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    the complainant or a witness shall not be published in any document or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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.D., 2014 ONCA 621

DATE: 20140904

DOCKET: C58888

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.D.

Applicant/Appellant

Lance Beechener, for the appellant

Avene Derwa, for the respondent

Heard and released orally: August 28, 2014

On appeal from the sentence imposed on September 19, 2013
    by Justice Silja S. Seppi of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

A jury found the appellant guilty of three sexual offences committed
    against the same 12 or 13 year old complainant on a single occasion, between
    June 2002 and September 2003. After entering a stay of proceedings on one
    count, the trial judge sentenced the appellant to concurrent terms of
    imprisonment on the remaining counts. The result was a penitentiary sentence of
    three years.

[2]

The circumstances of the offence may be stated briefly.

[3]

The complainant was a friend of the appellants daughter. The appellant picked
    the complainant up at school and drove her to his home on the pretext that she
    would be meeting his daughter there. The appellant assured the complainant that
    his daughter would arrive home shortly from a medical appointment.

[4]

When the appellant and the complainant were alone in the appellants
    home, the appellant made the complainant watch him urinate, exposed her to
    pornography, and touched his genitals in front of her. She was unresponsive.

[5]

The appellant retrieved a knife from the kitchen. He sat down beside the
    complainant on the couch, knife in hand. He kissed her twice. Again, she was
    unresponsive. He asked her to kiss him and lick him as he held the knife to her
    collarbone. She refused. He led her upstairs and asked her whether she wanted
    to test the mattress in the master bedroom. She declined.

[6]

The appellant and complainant returned downstairs. There he demanded
    that she remove her clothes and dance for him. He had the knife in his hand. She
    complied. During the dancing, the appellant made some sexually-charged comments
    about her body, then cupped her breasts and complimented them. The appellant
    put $100-$200 in cash on the table. He told the complainant to take it. She
    did.

[7]

The appellant was sentenced on these offences in September 2013, when he
    was 48 years old. He had been involved in a workplace accident 24 years earlier
    and suffered from a permanent physical disability as a result. He was not
    employed at the time of the offences. Then, as now, his sole source of income
    is disability pensions.

[8]

In 2008, the appellant was convicted of several sexual offences. The
    complainants were his daughter and several of her friends. Each complainant was
    a teenager. The offences involved, among other things, repeated acts of sexual
    intercourse. Those convictions attracted a six year penitentiary sentence and
    the usual ancillary orders.

[9]

The appellant was granted day parole and transferred to a halfway house.
    He sought but was refused full parole when he was eligible. The Parole Board
    determined that he should continue on day parole because, by then, the charges
    of which he now stands convicted had been laid. On his mandatory release date,
    he moved in with his parents, who had then remained supportive of him throughout.

[10]

During
    his incarceration and thereafter on day parole, the appellant had cooperated
    with correctional authorities. He participated in sexual offender counselling. But
    when the jury found him guilty of the offences that are the subject of this
    appeal against sentence, his cooperation ceased. His statutory release was
    revoked. When sentenced on these charges, he had a
remanet
of about
    four months in connection with the 2008 sentence.

[11]

The
    appellant identifies two separate errors in the reasons of the sentencing judge
    which he says warrant a reduction of the sentence. He says the sentencing judge
    gave no effect to the principle of totality and accorded inadequate weight to
    the objective of rehabilitation.

[12]

The
    appellant is on firm ground in his submission that the reasons of the
    sentencing judge make no mention of the totality principle. That said, the
    sentencing judge was well aware of the
remanet
of the earlier sentence
    and when it expired. Her failure to direct that the current sentence be served
    consecutively to the prior sentence means that the sentence under consideration
    here will be served concurrently with the prior unexpired sentence.

[13]

The
    failure of the sentencing judge to expressly state that she had considered the
    principle of totality disentitles the sentencing judges decision to the deference
    that is normally its due. Despite the lack of deference, however, we would not
    interfere with the sentence imposed.

[14]

In
    our view, a sentence of imprisonment of three years, perhaps more accurately,
    two years and eight months, was well within the appropriate range of sentence
    for these offences.

[15]

The
    offences involved a measure of planning on the appellants part and a betrayal
    of a young persons trust. When the appellant did not get his way, he
    introduced a knife as a tool of intimidation. He degraded the complainant by
    making her dance while naked, by the comments he made about sexy women and good
    women, and further, by offering her money.

[16]

The
    paramount sentencing principles in this case, as s. 718.01 instructs us, are
    denunciation and deterrence. Both statutorily and factually, rehabilitation
    occupied a lesser place in the sentencing analysis. While the appellant, during
    sentence and while on day parole, had participated in counselling programs, his
    renunciation of them on conviction for these offences does not augur well for
    his future rehabilitative prospects. Greater emphasis on rehabilitative
    prospects was not warranted. Nor does application of the totality principle
    warrant our interference with the sentence imposed.

[17]

We
    note that trial counsel for the appellant, who must have been alive to the
    prospect that the sentencing judge might well order the three year sentence
    sought by the trial Crown to be served consecutively to the prior sentence,
    advanced no argument on the point. We do not doubt that an effective sentence of
    eight years and eight months is a long sentence. But it is not beyond the range
    of appropriate sentences for the appellants conduct. A substantial penitentiary
    sentence was warranted. The sentence imposed, in our view, reflects no error in
    principle.

[18]

While
    leave to appeal sentence is granted, the appeal from sentence is dismissed.

David
    Watt J.A.

M.
    Tulloch J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bell, 2014 ONCA 665

DATE: 20140925

DOCKET: C58091

Hoy A.C.J.O., Gillese and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Bell

Appellant

Howard L. Krongold, for the appellant

Croft Michaelson, for the respondent

Heard and released orally:  September 4, 2014

On appeal from the
Canada Evidence Act
Ruling s.
    37 by Justice Martin S. James of the Superior Court of Justice, dated
    December 12, 2013.

ENDORSEMENT

[1]

In cases involving informer privilege, we begin by recalling the
    admonition of the Supreme Court of Canada in the seminal case of
R. v. Leipert
,

[1997] 1 S.C.R. 281:

Courts must exercise great care not to unwittingly deprive
    informants of the privilege which the law accords them.

and from there move to the more recent decision of
    this court in
R. v. Omar
(2007), 218 C.C.C. (3d) 242 (Ont. C.A.) where
    Justice Sharpe on behalf of the court noted that

The privilege is a hallowed one, and it should be respected scrupulously.

[2]

Every case is fact specific and must be considered on its own particular
    facts.  In some cases, for example, whether an informant has a criminal record
    may not tend to identify an informant and in others it could.

[3]

As the court below noted, at para. 6 of the reasons:

In discharging the courts duty, , the essential question
    becomes:

What information may tend to identify the informant?

[4]

In this case, the incident leading to the appellants arrest took place
    in a small community. The information Officer Hicks received from the informant
    was:

-        the
    appellants identity

-        that
    on that day he would be in possession of 2 packages of      cocaine weighing
    between 1/8 and 1/4 ounces

-         he
    would be transporting the drugs in a white Dodge Intrepid     motor vehicle
    about the year 2000 bearing Ontario Plate     BAKJ720

-        where
    the drugs were being taken from and delivered to.

[5]

The application judge carefully reviewed the law in this area and there
    is no doubt, reviewing the transcript of the argument and his interaction with
    counsel, that he was fully aware of the factual circumstances before him and
    well informed as to the applicable law. After considering full submissions, he
    allowed the Crowns application and denied disclosure of the information sought
    by defence counsel.

[6]

In our view, there is no error.  The appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

E.E.
    Gillese J.A.

J.
    MacFarland J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Best, 2014 ONCA 666

DATE: 20140926

DOCKET: C58330

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chuck Best

Appellant/Applicant

Robert J. Reynolds, for the appellant

M. David Lepofsky, for the respondent

Heard: September 23, 2014

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 31, 2014 by Justice Robert F. Scott of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on November
    9, 2012 by Justice Stephen J. Hunter of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This is not a case for leave to appeal.  There are no jurisprudential
    issues raised.  Nor, in our view, has the applicant demonstrated that any of
    the proposed grounds of appeal raise questions of law that can be said to have
    a strong likelihood of success.

[2]

They are, in our view,
arguments that
    were made to and addressed by the Summary Conviction Appeal Court judge.  We
    see nothing in his reasons that would support the argument that he fell into
    legal error in the manner in which he addressed those arguments.

[3]

Leave to appeal is refused.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Block, 2014 ONCA 643

DATE: 20140918

DOCKET: C58776

Simmons, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Block

Appellant

Aaron Wine, for the appellant

Joseph Selvaratnam, for the respondent

Heard: September 16, 2014

On appeal from the conviction entered on January 4, 2014 and
    the sentence imposed on January 4, 2013 by Justice Paul L. Bellefontaine of the
    Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown very fairly concedes that if the court is prepared to accept
    the fresh evidence, this appeal should be allowed.

[2]

Based on our review of the fresh evidence and the transcript of the
    guilty plea, we are satisfied that fresh evidence meets the
Palmer
criteria.

[3]

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


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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. E.H.,
    2014 ONCA 622

DATE: 20140904

DOCKET: C54595

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.H.

Appellant

Robert C. Sheppard, for the appellant

Michael Perlin, for the respondent

Heard and released orally: August 27, 2014

On appeal from the conviction entered on February 17,
    2011 by Justice T. David Little of the Superior Court of Justice, sitting with
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual touching and invitation to sexual
    touching after a jury trial. He appeals his conviction on two grounds. Each
    ground relates to the trial judges final instructions to the jury.

[2]

For all practical purposes, this was a two witness case.

[3]

The complainant was four years of age at the time of the conduct alleged
    to constitute the offences of which the appellant was convicted. Her evidence
    at trial consisted of her videotaped complaint admitted under s. 715.1 of the
Criminal
    Code
, and her testimony at trial given by closed circuit television under
    s. 486.2. The essence of her complaint was that on several occasions while they
    were sitting on a couch watching television, the appellant took her hand and
    placed it on his penis. After a brief period, the appellant removed her hand
    from where he had placed it and told her that he loved her.

[4]

The appellant testified at trial. He said that on one occasion, the
    complainant, on her own initiative, put her hand down the front of his shorts
    and touched his penis. He was not wearing underwear. The appellant said he
    panicked, moved the complainant away from him and went upstairs. He returned
    wearing a pair of jeans, a belt and his top.

[5]

The first ground of appeal attacks the adequacy of the trial judges
    instructions on the burden and standard of proof. More specifically, the
    complaint is that the trial judge failed to give an express
W.D.
instruction, in terms, or by language that amounted to its functional
    equivalent.

[6]

During the pre-charge conference, the trial judge indicated that he
    proposed to include a
W.D.
instruction in his charge. Unfortunately,
    he failed to do so. Our task is to determine whether the final instructions,
    viewed as a whole, would have left the jury under any misapprehension about the
    applicable burden and standard of proof:
R. v. Y. (C.L.)
, [2008] 1
    S.C.R. 5, at paras. 7-9.

[7]

The purpose of a
W.D.
instruction is to ensure that the jury
    does not regard its decision as involving an either/or choice, rather that
    the jurors understand that they must decide, based on the whole of the
    evidence, whether they are left with a reasonable doubt about an accuseds
    guilt:
Y. (C.L.)
, at para. 6.

[8]

For several reasons, we would not give effect to this ground of appeal.

[9]

First, we note that the
W.D.
formula is not some magic
    incantation, omission of which is fatal. Indeed, in
W.D.
itself,
    despite the trial judges error, similar to what occurred here, in instructing
    the jury that they were engaged in a credibility contest, the conviction was
    nonetheless upheld: see
Y. (C.L.)
, at para. 8. The issue is not one of
    form, but rather one of substance. The issue is whether, in substance, the
    instructions, considered as a whole, left the jury with the impression that, in
    the end, they had simply to choose between the two versions of the events.
    Taken as a whole, we are satisfied that the instructions left no such erroneous
    impression in this case.

[10]

Second,
    as the appellant acknowledges, the instructions on the presumption of
    innocence, the burden of proof and the standard of proof were complete and
    correct. The jury was told that the Crown had to prove the guilt of the
    appellant beyond a reasonable doubt and that a demonstration of probable or
    likely guilt was not good enough. They were also told that if they were not
    sure of the appellants guilt, they were to find him not guilty.

[11]

Third,
    as the Supreme Court of Canada observed in
R. v. Daley
, 2007 SCC 53,
    at para. 58, the charge to the jury does not take place in isolation, but in
    the context of the trial as a whole. Appellate review must have regard to that
    context and take into account the addresses of counsel which may fill some gaps
    left in the charge, even though they are not proxies for it: see,
R. v.
    Pomeroy
, 2008 ONCA 521, at para. 117. In this case, the closing addresses
    of both counsel tracked the
W.D.
framework. Nothing in the charge
    contradicted or qualified what counsel said.

[12]

Finally,
    trial counsel for the appellant did not object to the charge on this ground,
    apparently satisfied that the instructions left the issues fairly for the jurys
    consideration from the defence point of view.

[13]

The
    second ground of appeal concerns what the trial judge told the jury about the
    testimonial accommodation made for the complainant. Here, as I have said, the
    complainant testified from outside the courtroom as s. 486.2 permits. The trial
    judge made specific mention of the manner in which the complainant testified
    when discussing how to assess the evidence. He said, in particular, this:

How do you assess the evidence?

In this case, it is quite important because of the manner and
    the nature of the witnesses. We had a video of a witness who was not in court
    and was not sworn to tell the truth sitting here in the witness box as we
    usually do.

You are to disregard that difference. There is a reason, as I
    told you, why a young person under circumstances such as this, can testify in
    the absence of the accused. That was done. The reason is that they may be
    intimidated by the presence of the accused and not tell the truth. So the law
    allows that to take place.

[14]

The
    appellant says that this instruction had the effect of implying that the
    complainants credibility was enhanced because of the manner in which she was
    permitted to testify.

[15]

We
    do not agree.

[16]

Testimony
    from outside the courtroom is one of a handful of procedural mechanisms
    available to facilitate youthful witnesses giving evidence in prosecutions for
    sexual offences. Where one of these testimonial accommodations is utilized,
    trial judges typically instruct jurors that they are to take nothing from the
    fact that the complainant or witness gave his or her evidence in a different
    way than other witnesses. And that is what occurred here.

[17]

While
    the language chosen by the trial judge here was unfortunate and did not track
    the terms used in the available specimen jury instructions, we are not
    satisfied that the jurors would have concluded from what was said, that the
    complainant was thereby a more truthful witness because of the testimonial
    accommodation. We would not give effect to this ground of appeal.

[18]

For
    these reasons, the appeal is dismissed.

David
    Watt J.A.

M.
    Tulloch J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Ferguson, 2014 ONCA 673

DATE: 20140930

DOCKET: C58504

Epstein, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Ferguson

Appellant

David C. Besant, for the appellant

Jennifer Crawford, for the respondent

Heard: September 22, 2014

On appeal from the conviction entered on December 3, 2013
    and the sentence imposed on February 25, 2014 by Justice L. Chester of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

On January 27, 2012, at approximately 8:00 p.m., the appellant was
    driving his car westbound when, without warning, he crossed the centre line of
    the road and struck an oncoming vehicle, injuring its two passengers.  At the
    time, the appellant was in the midst of a breakup with his girlfriend and was
    feeling suicidal. Immediately after the impact, the appellant was heard to yell
    that he wanted to die and was found in the drivers seat, slashing his wrists.

[2]

The appellant was charged with dangerous driving causing bodily harm and
    criminal negligence causing bodily harm. He was acquitted of the second charge
    and convicted of the first.  He received a 90 day intermittent sentence with
    one year probation and a two year driving prohibition.

[3]

The appellant appeals both conviction and sentence.

[4]

With respect to conviction, the appellants primary position is that the
    trial judge erred in his analysis of the
mens rea
component of the
    offence of dangerous driving causing bodily harm and that the verdict is
    unreasonable.  The appellant also submits that the trial judge erred in
    rejecting his testimony that the accident was the consequence of a momentary
    lapse of attention that took place on an icy road.  The appellant also asserts
    that the trial judge erred in failing to give sufficient reasons for finding
    his evidence not credible.

[5]

With respect to sentence, the appellant argues that the trial judge
    erred in taking into consideration as an aggravating factor the intention of
    the appellant to commit the offence, when no such finding was made at trial,
    and that the sentence was excessive.

THE CONVICTION APPEAL

[6]

There is no issue over the
actus reus
.  Viewed objectively, the
    appellants failure to confine his car to his own lane was dangerous to other
    users of the road.

[7]

The trial judge reviewed the leading cases of
R. v. Roy
, [2012]
    2 S.C.R. 60 and
R. v. Beatty
, [2008] 1 S.C.R. 49, in which the Supreme
    Court considered the
mens rea
element of the offence of dangerous
    driving.  In accordance with the guidance provided in these decisions the trial
    judge instructed himself that a finding that the nature of the driving was
    dangerous was not sufficient to ground a conviction.  The Crown had to prove
    that the degree of care exercised by the accused was a marked departure from
    the standard of care that a reasonable person would observe in the accuseds
    circumstances:
Beatty
, at para. 43.  The trial judge found that the
    Crown had met this burden.  This finding was open to the trial judge on the
    evidence.

[8]

According to
Beatty
at paras. 47 and 48, and
Roy
at
    paras. 34-40, all of the circumstances must be considered in determining
    whether the accused had the necessary
mens rea
for the offence. If the
    evidence establishes that the driving constituted a marked departure from the
    norm, the trier of fact must consider evidence about the accuseds actual state
    of mind, if any, to determine whether it raises a reasonable doubt about
    whether a reasonable person in the accuseds position would have been aware of
    the risk his conduct created:
Beatty
at para. 49.

[9]

The appellants position at trial and on appeal was that, in the absence
    of  evidence of a pattern of dangerous driving preceding the collision, the
    appellants swerving over the centre line was consistent with a momentary lapse
    of attention, and from that conduct alone the necessary
mens rea
could
    not be inferred.

[10]

In
    his detailed reasons, the trial judge reviewed the evidence relevant to the
    appellants state of mind.  Critically, the trial judge did not accept the
    appellants testimony that the collision was caused by a momentary lapse and
    explained why. The trial judge set out his concerns about the appellants
    demeanor, the improbability of some of his testimony and the difficulties
    presented by the conflict between his trial testimony and his statement to the
    police the day after the accident.  We see no reason to interfere with this
    finding.

[11]

In
    the light of the trial judges rejection of the appellants evidence as to the
    cause of the accident, and the evidence of the surrounding circumstances, the
mens
    rea
element of the offence was made out.

[12]

It
    follows that we find no error in the trial judges finding the appellant guilty
    of dangerous driving causing bodily harm.

THE SENTENCE APPEAL

[13]

In
    his reasons for sentence, the trial judge identified several aggravating
    factors, the first of which was his finding that the appellant deliberately
    crossed the centre line.  This constitutes an error as the trial judge, in his
    reasons for conviction, made no such finding and the Crown did not, in the
    course of the sentencing proceeding, seek to prove this beyond a reasonable
    doubt as required by
R. v. Gardiner
, [1982] 2 S.C.R. 368, at pp.
    415-17.

[14]

As
    a result of this error the sentence imposed is not entitled to the deference it
    would normally attract.  This court is in the position to determine a fit
    sentence, taking into account the applicable sentencing principles,
    particularly specific and general deterrence.

[15]

While
    the appellant is a youthful first offender, the offence is serious and the
    consequences in this case, particularly those experienced by one of the
    victims, a young child, are also serious.  While the trial judge erred by
    including an unproven matter as an aggravating factor, we are nonetheless of
    the view that the sentence is fit.

DISPOSITION

[16]

For
    these reasons, the conviction appeal is dismissed.  Leave to appeal sentence is
    granted and the sentence appeal is dismissed.

Gloria
    Epstein J.A.

K. van
    Rensburg J.A.

M.L.
    Benotto J.A.


WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.W., 2014 ONCA 628

DATE: 20140909

DOCKET: C57070

Hoy A.C.J.O., Gillese and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.

Applicant/Appellant

Paul Calarco, for the appellant

Michael Fawcett, for the respondent

Heard: September 4, 2014

On appeal from the conviction entered on November 29,
    2012 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was found guilty of three sexual offences and sentenced to
    three and a half years imprisonment.

[2]

Initially, the appellant appealed against both conviction and sentence
    but he later abandoned his appeal against sentence.  His appeal against
    conviction rests largely on his submission that the trial judge erred in
    assessing the credibility and reliability of the complainant.

BACKGROUND IN BRIEF

[3]

The complainant was born in 1992.  The appellant was born in 1983. They
    met while playing road hockey in their neighbourhood.  At that time, the
    complainant was 9 or 10 and the accused was 17 or 18 years old. Within a year,
    the complainant and some other boys, including his two older cousins, began
    watching movies, playing video games and sleeping over at the appellants home,
    where he lived with his grandmother.

[4]

In 2009, the complainant alleged that between 2001 and 2005, while he
    was under the age of 14, a number of sexual incidents occurred between him and
    the appellant, all in the appellants bedroom when the other boys were not
    present. The appellant testified at trial and denied engaging in any sexual
    acts with the complainant.

[5]

At some point, the complainant stopped visiting and speaking with the
    appellant, but later resumed those activities.

[6]

In his reasons for conviction, the trial judge stated that both the
    complainant and the appellant gave their testimony in a straightforward and
    direct manner, answered questions without hesitation, and were not caught in
    any material inconsistency or shaken on cross examination.  He then gave
    reasons for accepting the complainants testimony and rejecting that of the
    appellant.

THE ISSUES

[7]

The appellant submits that the trial judge erred by:

1.

Overemphasizing emotional demeanour;

2.

Equating the level of detail of the complainants evidence with
    reliability;

3.

Failing to address the inconsistent explanations that the complainant
    gave for failing to disclose earlier;

4.

Treating speculative responses from the appellant as indications that
    the complainants testimony was reliable; and

5.

Applying different levels of scrutiny to the evidence of the Crown and
    the defence.

ANALYSIS

[8]

We begin by noting that the appellant takes no issues with the trial
    judges articulation of the relevant legal principles.  He submits that the
    trial judge erred in his application of those principles.

[9]

We do not agree.  In our view, the trial judge committed none of the
    alleged errors.

1.

With regard to the first issue, the trial judge was entitled to consider
    demeanour as one aspect of his assessment of credibility.  The trial judge did
    not treat demeanour as dispositive but, rather, as one of several reasons for
    believing the complainant.  He gave cogent reasons for accepting the
    complainants evidence, including such things as the opportunity for the events
    to have occurred, and the fact that there was a period of time during which the
    complainant avoided contact with the appellant and stopped going to his home.  In
    relation to opportunity, the trial judge noted that apart from the appellants grandmother,
    the other witnesses testified that the complainant slept overnight, alone, with
    the appellant on numerous occasions.  In relation to the break in contact, he noted
    the corroboration of various witnesses to the fact of the break in contact,
    although they differed on the length of that period.

2.

As for the second issue, contrary to the appellants submissions, the
    trial judge did not equate the detail in the complainants testimony about
    attempted anal sex and incidents of oral sex with reliability.  Rather, the
    trial judge used the level of detail as one indicator of reliability, noting
    that on cross examination no inconsistencies were revealed about those matters.

We see nothing in the
    suggestion that the trial judge implicitly used the lack of detail in the
    appellants evidence to reject it.  Nothing in the reasons supports this
    submission.

3.

We see nothing in the appellants third submission, which is based on the
    varying explanations that the complainant gave for not making an earlier report
    of the abuse.  Those various explanations included almost starting to believe
    it didnt happen, just want[ing] it to go away, thinking it had to be [his]
    fault and trying to forget about it.  Giving a variety of explanations does
    not necessarily mean that they are inconsistent.

4.

The fourth ground of appeal is based on para. 165 of the trial judges
    reasons for conviction, in which the trial judge states that in the appellants
    testimony, the appellant acknowledged that something must have happened to
    the complainant.

The record supports the
    trial judges statement.  For example, in examination in chief, in response to
    a question as to how he felt after learning of the allegations, the appellant
    volunteered that the only thing I could think of is that  someone touched him
    or something like that happened.

5.

We do not accept that the trial judge applied different standards of
    scrutiny to the evidence of the Crown and the defence.  There is nothing to
    suggest that the trial judge did anything other than approach each sides
    evidence with the same careful review.

DISPOSITION

[10]

Accordingly,
    the appeal against conviction is dismissed.  The appeal against sentence is
    dismissed as abandoned.

Alexandra Hoy A.C.J.O.

E.E. Gillese J.A.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Millwood, 2014 ONCA 649

DATE: 20140922

DOCKET: C56110

Simmons, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leighton Millwood

Applicant/Appellant

Martin Kerbel, Q.C., for the appellant

Michael Perlin, for the respondent

Heard: September 19, 2014

On appeal from the conviction entered on September 10,
    2012 by Justice Peter H. Wilkie of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The sole issue at trial was whether the appellant knew the vehicles were
    stolen.  The trial judge rejected the appellants evidence at trial that he did
    not know the vehicles were stolen based on a finding that the appellant was not
    a credible witness.  In doing so, he identified numerous inconsistencies in the
    appellants evidence.  The appellant submits the credibility finding was
    unreasonable.

[2]

We disagree.  On our view of the record the finding was open to the
    trial judge to make.

[3]

The appellant also challenges the propriety of the trial judges
    statement that he found the explanations that the appellant gave to the police
    at the time he was arrested could not reasonably be true.  He contends that
    use of this terminology reversed the burden of proof.

[4]

We do not accept this submission.  The impugned statement related to
    whether the doctrine of recent possession could apply.  In any event, on our
    review of the trial judges reasons, he went on to make a finding of guilt
    without relying on the doctrine of recent possession.

[5]

The appeal is therefore dismissed.


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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

(2)

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.G., 2014 ONCA 633

DATE: 20140912

DOCKET: C55106

Hoy A.C.J.O., MacFarland and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

David E. Harris, for the appellant

Michelle Campbell, for the respondent

Heard and released orally:  September 5, 2014

On appeal from the conviction entered by Justice T.D. Ray,
    of the Superior Court of Justice, sitting without a jury, dated October 27,
    2011.

ENDORSEMENT

[1]

The appellant was charged with the sexual touching and sexual assault, between
    March 1, 2007 and March 31, 2009, of the complainant, a young child. The
    indictment did not particularize where or how many times the touching and
    assault allegedly occurred.

[2]

The trial judge found that the appellant touched the complainant for a
    sexual purpose and sexually assaulted her on several occasions in the course of
    her access visits with her mother.

[3]

The appellant argues that the trial judge erred when he found that the
    first of the incidents occurred in the appellants truck and that this error
    played an essential part in the trial judges reasoning process resulting in
    the appellants convictions. The appellant submits that the evidence of the
    complainant, properly interpreted, was that the sexual touchings and sexual
    assaults began at a time when the appellant  her mothers then boyfriend
    picked up the complainant for her access visits in his truck, alone, and not
    that the first incident occurred in the appellants truck.

[4]

Even accepting that the trial judge erred in concluding that the first
    incident occurred in the appellants truck, we are not persuaded that such an
    error played an essential part in the trial judges reasoning process resulting
    in the appellants convictions.

[5]

We reject the appellants argument that the trial judges finding that other,
    subsequent incidents of sexual touching and sexual assault occurred flowed from
    the trial judges finding that the first incident happened in the appellants
    truck.  The trial judge considered each incident separately. He noted that the complainant
    described the other assaults in graphic detail.

[6]

Nor do we accept the appellants argument that if the trial judge erred,
    the error tainted his credibility findings.  As the trial judge noted in
    finding that the first incident occurred in the appellants truck, the
    complainants stepmother confirmed the complainants evidence that that the
    appellant sometimes picked the complainant up in his truck alone. If  as the
    appellant argues  this part of the stepmothers evidence played a role in the
    trial judges assessment of the overall credibility and reliability of the complainant,
    logically, the value of such evidence would not have been affected by an error
    with respect to the location of the first incident.

[7]

Accordingly, this appeal is dismissed.

Alexandra Hoy A.C.J.O.

J.
    MacFarland J.A.

David
    Watt J.A.


WARNING

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

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Quesnelle, 2014 ONCA 634

DATE: 20140912

DOCKET: C53116

Hoy A.C.J.O., MacFarland and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent Quesnelle

Appellant

Najma Jamaldin, for the appellant

Susan Reid, for the respondent

Heard and released orally:  September 5, 2014

On appeal from the conviction entered by Justice Thorburn,
    of the Superior Court of Justice, dated June 4, 2010 and the sentence imposed
    on July 27, 2010.

ENDORSEMENT

[1]

The appellant does not argue that the sentence imposed by the trial
    judge was demonstrably unfit.  Indeed, the sentence imposed was essentially
    that sought by the defence.  Rather, the appellant contends that this court
    should vary the sentence imposed based on the fresh evidence he seeks to have
    admitted.

[2]

That evidence addresses three matters. First, the appellant now asserts
    that he is Métis and argues that this court should apply
Gladue
and,
    based on
Gladue
, reduce his sentence.  Second, he provides evidence of
    his efforts at rehabilitation since he was sentenced.  Third, he documents the
    period during which he was on bail pending appeal to this court and then to the
    Supreme Court of Canada and says that this period of restricted liberty warrants
    a reduction in sentence.

[3]

We are not persuaded that the proposed fresh evidence warrants reducing
    the sentence imposed by the trial judge.

[4]

Aboriginal Legal Services has been unable to confirm the appellants
    status.  His troubled background was, in any event, before the trial judge at
    the time of sentencing.

[5]

Further, the trial judge appropriately considered the appellants prospects
    of rehabilitation in fashioning the sentence that she did.  As she noted, in
    cases such as this that involve violence and sexual exploitation, denunciation
    and deterrence are paramount.

[6]

Nor are we persuaded that in this case the sentence imposed should be
    reduced because of the time that the appellant was on bail pending appeal.  The
    sentence imposed by the trial judge for these violent crimes was at the low end
    of the range.  And the restrictions on the appellants liberty while on bail
    were moderate.  Except for the period when post-conviction charges of
    threatening one of the complainants were outstanding, the bail conditions
    imposed permitted the appellant to work, to attend medical appointments and to
    attend Cocaine Anonymous and medical appointments.

[7]

Accordingly, although leave to appeal sentence is granted, the appeal
    from sentence is dismissed.

Alexandra
    Hoy A.C.J.O.

J. MacFarland
    J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Quinn, 2014 ONCA 650

DATE: 20140922

DOCKET: C58258

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emmet Quinn

Appellant

John Hale, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: August 28, 2014

On appeal from the convictions entered on September 17,
    2013 by Justice
D. Kent Kirkland
of the Ontario Court
    of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions on February 4, 2013 for break and
    enter with intent and dangerous driving and on February 20, 2013, for failing
    to stop a vehicle while being pursued by the police and for mischief.

[2]

The facts can be briefly summarized as follows.
On February 4, 2013, one Joshua McLaughlin received a
    text message from his girlfriend who lived but minutes away from him. She was
    concerned about someone knocking at the back door. Mr. McLaughlin arrived at
    the home almost immediately to find a man hanging through the window of the
    back door. Mr. McLaughlin saw him at this point for two to three seconds. He
    chased the intruder down the street and eventually jumped in front of his
    vehicle to stop him from leaving. The intruder was apparently saying I am
    sorry, I got the wrong house. Mr. McLaughlin testified that he got a good look
    at him. The intruders face was illuminated by a street light and by the light
    of his cars dashboard. This entire exchange lasted 10 to 20 seconds.

[3]

The intruder drove his
    car directly towards Mr. McLaughlin who jumped on the hood in order to avoid
    getting hit. He then slid off the hood damaging the side mirror and the windshield
    wipers. Mr. McLaughlin testified that he had the three seconds to memorize the
    license plate. As it turned out, he memorized accurately but for one number.

[4]

Mr. McLaughlin described
    the intruder to police in very general terms only and did not pick him out of
    the photo lineup. He said that the photos were blurry and the two and a half by
    two inch pictures were very small.

[5]

On February 20, 2013,
    police officers, who had been watching the appellant, saw him commit a break
    and enter at a different location. (The appellant pleaded guilty to this
    charge.) He left the scene driving the same car that Mr. McLaughlin had seen on
    February 3.

[6]

Four police cars then proceeded
    to box-in the appellants car. Three police cars, lights activated,
    surrounded him in a high risk take down. One police car was at the drivers
    side, one was at the passengers side and one was in front of him. The
    appellant then reversed. He ran into the fourth police car that was just
    arriving to block him in from behind.

[7]

The issue with respect
    to the February 4 events is one of identity. The appellant asserts that the
    trial judge confused credibility with reliability and had insufficient facts
    upon which to establish the identity of the intruder and driver of the car. In
    our view, the trial judge clearly addressed reliability and, on the evidence as
    a whole, it was open to him to find that identity was proven beyond a
    reasonable doubt. The trial judge referred to the frailties of in-dock
    identification and Mr. McLaughlins failure to identify the appellant in the
    photo lineup.

[8]

The trial judge
    considered the several occasions that Mr. McLaughlin saw the intruders face
    and Mr. McLaughlins excellent memory. The trial judge was satisfied that the
    intruder and the driver of the car was the appellant. This ground of appeal
    fails.

[9]

I turn to the events of
    February 20. The appellant submits that the trial judge erred in convicting him
    of failing to stop during the police pursuit. The appellant argues that the
    police were not pursuing him because they and he had stopped.

[10]

The trial judge
    determined this issue by referring to the dictionary meaning of pursue;
    namely, to follow with intent to overtake or capture. He concluded that what
    the police were doing by boxing him in was intending to overtake or capture
    him. While not deciding the outer limits of s. 249.1 of the
Criminal
    Code
, we agree with the trial judge. This
    was a fast-paced event that should not be viewed on a frame-by-frame basis. The
    police were pursuing the appellant in their vehicle. He failed without
    reasonable excuse  and in order to evade police  to stop the vehicle as soon
    as reasonable in the circumstances. This ground of appeal fails.

[11]

The mischief conviction
    arises out of the fact that the appellant put his car in reverse and hit the
    police car. The appeal of the mischief conviction is based on the submission
    that the trial judge failed to turn his mind to the
mens rea
of mischief. It was submitted that there was no
    evidence of intent. It was open to the  trial judge to infer recklessness.
    Clearly, it was reckless, in the circumstances known to the appellant, to reverse
    his vehicle while surrounded by police cars. This ground of appeal also fails.

[12]

For all of these reasons,
    the appeal is dismissed.

David Watt J.A.

M. Tulloch J.A.

M.L. Benotto J.A.