent the appellants explanation failed to
    raise a reasonable doubt.

The Crowns Position on Sentence at Trial

[10]

At trial, the Crown sought the maximum sentence available for these
    offences, a sentence of life imprisonment. In the alternative, the Crown requested
    a long-term offender designation, seeking a substantial penitentiary sentence to
    be followed by a long-term supervision order.

[11]

On the sentencing hearing, the Crown called Dr. Pallandi, a
    psychiatrist, to give evidence concerning the appellants psychiatric profile,
    his risk of reoffending, and his prognosis for change.

[12]

Evidence on the sentencing hearing indicated that the appellant had a
    longstanding and significant problem with alcohol that marred both his
    relationship with his wife and children during marriage and his subsequent
    dealings with his ex-wife.

[13]

Dr. Pallandi diagnosed the appellant as suffering from alcohol
    abuse/dependence. Although in remission while the appellant is incarcerated, Dr.
    Pallandi described this as a lifelong condition with a strong potential for
    relapses and remissions.

[14]

In his meetings with Dr. Pallandi, other than perhaps obliquely on one
    or two occasions, the appellant did not acknowledge any of the criminal
    conduct that had led to his past convictions. Rather, he engage[d] in
    discussions about how he has been the target of his vengeful ex-spouse or the
    target of unnecessary attention and policing. Further, the appellant
    portrayed a reality in which there had been a conscious effort on the part of
    his family, police and the judiciary to separate him from his wife with whom he
    described a generally benign and friendly relationship.

[15]

Although Dr. Pallandi did not diagnose the appellant as having an active
    mental disorder, he opined that the appellant was pathologically jealous and
    possessed inadequate internal defense and coping mechanisms to resolve the end
    of a marital relationship. He concluded that the offence of counselling to
    commit murder arose from the pathological process of obsessive
    following/stalking and that the appellants inability to deal with the end of
    his marriage likely fuelled the offence.

[16]

Dr. Pallandi indicated there is no pharmacological way to address the
    appellants problem and psychotherapies do not seem to work. Moreover, the
    longer a person engages in following/stalking behaviour, the more difficult it
    becomes to change that behaviour.

[17]

Dr. Pallandi described the appellants ongoing risk to his ex-wife and
    those romantically involved with her as persistently high. Although he
    described the ongoing management of the appellant as a formidable task, he
    opined that, given available resources, the appellants risk could eventually
    be controlled in the community, if subject to highly specific and intrusive
    conditions.

[18]

In the light of this opinion, the Crown conceded during oral argument
    that it could not have succeeded with a dangerous offender application.

The Trial Judges Reasons

[19]

The trial judge gave lengthy reasons for sentence in which he reviewed:
    the history of complaints about the appellants pattern of abusive behaviour
    towards his ex-wife and children between 1990 and 1999; the appellants
    criminal convictions between 2002 and 2007; the facts of the offences; the
    appellants background; Dr. Pallandis evidence; and the legal principles
    relevant to sentencing for these offences  including  whether a life sentence
    is available based on dangerousness where the Crown does not bring a dangerous
    offender application.

[20]

In his review of the law, the trial judge adverted to a number of decisions
    that have held that a life sentence should not be imposed on the grounds of
    dangerousness where the Crown has not brought a dangerous offender application.
    However, the trial judge highlighted the decision in
R. v. Edwards
(2001), 54 O.R. (3d) 737 (C.A.), which he described as holding that a life
    sentence could still be imposed [even though the Crown has not brought a
    dangerous offender application], where it would not offend the proportionality
    principle and there was expert evidence that the accused would commit further
    serious violent offences.

[21]

The analysis section of the trial judges reasons consisted of five paragraphs.
    He summarized the history of the appellants convictions, the appellants
    obsession with his ex-wife, the futility of previous sentences in their efforts
    to control the appellants behaviour, and the expert evidence concerning risk.

[22]

The trial judge noted that the authorities presented to him disclosed sentences
    of up to 12 years imprisonment for the offence of counselling to commit
    murder. However, he distinguished those authorities on their facts: some
    involved guilty pleas; none involved continuing risk, and none involved an
    attempt to hire someone to kill a spouse while in custody.

[23]

After stating that the fact of the attempt to hire someone to kill a
    spouse while in custody was the most frightening aspect of this case, the
    trial judge found that a life sentence was proportionate to the gravity of the
    offences. He said:

If this is not the worst case of its kind with the
    worst offender it is very close to it. In all the circumstances, in my view, a
    life sentence is proportionate to the gravity of the offence. The sentencing
    principles that must have priority in this case are general and specific
    deterrence, denunciation and most importantly separation from society for the
    protection as Dr. Pallandi euphemistically expressed it in his oral evidence
    the victim pool. As Southey J. stated in
Chase
There is no more
    despicable act, and nothing more dangerous to the fabric of our society, than
    killing for hire. [The appellant] has lost his right to live in a civilized
    society.

Discussion

[24]

In
R. v. Goyette
, 2003 CarswellOnt 1824 (C.A.), this court
    reduced an effective sentence of 20.5 years imprisonment to 16 years
    imprisonment less credit for pre-sentence custody for two counts of counselling
    to commit murder involving circumstances markedly similar to the circumstances
    of this case.

[25]

Although I acknowledge that no two cases are identical, in my view,
Goyette
demonstrates that a sentence of life imprisonment for this offender and these
    offences is disproportionate to the gravity of the offences and the moral
    culpability of the appellant and outside the range of sentences imposed on
    similar offenders for similar offences. In fairness to the trial judge, it does
    not appear that
Goyette
was brought to his attention.

[26]

As I have said, the circumstances of the offences in
Goyette
are
    markedly similar to the circumstances of the offences in this case. While in
    custody for assault and uttering threats against his ex-wife, Goyette enlisted
    a fellow inmate to put out a contract to kill her and her boyfriend.
    Fortunately, the contract killer was an undercover police officer. Moreover, like
    the appellant, Goyette had a long history of assaults, criminal harassment and
    uttering threats against his ex-wife along with numerous breaches of probation
    and recognizance.

[27]

In reducing the 20.5 year effective sentence imposed at trial, this
    court held that that sentence was simply outside the range:

The offences were extremely serious and given the
    appellant's background and history, the trial judge was on solid ground in
    concluding that a very substantial penitentiary sentence was called for. We
    are, however, of the view that the sentence imposed (effectively one of 20.5
    years) was outside the range of sentences imposed for like offenders in like
    circumstances. In our view, the appellant deserved a sentence of 16 years
    imprisonment less time served (2.5 years). That, we believe, constitutes a fit
    and just sentence in the circumstances.

[28]

Unlike the appellant, Goyette pleaded guilty. However, he did so only
    after the trial had begun and the victims had testified. The sentencing judge
    held that the guilty pleas were worthy of minimal mitigating effect in the
    circumstances.

[29]

Importantly, also unlike the appellant, in addition to his record of
    offences against the intended victims, Goyette had a serious record for
    robberies, weapons, other assaults and offences of dishonesty. While the
    appellant does have three convictions for impaired driving between 1986 and
    1993, his unrelated record in no way approaches Goyettes far more serious
    record.

[30]

I note as well, that prior to his campaign against his ex-wife and her
    new boyfriend, and despite his longstanding alcohol problems, the appellant in
    this case had a lengthy history of gainful employment.

[31]

On appeal, the Crown argues that the uncontradicted evidence concerning
    the appellants future dangerousness together with Goyettes guilty plea
    distinguish this case from
Goyette
and justify the sentence of life
    imprisonment.

[32]

I disagree. As I have said,
Goyette
involved a very late guilty
    plea, which the trial judge held was entitled to minimal mitigating effect.
    Moreover, as in this case, Goyettes past behaviour towards his wife raised the
    prospect of future offences.

[33]

That said, I see no indication in
Goyette
that expert evidence
    regarding the accuseds future dangerousness was adduced at the sentencing
    hearing. In this case, the evidence of the appellants future dangerousness was
    uncontradicted. However, while that distinction may justify a long-term
    offender designation, in my view, it does not rise to the level of justifying a
    sentence of life imprisonment.

[34]

The appellant argued that a long-term offender designation is not available
    in this case because s. 753.1(1)(b) of the
Criminal Code
stipulates
    there must be a substantial risk that the offender will reoffend before a
    long-term offender designation can be made. The appellant says the substantial
    risk of re-offence criterion in s. 753.1(1)(b) does not refer to just any
    criminal offence; rather, it must mean a serious personal injury offence. He
    contends that, apart from the offences that are the subject of this appeal,
    there is nothing on his record that qualifies as a serious personal injury
    offence and that the risk of him committing such an offence in the future is
    therefore not substantial.

[35]

I would not accept this submission. Even assuming s. 753.1 requires a
    substantial risk that the offender will commit a serious personal injury
    offence, the appellants convictions for criminally harassing and threatening
    his ex-wife fall within the definition of serious personal injury offences. Her
    victim impact statement filed on the sentencing hearing clearly illustrates the
    psychological harm she has suffered because of the appellants criminal conduct.
[1]

[36]

In my opinion, particularly when coupled with the predicate offences, the
    appellants intractable history of offences against his ex-wife, the threat
    assessments, and Dr. Pallandis evidence amply demonstrate the need for a
    long-term offender designation. In the event it becomes apparent that the
    appellant is no longer a danger to his ex-wife and any romantic partner, the
    appellant can apply for an order reducing the period of long-term supervision under
    s. 753.2(3) of the
Criminal Code
.

[37]

I see no reason to depart from the usual practice of granting two for
    one credit for pre-sentence custody that was in place when the appellant was
    sentenced.

[38]

Accordingly, I would allow the appeal and set aside the sentence of life
    imprisonment. In its place, I would designate the appellant a long-term
    offender and impose a determinate sentence of sixteen years imprisonment, less
    credit for time served of 5 years and six months, and order that the appellant
    be subject to long-term supervision for 10 years.

[39]

The appellant asked that we vary the terms of the ancillary order made
    by the trial judge under s. 743.21 of the
Criminal Code
prohibiting him
    from communicating either

directly or indirectly with his children. Fresh evidence
    materials filed by the appellant indicate that his adult daughter, C.A., has
    made efforts to contact her father. The appellant asks for a variation of the
    ancillary order so that it permits contact between him and his adult children
    on their filing a written but revocable consent with the appropriate
    authorities.

[40]

Given that there is some evidence that the appellants daughter may wish
    to be in touch with her father, I would vary the ancillary order so that it
    prohibits the appellant from communicating with his daughter directly or
    indirectly subject to the following exception: in the event the appellants
    daughter files a written consent with the appropriate authorities the appellant
    may respond to communications initiated by his daughter so long as her consent
    remains in full force and effect. I would allow the appellants daughter to
    revoke her written consent in writing at any time. I would direct that all
    other terms of the trial judges order made under s. 743.21 of the
Criminal
    Code
remain in full force and effect.

Signed:           Janet Simmons J.A.

I agree K. Feldman
    J.A.

I agree David Watt
    J.A.

RELEASED:  KF DECEMBER 23, 2011

[1]
Serious personal injury offence, as defined by s. 752 of the
Criminal
    Code
, includes
the use or attempted use of violence against another
    person or
conduct endangering or likely to endanger the
    life or safety of another person or inflicting or likely to inflict severe
    psychological damage upon another person
,

for which the offender may be sentenced to imprisonment for ten
    years or more.


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.

CITATION:
R. v. Larocque, 2011 ONCA 814

DATE: 20111221

DOCKET: M40128 (C49178)

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Larocque

Applicant/Appellant

Russell Silverstein, for the appellant

Frank Au, for the respondent

Heard and released orally:
December 16, 2011

On appeal from the sentence imposed by Justice Peter Howden of
          the Superior Court of Justice dated July 2, 2008.

ENDORSEMENT

[1]

We are of the view that this is not a case in which the court should
    exercise its extraordinary jurisdiction to reopen the applicants sentence
    appeal that was dismissed as abandoned in March 2010.

[2]

The applicant abandoned his sentence appeal with the benefit of legal
    advice and, at the time, had a considered basis for doing so.  Subsequent
    events have brought him to doubt the wisdom of that decision.  However the
    circumstances of this case do not overcome the great interest in finality.
    There is in this case no miscarriage of justice.  The application is refused.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J.
    Epstein J.A.


CITATION:
R. v. Lourenco, 2011
          ONCA 782

DATE: 20111213

DOCKET: C51848

COURT OF APPEAL FOR ONTARIO

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

BETWEEN

Her Majesty The Queen

Applicant

and

Christopher Lourenco

Respondent

Mark  Halfyard, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: December 5, 2011

On appeal from conviction entered by Justice John Hamilton of
          the Superior Court of Justice dated January 26, 2009 and sentence imposed
          dated April 17, 2009.

ENDORSEMENT

[1]

The appellant was convicted of a number of offences arising out of two incidents
    on March 3, 2007 and March 9, 2007.

[2]

The appellant attended at the new apartment of Ms. Emily Bell , a young
    woman with whom he had had a previous relationship. When they began to argue,
    she forced him out. Outside the door, he shot two shots from his .22 calibre
    gun into the door of the apartment above the peep hole. A few days later the
    appellant was on the phone with Emily and her sister and threatened to come
    over and kill them. The sister, Jennifer, then called 911, following which, the
    police attended at the appellants home. He was eventually arrested. Sometime
    later he tried to influence Emily not to come to court to testify.

[3]

Following the appellants arrest, the police executed a search warrant
    at the appellants home and found a loaded .22 calibre gun, ammunition, a
    bullet proof vest, a quantity of crack cocaine, debt lists and drug paraphernalia.
    The appellant was convicted of a number of offences including discharge of a firearm
    with intent to endanger life, threatening death and various drug and firearm
    related offences.

[4]

The appellant raises three grounds of appeal. The first two relate to
    the reasons of the trial judge and his failure to address the frailties in the
    evidence of the complainant, Emily Bell, particularly because she lied about
    letters that she had written to the appellant in jail that said that she had
    lied to the police. He also failed to consider inconsistencies within the
    evidence of Emily herself and with other witnesses, as well as any potential
    animus of the complainant. We would not give effect to these two grounds of
    appeal.

[5]

In our view, based on the reasons for decision, as well as the trial
    judges colloquy with defence counsel, the record demonstrates that the trial
    judge was fully alive to all of the potential problems with Emilys evidence
    but was satisfied that on the essential elements of the offence her evidence
    was reliable. There was also physical evidence of the gun shots in her
    apartment and further, when the appellants apartment was searched, the loaded
    .22 calibre gun and the bullet proof vest that Emily had seen on March 3, were
    found. In our view, the trial judges reasons were sufficient to show that he
    was alive to the issues and problems with Emilys evidence. However, he was
    entitled to accept that evidence. We see no error on this ground.

[6]

The third issue raised was the voluntariness of the statements the
    appellant made to the police when they came to his apartment in response to the
    911 call. Two police officers attended. They did not caution the appellant
    before he made some derogatory statements about Emily and her sister. The
    statements made were corroborative of the evidence that supported the
    convictions for threatening death of the two women. They were not corroborative
    of or relevant to the other charges.

[7]

In our view, the trial judge erred in law in ruling that the statements
    were voluntary when there was no caution and the second officer who was present
    was not called by the Crown to testify. Although a caution is not necessary
    depending on the circumstances, there was nothing in this case to bring home to
    the appellant that he did not have to speak and that there were potential adverse
    consequences to doing so: see
R. v. E.B
. 2011 O.J. No. 1042 (C.A.) at
    paras. 88 and 91.

[8]

As a result, we would allow the appeal in respect of Counts 7 and 8, threatening
    death to each complainant, set aside the convictions and the sentence on count
    7 of six months concurrent, and order a new trial on those charges.

[9]

The appeal is otherwise dismissed.

Signed:           K. Feldman
    J.A.

Armstrong
    J.A.

Himel
    J.


CITATION:
R. v. Maloney, 2011 ONCA 821

DATE: 20111222

DOCKET: C53799

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Sean William Maloney

Appellant

Sean Maloney, in person

Kevin Wilson for the respondent

November 7, 2011

On appeal from conviction and sentence by Justice Bordeleau of
          the Ontario Court of Justice dated May 27, 2011.

By The Court

[1]

On May 27, 2011, the appellant pleaded guilty to one count of possession
    of marihuana for the purpose of trafficking. Bordeleau J. sentenced the
    appellant to 30 days imprisonment to be served intermittently and 11 months
    probation. The appellant initially appealed his conviction. At the hearing of
    that appeal, with the consent of the Crown, time to appeal sentence was
    extended.

[2]

The appellants conviction appeal raises the same grounds of appeal that
    were argued in the
McCrady et al
. and in the
Parker
appeal. In
    particular, the appellants arguments and his situation mirror those of the
    appellants McCrady and Hearn. For the reasons set out in those decisions, which
    are released concurrently with this decision, the appeal from conviction is
    dismissed.

[3]

As to the sentence appeal, the facts of the offence are that on June 6,
    2010, the appellant and two others were in a vehicle near Casselman heading
    towards the Quebec border. For reasons that are not necessary to explore, a
    police officer stopped the vehicle.  The appellant handed a bag to the police
    officer that contained 521 grams of
cannabis
marihuana and 55 grams of
cannabis
resin. The appellant used
cannabis
for medicinal purposes.  He suffers
    from back pain as a result of lumbar scoliosis.  The
cannabis
helps
    relieve the symptoms. At the time of the offence, the appellant did not have an
    authorization to possess marihuana issued under the
Marihuana Medical Access
    Regulations,
S.O.R.,/2001-227
.

[4]

During his oral submissions to this court, the appellant explained the
    difficulty he has had in finding a physician in his home province of Quebec to
    assist him in applying for an ATP.  Given the way this allegation was raised at
    the hearing of his appeal, without supporting material, we are not able to
    address the merits of that position.

[5]

However, we are satisfied that given the appellants illness, the
    uncontested fact that the appellant uses
cannabis
for medicinal purposes
    and that he has made efforts to comply with the
MMAR
, it is now in the
    interests of justice to allow the sentence appeal. Crown counsel did not oppose
    this disposition.

[6]

Accordingly, leave to appeal sentence is granted, the appeal is allowed
    and the sentence of imprisonment reduced to time served. We see no reason for
    the period of probation and that order will also be struck out.

Signed:           M. Rosenberg J.A.

Robert J. Sharpe J.A.

R. G. Juriansz J.A.

RELEASED:  MR DECEMBER 22, 2011


CITATION:
R. v. McCrady, 2011 ONCA 820

DATE: 20111222

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN:                                                                                DOCKET:
          C52549

Her Majesty The Queen

Respondent

and

Robert Christopher McCrady

On appeal from
          conviction entered by Justice R. W. Lalande of the Ontario Court of Justice,
          dated July 9, 2010.

BETWEEN:                                                                                DOCKET:
                C52898

Her Majesty The Queen

Respondent

and

Wayne William Hearn

Appellant

On appeal
                from conviction entered by Justice S. Fuerth of the Ontario Court of
                Justice dated October 25, 2010.

BETWEEN:                                                                           DOCKET:
                53096

Her Majesty The Queen

Respondent

and

Debra McIntyre

Appellant

On appeal
          from an order of Justice Drew S. Gunsolus of the Superior Court of Justice
          dated December 9, 2010.

BETWEEN:                                                                           DOCKET:
          52007

Her Majesty The Queen

Respondent

and

Gary Pallister

Appellant

On appeal
          from the order of Justice Terrance OConnor of the Superior Court of Justice
          dated March 26, 2010.

BETWEEN:                                                                           DOCKET:
          C52961

Her
          Majesty The Queen

Respondent

and

Mark
          MacDonald

Appellant

On appeal from the order of Justice Cory Gilmore of the Superior Court of
    Justice dated October 27, 2010.

Robert McCrady, in
    person

Wayne William Hearn,
    in person

Debra McIntyre, in
    person

Gary Pallister, in person

Mark MacDonald, in
    person

Kevin Wilson, for the
    respondent

By The Court:

OVERVIEW

[1]

These appeals involve five appellants who have been charged and, in some
    cases, convicted of marihuana related offences contrary to the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19. The appellants have been
    frustrated by the operation of the
Marihuana Medical Access Regulations
,
    S.O.R./2001-227 and argue that the offences with which they have been charged have
    been judicially repealed. The reasons in this appeal are being released at the
    same time as the reasons in the companion cases of
Parker
and
Maloney.

[2]

The appellants McCrady and Hearn appeal from convictions for marihuana related
    offences.  The appellant McCrady was convicted of possession of marihuana contrary
    to s. 4(1) of the
CDSA
by Lalande J. of the Ontario Court of Justice on
    July 19, 2010. The appellant Hearn pleaded guilty to production of marihuana
    contrary to s. 7(1) of the
CDSA
in the Ontario Court of Justice on July
    9, 2010.

[3]

The appellants Pallister and McIntyre currently face charges for
    production and possession for the purpose of trafficking, and production and
    simple possession, respectively. The appellant MacDonald was charged with
    possession for the purpose of trafficking in December 2008. Those charges were
    stayed in December 2010. Pallister, McIntyre and MacDonald each seek orders
    prohibiting prosecution for marihuana related offences under the
CDSA
and

staying all marihuana charges as an abuse of process. They also seek
    to have the Crown cited for contempt for continuing to prosecute marihuana
    offences. Finally, they seek to expunge the criminal records of all people
    convicted of marihuana offences.

[4]

We recognize the frustration expressed by each of the appellants about the
MMAR
. However, the marihuana offences set out in the
CDSA
have
    not been repealed and were in force when the appellants McCrady and Hearn were
    convicted. The remedies sought by the appellants Pallister, McIntyre and
    MacDonald are not available on this record. Accordingly, all the appeals are
    dismissed.

FACTS

(1)       The Appellant McCrady

[5]

In October 2008, McCrady submitted an application to possess and grow
    marihuana pursuant to the
MMAR
. The application was signed by his
    medical doctor. Health Canada processed the application six months later, in
    April 2009.  On February 20, 2009, before the application was processed,
    McCrady was charged with possession and possession for the purpose of
    trafficking contrary to ss. 4 and 5 of the
CDSA
. The amount was 106
    grams, or just under four ounces. On July 19, 2010, he was acquitted of
    possession for the purpose and convicted of simple possession. McCrady was
    sentenced to 12 months of probation and a $250 fine.

(2)       The Appellant Hearn

[6]

On July 9, 2010, Hearn pleaded guilty to production of
cannabis
contrary to s. 7 of the
CDSA
. The offence occurred on April 22, 2009 and
    involved 69 plants. On October 25, 2010 Hearn was sentenced to a $500 fine.

(3)       The Appellant Pallister

[7]

It is alleged that on October 2, 2009, police executed a
CDSA
search
    warrant at a residence in Thornbury, Ontario and seized approximately 450
cannabis
plants, along with a quantity of cannabis. The appellant Pallister was charged
    with production of
cannabis
, possession of
cannabis
and
    possession for the purpose of trafficking, together with several co-accused. The
    charges were set to be heard by the Superior Court of Justice on November 29,
    2011.  While his charges were still before the Ontario Court of Justice,
    Pallister brought an application before the Superior Court for declaratory
    relief with respect to the validity of the offences. On March 26, 2010,
    OConnor J. dismissed the application. Pallister appeals from OConnor J.s
    decision.

(4)       The Appellant McIntyre

[8]

It is alleged that on January 7, 2010, the police executed a
CDSA
search
    warrant at a residence in the Township of Douro-Dummer and seized three pounds
    of marihuana and 1383
cannabis
plants. McIntyre was charged with
    production of
cannabis
and possession of
cannabis
. Those charges
    are still before the courts. McIntyre brought an application before the
    Superior Court of Justice for declaratory relief with respect to the validity
    of the offences with which she is charged. Gunsolus J. dismissed the
    application on December 9, 2010. McIntyre appeals that decision.

(5)       The Appellant MacDonald

[9]

It is alleged that on December 8, 2008, the police executed a
CDSA
search
    warrant at a residence in Otonabee-South Monaghan Township and seized a large
    quantity of
cannabis
. The appellant MacDonald was charged with
    possession of
cannabis
for the purpose of trafficking. MacDonald brought
    an application before the Superior Court of Justice seeking declaratory relief
    with respect to the validity of the offence. On October 27, 2010, Gilmore J.
    dismissed the application. On December 8, 2010, the charge against MacDonald
    was stayed. MacDonald appeals from Gilmore J.s decision.

ISSUES ON APPEAL

[10]

The appellants McCrady and Hearn appeal their convictions. They raise
    the following issues:

(1)       Their
    charges should have been quashed, as marihuana is no longer a controlled
    substance.

(2)       Their
    charges should have been judicially stayed, as marihuana no longer should be a
    controlled substance.

[11]

The appellants Pallister, MacDonald and McIntyre raise the following
    issues respecting marihuana offences:

(1)       The
    combined effect of the decisions of the Ontario Court of Appeal in
R. v.
    Parker
(2000), 49 O.R. (3d) 481,

[
Parker
(2000)];
Hitzig
    v. Canada
(2003), 177 C.C.C. (3d) 449

(Ont. C.A.)
,
and
R.
    v. J.P.
(2003), 67 O.R. (3d) 321

is the repeal of the marihuana
    prohibitions. This deemed repeal has never been remedied.

(2)       The
    decision in
R. v. Krieger
, 2000 ABQB 1012 is deemed to have repealed the
    marihuana production offence in s. 7 of the
CDSA
.

(3)       The
    decisions in
Sfetkopoulos v. Canada (A.G.)
, 2008 FC 33,
Sfetkopoulos
    v. Canada (A.G.)
, 2008 FCA 328

and
R. v. Beren
, 2009 BCSC 429

have invalidated the marihuana prohibition retroactive to at least December
    3, 2003.

STANDING

[12]

The Crown challenges the standing of the appellants Pallister, McIntyre
    and MacDonald to obtain the broad forms of relief they sought in their notices
    of application. It is open to Pallister and McIntyre to defend the criminal
    charges brought against them by challenging the constitutional validity of the
    laws under which their charges are brought. The charges against MacDonald have already
    been withdrawn, thus he no longer has standing for this type of argument. The
    standing of Pallister, McIntyre and MacDonald to seek the broader forms of
    relief such as prohibiting prosecution of marihuana offences would depend upon
    whether they should be given public interest standing in accordance with the
    test set out in
Canadian Council of Churches v. Canada
,[1992] 1 S.C.R.
    236.  We have decided not to address the standing issue because we are satisfied
    that their claims can be disposed of by dealing with the issues raised on the
    merits. Their claims for relief all hinge on the theory that the marihuana
    prohibitions in the
CDSA
have not been in effect since August 1, 2001,
    what the appellants refer to as Terry Parker Day. For the reasons developed
    below, that argument has no merit. While the marihuana possession prohibition
    was not in force from July 31, 2001 to October 7, 2003 as a result of the
    combined effect of
Parker
(2000) and
Hitzig
, that offence as well
    as the production offence in the
CDSA
, have been in force since October
    7, 2003. No court, so far as we are aware, has ever struck down the possession
    for the purpose offence. That offence has always been in force.

THE SUBSTANTIVE ARGUMENTS

Background

[13]

The history in Ontario of the issues raised by the appellants begins
    with this courts decision in
Parker
(2000)
.
That history is more
    fully set out in our reasons in Mr. Parkers case which are being released
    at the same time as these reasons. These reasons must be read with the reasons
    in Mr. Parkers case to fully appreciate the history of the arguments raised by
    these appellants. Mr. Parker suffered from a severe form of epilepsy which he
    found was alleviated better by smoked marihuana than by conventional treatment.
    At his criminal trial he challenged the constitutionality of the
CDSA
criminal
    prohibition of marihuana possession on the basis that it infringed his s. 7
Charter
rights to liberty and security of the person. This court agreed, declaring
    the provision invalid to the extent of the constitutional inconsistency, but
    suspending its declaration for 12 months to give the government time to craft a
    legislative response.

[14]

In response to
Parker
(2000) the federal government enacted the
MMAR
,
    which came into force on July 30, 2001. In
Hitzig
this court determined
    that the
MMAR
regime was unconstitutional as it did not adequately
    provide for a lawful supply of marihuana. Importantly, however, the court in
Hitzig
did not strike down the
MMAR
in its entirety or declare s. 4 of the
CDSA
to be of no force or effect.  Rather, this court brought the
MMAR
into
    compliance with the
Charter
by striking down s. 41(b) (which prohibited
    a licensed producer from growing for more than one authorized-to-possess holder)
    and s. 54 (which prohibited more than three licensed producers from producing
    in common).

[15]

Hitzig
created a retrospective period of invalidity of the
    prohibition of marihuana possession dating back to July 31, 2001 (the date that
    the suspension of invalidity in
Parker
(2000) ran out). Going forward,
Hitzig
made the prohibition of marihuana possession fully constitutional in
    Ontario as of October 7, 2003 (the date of the
Hitzig
decision).

[16]

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

SOR/2003-387. A
    new provision was added to Part IV of the
MMAR
which enabled the
    Governments supply of dried marihuana to be shipped directly to persons
    authorized-to-possess. Sections 41(b) and 54 were re-enacted in their original
    form as sections 41(b.1) and 54.1. As we explain in
Parker
, the fact
    that the government re-enacted ss. 41(b) and 54, when it revised the
MMAR
in
    response to
Hitzig
, did not retroactively resurrect the effect of the
Parker
(2000) decision striking down the prohibition.

1.         The marihuana offences remain in full
    force

[17]

The appellants argue that, in combination,
Parker
(2000)
,
    Hitzig
and
J.P.
have the effect of completely repealing all of the marihuana
    offences set out in the
CDSA
. That is incorrect.  In
R. v. Turmel
(2003),
    231 D.L.R. (4
th
) 190,  released concurrently with
Hitzig
and
J.P.
,

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

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

[18]

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

Krieger
does not assist the
    appellants

[19]

In
Krieger
the Alberta Court of Queens Bench held that because
    Mr. Krieger used marihuana to alleviate his suffering from multiple sclerosis,
    the production prohibition in s. 7(1) of the
CDSA
infringed his s. 7
Charter
rights to liberty and security of the person. The court held that s. 7(1)
    was of no force and effect with respect to marihuana production. The
    declaration of invalidity was suspended for one year to give the government
    time to arrange for a legal source of marihuana for therapeutic use. The
    Alberta Court of Appeal extended the suspension of the declaration until
    further order of the Court. That suspension has never been lifted. In the
    interim, the
Hitzig
line of cases resulted in the
MMAR
which allow
    for lawful access to marihuana for therapeutic use. The constitutional defect
    identified in
Krieger
was thereby remedied during the period of
    suspension and the declaration of invalidity is now moot.

Sfetkopoulos
and
Beren
do
    not assist the appellants

[20]

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

[21]

R. v. Beren
involved a prosecution for production and trafficking
    in marihuana. Koenigsberg J. of the Birtish Columbia Supreme Court relied on
Sfetkopolous
and held that ss. 41(b.1) and 54.1 of the
MMAR
infringed s. 7 of the
Charter
.
    No provision of the
CDSA
was found to be invalid in
Beren
.

[22]

The appellants argue that, by analogy to
Hitzig
and
J.P.
,
Sfetkopolous
and
Beren
have the effect of invalidating all marihuana
    offences retroactively dating back to December 3, 2003. This argument fails for
    several reasons.

[23]

First,
Hitzig
and
J.P.
only affected the constitutionality
    of the offence of simple possession of marihuana, not the offences of
    production or possession for the purpose of trafficking. The foundational
    declaration of invalidity in
Parker
(2000) simply declares that the
    reference to marihuana in Schedule II is of no force and effect for the purposes
    of the possession charge in s. 4 of the
CDSA
. The declaration does not
    extend to any other section of the
CDSA
(
Turmel,
(2003) at para.
    6). Thus, if the appellants argument had merit it could only apply to the
    simple possession charges against the appellants McCrady, Pallister and
    McIntyre.

[24]

Second, the period of retroactive invalidity that the appellants argue
    for would not apply to any of them:

(a)       Retroactive
    invalidity would only work backward from the date of
Sfetkopoulos.
The
    offence dates in the cases of MacDonald, McCrady and Hearn (December 8, 2008,
    February 20, 2009 and April 22, 2009, respectively) are after January 10, 2008 when
    the
Sfetkopoulos
declaration remedied the
Sfetkopoulos
problem.

(b)       The
    offence dates in the cases of Pallister and McIntyre (October 2, 2009 and
    January 7, 2010, respectively) are after paragraph 41(b.1) of the
MMAR
was
    amended in response to
Sfetkopoulos
on May 14, 2009. No court has found
    the amended regulation unconstitutional.

[25]

Third, the offence dates in the cases of McCrady, Hearn, Pallister and
    McIntyre (February 20, 2009, April 22, 2009, October 2, 2009, and January 7,
    2010, respectively) are during the one-year
Beren
suspension of
    invalidity, which began on February 2, 2009. Maloneys offence date (June 6, 2010)
    is after the
MMAR
were amended in response to
Beren
,

on
    March 11, 2010.

[26]

Fourth, although the trial judge in
Beren
declared ss. 41(b.1)
    and 54.1 of the
MMAR
invalid, she made findings of guilt under the
CDSA
(at para. 136). Thus,
Beren
upheld the production and trafficking
    offences as they relate to persons who do not have ATPs under the
MMAR
.

2.         The charges against McCrady and Hearn should
    not be stayed

[27]

The appellants McCrady and Hearn, submit that the charges against them
    should be stayed as marihuana no longer should be a controlled substance. The
    record does not support this position. The appellants submit a list of 25
    complaints related to the
MMAR
. The complaints are not grounded in
    evidence in the record placed before the trial courts or this court. In so far
    as the complaints reference
Sfetkopoulos
and
Beren
, the
    appellants argument

is addressed above. The appellants also make reference
    to the trial decision in
R. v. Mernagh,
2011 ONSC 2121. In that case, Taliano
    J. declared that the prohibitions against possession and production of
    marihuana in ss. 4 and 7 of the
CDSA
are invalid.  However, this court has
    already extended the
Mernagh
suspension of invalidity pending appeal.

THE BENO ARGUMENT

[28]

These appeals are some of many cases that have recently found their way
    to this court either as conviction appeals or attempts at prerogative remedies.
    They all turn on an argument referred to by the appellants as BENO (Bad
    Exemption = No Offence). By the reasons in this appeal and in the companion
    appeal in
Parker
it should now be apparent that this argument cannot
    succeed. This court and other courts have dealt with the so-called Bad
    Exemption by reading in words to fix the constitutional infirmity or by striking
    down the exemption. It was only in
Hitzig
that the effect of the Bad
    Exemption was to retroactively render of no force and effect the s. 4
CDSA
possession
    prohibition as it related to marihuana. That order gave effect to the order of
    this court in
Parker
(2000). In
Parker
(2000),

this court
    gave Parliament a year to fix the problem identified in that case. The effect
    of
Hitzig
was to find that Parliament had not succeeded. Hence the order
    in
Parker
(2000) declaring s. 4 as related to marihuana of no force and
    effect, took effect, but only until October 7, 2003. Put another way, the BENO
    argument only applied to the period from July 31, 2001 to October 7, 2003.

[29]

The appellants have continuing concerns about the
MMAR
regime. In
    their view, the regime is inadequate and fatally flawed. But their views about
    the regime cannot change the fact that since October 7, 2003, with the
    exception of the 2011 decision
Mernagh,
no court has held that the
    marihuana prohibitions are invalid. Since
Parker
(2000) and
Krieger
,
    courts have dealt with defects in the
MMAR
by striking down the
    provisions or reading out offending parts of the regulations. The orders made
    in those cases including
Hitzig, Sfetkopoulos,
and
Beren
, have
    left intact the prohibitions in the
CDSA
. As we have pointed out, the
Parker
(2000)

state of invalidity, as regards the possession offence, ended on
    October 7, 2003. The
Krieger
order of invalidity, as regards the
    cultivation offence, never took effect because of successive orders of the
    trial court and the Alberta Court of Appeal. The order made by Taliano J. in
Mernagh
holding the possession and production marihuana offences of the
CDSA
and
    the
MMAR
to be of no force and effect cannot assist the appellants at
    this point because that order has been stayed.

[30]

Put simply, it is not open to these appellants or others who are
    dissatisfied with the
MMAR
regime to simply refuse to obey the law and
    take the position that the
CDSA
offences are not in effect. If they wish
    to now challenge the validity of any part of the
CDSA
or the
MMAR
they can do so as part of the defence to their charges or by an application in
    the Superior Court of Justice. However, that defence and any application must
    be based upon proper material that clearly demonstrates the constitutional
    infirmity of the
MMAR
and the link between the
CDSA
offences and
    the alleged infirmity in the
MMAR.

CONCLUSION

[31]

The appellants have expressed a shared sense of frustration with the
MMAR
and the medical profession. However, the issues raised are based on a
    fundamental misreading of the state of the law. The marihuana offences set out
    in the
CDSA
remain in full force. The appeals are dismissed.

Signed:           M. Rosenberg J.A.

Robert J. Sharpe J.A.

R. G. Juriansz J.A.

RELEASED:  MR DECEMBER 22, 2011