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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this subparagraph
    comes into force, if the conduct alleged involves a violation of the
    complainants sexual integrity and that conduct would be an offence referred to
    in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right
    to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an
    offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to
    make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Burke, 2018 ONCA 594

DATE: 20180627

DOCKET: C63913

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Raymond Burke

Respondent

Lorna Bolton for the Crown, appellant

Brian Eberdt for the respondent

Heard: June 19, 2018

On appeal from the order of Justice J.A. Thorburn of the Superior
    Court of Justice with reasons reported at 2017 ONSC 3261.

REASONS FOR DECISION

[1]

The respondent was charged with the abduction
    and violent sexual assault of two different women in 1986. He fled to the
    United States of America, in violation of the terms of his bail. A Canada-wide
    warrant was issued for his arrest. He assumed a false identity. In 1987, he was
    charged in the United States with assault, aggravated robbery and kidnapping of
    a third woman. In 1988, he was sentenced to 52 years imprisonment in the United
    States. At the time, there was no extradition treaty that would have allowed
    Canadian authorities to bring the respondent to Canada to stand trial while he
    was serving his sentence in the United States.

[2]

In 2000, Toronto police were advised that the
    respondent was eligible for parole in May 2013. In 2003, an amendment was made
    to the relevant extradition treaty which would have permitted Canadian
    authorities to seek temporary extradition to proceed with the trial of the
    Ontario charges but no such efforts were made.

[3]

In August 2015, Toronto police were advised that
    the respondent was being released from prison and would be returned to Canada.
    On October 26, 2015 he was deported back to Canada and was arrested on arrival.
    His trial was scheduled to begin July 31, 2017 and be completed, within a
    period less than two years after his return to Ontario. However, the charges
    were stayed on the respondents application alleging that his right to trial
    within a reasonable time had been violated. The Crown appeals.

[4]

We agree with the Crowns argument that these
    charges should not have been stayed, and that all of the delay caused by the
    respondents flight in violation of his bail conditions should be treated as
    defence delay.

Trial judges reasons

[5]

The trial judge held that the Crown ought to
    have sought the temporary surrender of the respondent pursuant to the amendment
    to the extradition treaty between Canada and the United States. She accordingly
    characterized the 12 and one half year period between April 30, 2003 when the
    amendment came into force and October 26, 2015 when the respondent was returned
    to Canada as Crown delay vastly beyond the timeframe articulated in
Jordan
 and also unreasonable under the
Morin
framework.

Analysis

[6]

The trial judge did not have the benefit of the
    analysis in
R. v. Cody,
2017 SCC 31, [2017] 1 S.C.R. 659
. .

[7]

The Supreme Court of Canada held, in both
Cody
and in
R. v. Jordan
, 2016 SCC 27
,
[2016] 1 S.C.R. 631,
that in order to
    determine whether there has been unreasonable delay, defence delay is to be
    deducted from the overall period of delay  from charge to the anticipated end
    of trial.

[8]

In
Cody,
at paras. 26-28,
the Supreme
    Court elaborated on the notion of defence delay and explained it is delay that
    is caused solely or directly by the conduct of the defence and that the
    analysis of defence delay is intended to prevent the defence from benefitting
    from its own delay-causing action or inaction (citation omitted).

[9]

The Supreme Court said further, at para. 30:

The only
    deductible defence delay under this component is, therefore, that which: (1) is
    solely or directly caused by the accused person; and (2) flows from defence
    action that is illegitimate insomuch as it is not taken to respond to the
    charges. As we said in
Jordan
, the most
    straightforward example is [d]eliberate and calculated defence tactics aimed
    at causing delay, which include frivolous applications and requests. [Citation
    omitted.]

[10]

The Supreme Court then went on to describe
    illegitimate defence delay, at paras. 32-34. Defence action may not be
    legitimate in the context of a s. 11(b) application if it is designed to delay
    or if it exhibits marked inefficiency or marked indifference toward delay. The
    defence is not allowed to engage in illegitimate conduct and then have it
    count towards the Jordan ceiling.

[11]

The respondent admitted to Toronto police that
    his express purpose in fleeing was to avoid capture and prosecution. The terms
    of his bail required he remain within the jurisdiction.

[12]

The delay from the time the charges were laid
    until the time the respondent was returned to Canada was illegitimate defence
    delay. It was caused directly by the respondent, whose actions were not taken
    to respond to the charges, but were intended to frustrate them.

[13]

This case is different from others in which
    delay in pursuit of extradition proceedings has been attributed to the Crown,
    such as
R. v. MacIntosh,
2011 NSCA 111, 281 C.C.C. (3d) 291
    affd, 2013 SCC 23, [2013] 2 S.C.R. 200. In
MacIntosh,
the accused was
    lawfully living in another jurisdiction when the charges were laid.

[14]

There is no suggestion that the time following
    the respondents return to Canada in 2015, until the anticipated end of the
    trial, was unreasonable under the
Jordan, Cody
or

Morin

analysis.

[15]

Given that the time remaining after deducting defence delay from
    total delay does not exceed the presumptive 30 month ceiling, there is no need
    to go further and consider whether exceptional circumstances amounting to
    discrete events or particular complexity require further examination. Nor is it
    necessary to consider whether the transitional exceptional circumstances
    analysis should apply:
R. v. Coulter
,
2016
    ONCA 704, 133 O.R. (3d) 433;
R. v. Mallozzi
,
2017
    ONCA 644, 390 C.R.R. (2d) 57.

[16]

Accordingly the appeal is allowed, the stay is
    set aside and the matter is returned to the Superior Court of Ontario for
    trial. Given this conclusion, it is not necessary to address the other
    arguments advanced on appeal.

C.W. Hourigan J.A.

G. Pardu
    J.A.

I.V.B.
    Nordheimer 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), (2.1), (2.2), (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 victim 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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the DRA order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. D.J.B., 2018 ONCA 566

DATE: 20180620

DOCKET: C64116

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.J.B.

Appellant

Delmar Doucette, for the appellant

Andrew Hotke, for the respondent

Heard: June 14, 2018

On appeal from the conviction
    entered on May 24, 2017, with reasons reported at 2017 ONSC 3207, and the
    sentence imposed on August 16, 2017 by Justice R.J. Harper of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

Overview

[1]

The appellant was convicted of two counts each of sexual touching and
    invitation to sexual touching. The offences involve his then nine-year-old
    granddaughter. He was sentenced to 30 months, concurrent on each count. He
    appeals from his convictions and sentence. At the conclusion of the oral
    hearing, we dismissed both appeals with reasons to follow. These are our
    reasons.

[2]

The complainants parents had an acrimonious separation, after which her
    father had access to the children on weekends. He would stay at his parents
    home when he exercised access. This is where the offences occurred.

[3]

The complainants evidence in-chief was introduced pursuant to s. 715.1
    of the
Criminal Code
by way of video.  Among other things, the
    complainant testified to the following incidents:

(a)

She was standing between the
    appellants legs while he was seated in a chair. The appellant told the
    complainant to give him a kiss, after which he placed both hands on her cheeks,
    moved her face so that her mouth went to his lips, and inserted his tongue into
    her mouth. The complainant testified that while her grandfathers tongue was in
    her mouth, her grandmother (T.B.), returned from her volunteer work and
    walked into the room. T.B. yelled at the appellant and slapped him.

(b)

The next day, the appellant told
    the complainant that he wanted to marry her and attempted to kiss her again.
    This time the complainant slapped him.

(c)

On another occasion, the
    appellant and complainant were in a computer room at the grandparents home.
    The appellant told the complainant to remove her clothes. She was afraid and
    complied. He also removed his clothes. The complainant testified that the
    appellant inspected her by squatting down to examine her private and boobs.
    He said that she looked good and sexy. He grabbed her vaginal area with one
    hand and his penis with the other. The complainant described how the appellant
    held his penis like a sausage and wiggled it, like a worm.

(d)

The final incident occurred in
    the kitchen. The appellant asked the complainant to remove her pants and she
    complied. He also removed his pants. He squatted to examine her body and asked
    her if she wanted to have sex. She said no. He was touching his penis and
    moving closer to the complainant when T.B. entered the kitchen and yelled at
    him.

[4]

The trial judge, who had the benefit of viewing the complainants video
    statement and seeing her cross-examined, concluded that the child was credible
    and her evidence reliable.

[5]

He also had the opportunity to observe the complainants grandmother, T.B.,
    testify for the defence. She was an important defence witness because, among
    other things, she denied ever witnessing any inappropriate contact between the
    appellant and complainant. If the trial judge believed T.B., or had a doubt
    arising from her evidence, then the child complainants version of events would
    have been very badly shaken.

[6]

In the end, the trial judge rejected T.B.s credibility, concluding: I
    find that [T.B.] is not a credible witness.  I do not accept [T.B.s] denial
    that she never observed her husband kissing [the complainant], with his tongue,
    nor her denial that she observed [the complainant] and her husband naked from
    the waist down on another occasion. The trial judge gave several reasons for
    rejecting T.B.s credibility. The first ground of appeal relates to those reasons.

First Ground of Appeal
    from Conviction

[7]

The appellant maintains that the trial judge erred in how he approached
    his credibility findings relating to T.B. We disagree.

[8]

We start with the observation that, absent palpable and overriding
    error, the trial judges credibility findings are owed strong deference by this
    court:
R. v. Sanderson
, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para.
    18. We see no such error. We will briefly touch upon each alleged problem.

[9]

First, the appellant argues that the trial judge was wrong to rely upon
    a discrepancy in the evidence between T.B. and another witness in making his
    credibility assessment. That discrepancy relates to how often the appellant
    would accompany T.B. on her volunteer work. Even if the trial judge were wrong
    to note the discrepancy in the two witnesses evidence as reducing their
    credibility, we do not agree that he rested his finding about the credibility
    and reliability of T.B.s evidence on that discrepancy. Rather, his focus was
    on the fact that T.B. admitted that the appellant did not accompany her at
    least 20 percent of the time. Accordingly, her testimony that she was
    absolutely sure that the appellant was
never
alone with the
    complainant was undermined because she could not know if [the complainant] was
    ever alone with [the appellant] during the times when [he] was not with her. It
    was open to the trial judge to come to this common sense conclusion.

[10]

Second,
    the appellant asserts that the trial judge erred by emphatically stating that
    her son
never
took naps when the children were in the house. It was
    open to the trial judge to find that, given T.B.s work schedule, she could
    not have known if [her son] ever slept while the children were awake. Although
    the appellant submits that T.B. was not as emphatic as the trial judge
    suggested, she testified that she would bet [her] life on it that he did not
    have a nap when he was looking after his kids.

[11]

Third,
    the appellant contends that the trial judge erred in how he dealt with a
    statement T.B. had given to the police, where she acknowledged that she had
    once seen the complainant and appellant alone in the computer room. T.B. told
    the police that she just asked the appellant what he was doing alone in the
    dark with the complainant. The appellant is said to have told T.B. that he was
    showing the complainant the lights from a radio he had in the room.

[12]

The
    appellant maintains that the trial judge erred in characterizing T.B.s request
    to know what her husband and their grandchild were doing in a dark room
    together as a demand as opposed to a request. We do not agree. Bearing in
    mind the context, it was entirely open for the trial judge to characterize the
    evidence in this way.

[13]

The
    appellant also submits that the trial judge reversed the onus of proof when he
    referred to the fact that, although the appellant had told T.B. that he was
    showing the complainant lights from a radio, that there was actually no
    evidence that those radio lights were on. We disagree. There was no evidence
    that the lights were on. The trial judge was simply making an observation that
    there was no evidence of radio lights. This did not reverse the burden of
    proof.

[14]

Fourth,
    the appellant claims that the trial judge erred by misapprehending evidence,
    when he said that T.B. testified that the appellant was never ever alone with
    the complainant. The appellant says that her evidence should have been
    understood as meaning never alone in a room with the complainant. We disagree. The
    witness testified that they had never been alone anywhere, ever. It was open
    to the trial judge to come to the conclusion he did about what T.B. meant when
    she said the appellant was never alone with the complainant.

[15]

Moreover,
    it does not assist the appellant to say that T.B. meant the appellant and
    complainant were never alone in a room together, as T.B.s own comments to the
    police, about seeing the appellant and complainant alone in the computer room
    together, belie this suggestion.

[16]

Finally,
    the appellant takes issue with the trial judges treatment of T.B.s evidence
    regarding a police statement where she said: She told Detective [x] that she
    could never imagine [the appellant] kissing [the complainant]. However, she
    could imagine [the appellant] kissing his adult grandchildren who were
    beautiful. The trial judge found this comment disturbing on so many levels.

[17]

The
    appellant argues that the trial judge took T.B.s comments out of context. He
    says that T.B. meant that she could not imagine the appellant passionately
    kissing a child as opposed to an adult. We do not agree. Given what she told
    the police, it was open to the trial judge to come to the interpretation he
    did.

[18]

We
    see no error in his approach to T.B.s credibility or her evidence.

Second Ground of Appeal
    from Conviction

[19]

The
    appellant submits that the trial judge did not conduct a proper analysis of the
    inconsistencies between the complainants and her mothers evidence regarding
    the circumstances surrounding the original disclosure of the offences. He maintains
    that these inconsistencies give rise to an inference of potential collusion
    between the witnesses. We do not agree.

[20]

The
    trial judge carefully addressed the inconsistencies in the evidence, and he confronted
    and resolved the allegation of collusion. We see no error in his approach.

Appeal from Sentence

[21]

The
    appellant also seeks leave to appeal his 30 month sentence. The appeal rests on
    a fresh evidence application. The evidence is said to have been discovered
    shortly after the sentence was imposed.

[22]

The
    complainants mothers victim impact statement, filed at the sentencing
    hearing, described what she perceived as the impact of the offences on her
    daughter. The statement was signed and dated by the mother. The complainant
    then placed a short handwritten note after the mothers signature. The note
    refers to the fact that the complainant was having a hard time telling [her]
    feelings outload [
sic
] and on paper. It says that she had read her
    mothers victim impact statement about what my life is like now and agreed
    with it. The complainant signed and dated her brief comment.

[23]

The
    fresh evidence consists of a lawyers affidavit explaining that, in light of
    information that was discovered shortly after sentence was imposed, the lawyer interviewed
    the complainant. The complainant told the lawyer that, although she recalled
    her mother reading something to her, she could not recall whether her mother
    read her the entire statement.  The complainant said that she simply copied onto
    the page a comment that her mother had prepared for her. The complainant told
    the lawyer that she was concerned that her mother may become angry if she did
    not copy out what had been written.  The complainant disputed a good deal of
    what her mother had written.

[24]

We
    would not admit the fresh evidence for the following reasons.

[25]

The
    burden is on the applicant to establish that the fresh evidence should be
    received on appeal:
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775;
R.
    v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 29-30. He has failed
    to do so.

[26]

Even
    if the hearsay nature of the evidence were to be ignored, the fresh evidence
    would be inadmissible because it cannot reasonably be expected to have
    affected the result:
Sipos
, at para. 29. At its highest, the fresh
    evidence only supports a finding that the complainant does not agree with everything
    her mother said about the impact that the offence has had on her. Even if the
    complainants comments after sentencing had been available at the time of
    sentencing, the mothers victim impact statement  in its entirety  would have
    still been before the court.

[27]

Although
    the reasons for sentence make reference to the complainants brief handwritten agreement
    with the contents of her mothers statement, the sentencing judges reasons
    only make fleeting reference to that fact. The reasons he gives for arriving at
    the disposition appealed from focus on the inherent and indisputable seriousness
    of offences of this nature and the fact that this particular one involved a
    significant breach of trust. As noted by the trial judge, the appellant robbed
    his young grandchild of her sexual innocence.

[28]

Read
    in context, there is no indication that the victim impact statement had an
    effect on sentence. With or without the victim impact statement, the
    appellants sentence would have been the same. The fresh evidence would not
    have affected the result.

[29]

Moreover,
    the applicant has failed to show due diligence. He did not challenge the victim
    impact statement at trial. He did not seek leave to cross-examine either the
    mother or the child before sentence was imposed. Although trial counsel
    suggested that some of the things said in the victim impact statement were
    contrary to the [complainants] testimony  at trial, she did not wish to get
    into the minutiae. Trial counsel was content, properly in our view, to base her
    position on the known and undeniable impact of offences of this nature on
    children:
R. v. D.D.
(2002), 163 C.C.C. (3d) 471 (Ont. C.A.), at
    paras. 35-38. This was a considered and tactical decision made at the time of
    sentencing and should not be second-guessed after sentence has been imposed.

[30]

This
    was a fit sentence.

[31]

The
    conviction appeal is dismissed.

[32]

The
    application to admit fresh evidence is dismissed. Leave to appeal sentence is granted
    and the sentence appeal is dismissed.

David Watt J.A.

K.
    van Rensburg J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dacosta, 2018 ONCA 588

DATE: 20180626

DOCKET: C61678

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Dacosta

Appellant

Mark Halfyard, for the appellant

Christine Tier, for the respondent

Heard and released orally: June 20, 2018

On appeal from the conviction entered on December 18,
    2015 by Justice J.D. Condon of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was acquitted of one count of assault relating to events
    that occurred in the summer of 2013 but convicted of a second count of assault
    relating to events that occurred on December 25, 2014.  He appeals from the
    conviction.

[2]

The appellant and the complainant had been involved in an on-again
    off-again relationship and had a child together in April 2013.  As of December
    25, 2014, the appellant and the complainant were co-parenting their child and
    maintained a non-intimate relationship.

[3]

The appellant advanced two grounds of appeal in oral argument.  First,
    the appellant argues that the trial judge materially misapprehended the
    evidence in finding that the appellant (as opposed to the complainant)
    testified that he invited the complainant to sleep over at his house on the
    evening of Christmas Day 2014 and in concluding that this was because the
    appellant wanted a pleasant evening.  The appellant argues that this finding
    and conclusion were pivotal to the trial judges rejection of the appellants
    version of what happened during the evening.  The trial judge rejected the
    appellants evidence because the appellants claim that he decided to leave and
    not disclose his true destination (the home of his former wife who was out of
    town) effectively sabotaged his desire for a pleasant evening.

[4]

We do not accept this argument.  There was evidence from the appellant
    capable of supporting the finding that he wanted a pleasant evening.  The trial
    judges misstatement of who extended the invitation to the complainant to stay
    overnight was not material to his reasoning.  The appellants evidence about
    failing to disclose where he was going before leaving the house made no sense
    no matter who extended the invitation.

[5]

Second, the appellant argues that the trial judge erred in relying on
    the opinion of the police officer to whom the complainant ultimately disclosed
    her allegations that the complainant did not expect that charges would be laid
    as a result of her disclosure.

[6]

The appellant contends that the trial judge used the officers opinion
    improperly to bolster the complainants position that she did not wish to
    involve the police.  We do not accept this argument.  The so-called opinion
    that the trial judge referred to was merely a compendious summary by the
    officer of the complainants reaction upon being told of the police protocol.  The
    officer also testified as to the specifics of the complainants reaction.

[7]

We do not accept that the complainants statements that accompanied her
    emotional reaction were inadmissible hearsay.  They were not admitted for the
    truth of the statements but rather were an integral part of the complainants
    state of mind and emotional reaction upon being informed of the police
    protocol.

[8]

The appeal is dismissed.

Janet
    Simmons

Grant
    Huscroft J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dobson, 2018 ONCA 589

DATE: 20180628

DOCKET: C61119

Doherty, Pepall and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Dobson

Appellant

James C. Fleming, for the appellant

Eric H. Siebenmorgen and Amy Alyea, for the respondent

Heard:  June 4, 2018

On appeal from the convictions entered on January 15,
    2015, by Justice David Watt of the Superior Court of Justice for first degree
    murder, with reasons reported at 2015 ONSC 2865.

Doherty J.A.:

I

overview

[1]

The appellant killed his two friends and tried to kill himself. He was
    charged with two counts of first degree murder. The trial proceeded before a
    judge alone. The appellant advanced a not criminally responsible on account of
    mental disorder (NCR) defence. The defence argued that the appellant suffered
    from a mental disorder that rendered him incapable of knowing that it was
    wrong, in the circumstances, to kill his two friends.

[2]

The trial judge convicted. The appellant raises four grounds of appeal:

1. Did the
    trial judge misinterpret the phrase knowing that it was wrong in s. 16(1) of
    the
Criminal Code
, R.S.C. 1985, c.
    C-46
?

2. Did the
    trial judges finding that the appellant was not in a psychotic state at the
    time he killed his friends reflect a misapprehension of the evidence or an unreasonable
    finding of fact?

3. Should
    this court recognize the partial defence of diminished responsibility?

4. Should
    this court recognize the partial defence of suicide pact?

II

Facts

[3]

The facts of this tragic case are not in dispute and are fully set out
    in the reasons of the trial judge. Essentially, the appellant, his girlfriend,
    and another friend of theirs decided to commit suicide together so that their
    souls would travel to a different, divine world. The appellant claims to have
    been in contact with Satanistic beings who advised him about how to carry out
    the planned murder-suicide. They developed a plan whereby the appellant would
    ensure the deaths of his two friends, and then kill himself. Not surprisingly,
    expert psychiatric evidence called by both the defence and the Crown figured
    prominently at the trial.

[4]

It was common ground at trial that the appellant suffered from a
    significantly debilitating mental disorder at the time he killed his friends
    and that there was a causal relationship between his mental disorder and the
    killings. The defence experts diagnosed the illness as schizophrenia. The Crown
    experts were more inclined to a diagnosis of schizotypal personality disorder.
    The trial judge observed, correctly, that for the purposes of determining
    whether the appellant suffered from a mental disorder under s. 16, the exact
    diagnosis was not crucial.

[5]

Three of the four experts called agreed that the appellants mental
    disorder did not render him incapable of appreciating the nature and quality of
    his acts at the time of the killing. The defence did not take the position that
    the evidence showed that the appellant was incapable of appreciating the nature
    and quality of his actions.

[6]

All of the experts agreed that the appellant knew when he killed his
    friends that his actions were legally wrong. The experts, however, disagreed on
    whether the appellant knew that his actions were morally wrong, as that concept
    has been judicially interpreted.

[7]

The trial judge provided his understanding of the word wrong, at para.
    120:

Under the second branch of section 16(1), the term wrong
    refers to morally wrong, that is to say, contrary to the ordinary moral
    standards of reasonable men and women. What is morally wrong is not to be
    judged by the personal standards of the person charged but, rather, by his or
    her awareness that society regards the conduct as wrong. In other words, the
    exemption extends only to those accused of crime who, because of a mental
    disorder, are incapable of knowing that society generally considers their
    conduct to be immoral. [Citations omitted.]

[8]

The trial judge went on, at para. 121, to emphasize that the wrongness
    inquiry does not take place at a general or abstract level, but rather is directed
    at the accuseds capacity to understand that his actions, in the specific circumstances,
    would be regarded as wrong according to the moral standards of reasonable
    members of society.

III

grounds of appeal

(1)

Did the trial judge err in his interpretation of knowing that it was
    wrong in s. 16(1)?

[9]

Section 16(1) reads:

No person is criminally responsible for an act committed or an
    omission made while suffering from a mental disorder that rendered the person
    incapable of appreciating the nature and quality of the act or omission
or
    of knowing that it was wrong.
[Emphasis added.]

[10]

The
    appellant submits that the trial judge erred in construing the wrongness
    component of s. 16(1) as limited to a cognitive awareness of how society would
    regard the morality of the appellants actions. The appellant submits that
    wrongness also requires a consideration of volitional incapacity. In other
    words, did the appellant at the time he killed his friends have the capacity
    for rational judgment or choice? The Crown argues that the trial judge
    correctly captured the meaning of wrong in s. 16(1): see
R. v. Dobson
,
    2015 ONSC 2865, 327 C.C.C. (3d) 473, at paras. 120, 160, 161, 170.

[11]

Counsels
    arguments ranged over an extensive body of case law. Both, however, settled on
R.
    v. Oommen
, [1994] 2 S.C.R. 507 as the leading authority on the meaning of
    wrong in s. 16(1). They disagree as to what the case says.

[12]

In
Oommen
, the
    accused suffered from a mental disorder that manifested itself in delusions
    that people, including the victim who was staying with the accused, were
    conspiring to harm him. On the night of the homicide, the accused, in a
    delusional state, believing that his home was surrounded by his enemies and
    that the victim was about to stab him, shot and killed the victim. In fact, the
    victim was lying asleep on the floor when the accused shot her.

[13]

The accused asked a
    neighbour to call the police. When the police arrived, the accused told them:

I shot and killed a girl inside. She thought I was sleeping.
    She came with a knife. I had no other choice, so I shot her, okay.

[14]

The
    trial judge concluded that the NCR defence was unavailable as the accused had
    the capacity to know in general terms that society would regard killing another
    as wrong. At the same time, the trial judge acknowledged that in his delusional
    state, the accused believed that what he did was justified to save himself:
Oommen
,
    at p. 514.

[15]

McLachlin
    J., for a unanimous court, held that the trial judge had erred in focusing on
    the accuseds ability to understand right from wrong on a general level. She
    indicated that the trial judge should have focused on the accuseds capacity to
    know his act was wrong at the time of the killing and in the circumstances of
    the killing:
Oommen
, at pp. 522-23.

[16]

The
ratio
of
Oommen
is relatively narrow. However, in arriving at that
    conclusion, the court examined, in broader terms, the meaning of wrong in s.
    16(1).

[17]

The appellant submits
Oommen
stands for the proposition that the capacity to know
    ones act is wrong requires the capacity to make a rational choice about committing
    the act. If a delusional state precludes the making of a rational choice, the
    appellant maintains that
Oommen
holds that the accused does not have the capacity to know his act is
    wrong.

[18]

In advancing this
    position, the appellant refers to two passages in
Oommen
, at pp. 518 and 520, respectively:

The crux of the inquiry is
    whether the accused lacks the capacity to rationally decide whether the act is
    right or wrong and hence to make a rational choice about whether to do it or
    not.

Thus the question is not whether, assuming the delusions to be
    true, a reasonable person would have seen a threat to life and a need for
    death-threatening force. Rather, the real question is whether the accused
    should be exempted from criminal responsibility because a mental disorder at
    the time of the act deprived him of the capacity for rational perception and
    hence rational choice about the rightness or wrongness of the act.

[19]

The Crown submits that
Oommen
does not suggest assessing the capacity of an
    accused to know that his actions were wrong exclusively by reference to his
    or her delusional perceptions. The Crown submits that it is not enough that the
    accused, in his delusional state, believed his acts were right according to
    his or her own moral code. On the Crowns approach, an accused can be found NCR
    only if that accused lacked the capacity to know that society would regard what
    he did, in the circumstances, as morally wrong. The Crown refers to two passages
    from
Oommen
in support
    of its position, at pp. 520 and 521, respectively:

The issue is whether the accused possessed the capacity present
    in the ordinary person to know that the act in question was wrong having regard
    to the everyday standards of the ordinary person

Finally, it should be noted that we are not here concerned with
    the psychopath or the person who follows a personal and deviant code of right
    and wrong. The accused in the case at bar accepted societys views on right and
    wrong. The suggestion is that, accepting those views, he was unable because of
    his delusion to perceive that his act of killing was wrong in the particular
    circumstances of the case. On the contrary, as the psychiatrists testified, he
    viewed it as right. This is different from the psychopath or person following a
    deviant moral code. Such a person is capable of knowing that his or her acts
    are wrong in the eyes of society, and despite such knowledge, chooses to commit
    them.

[20]

The
    Crown further submits that its interpretation of the meaning ascribed to
    wrong in
Oommen
is consistent with earlier Supreme Court of Canada
    jurisprudence. In
R. v. Chaulk
, [1990] 3 S.C.R. 1303, the seminal case
    on the meaning of wrong in s. 16, Lamer C.J.C., for the majority, said, at p.
    1357:

The accused will not benefit from substituting his own moral
    code for that of society. Instead, he will be protected by s. 16(2) if he is
    incapable of understanding that the act is wrong according to the ordinary
    moral standards of reasonable members of society.

[21]

In
R. v. Ratti
,
    [1991] 1 S.C.R. 68, a case in which the accused, like the accused in the
    present case, suffered from schizophrenia, the Chief Justice explained the
    meaning of wrong, at p. 80, in these terms:

In accordance with our decision in
Chaulk
, the trier
    of fact must be directed to consider whether the appellant was rendered
    incapable, by reason of disease of the mind or natural imbecility, to know
    that his act was morally wrong in the circumstances. It is not sufficient to
    decide that the appellants act was a result of his delusion.
Even if the
    act was motivated by the delusion, the appellant will be convicted if he was
    capable of knowing, in spite of such delusion, that the act in the particular
    circumstances would have been morally condemned by reasonable members of society.
[Emphasis in the original.]

[22]

It may be that different extracts from
Oommen
are open to different interpretations, however, the
    Crowns interpretation of
Oommen
is consistent with the interpretation adopted in an
    unbroken line of authority in this court: e.g. see
R. v. Ross
, 2009 ONCA 149, at paras. 24-27;
R.
    v. Woodward
, 2009 ONCA 911, at para.
    5;
R. v. Guidolin
,
    2011 ONCA 264, at paras. 17-18;
R. v. Szostak
, 2012 ONCA 503, 111 O.R. (3d) 247, at paras. 56-58;
R.
    v. Campione
, 2015 ONCA 67, 321 C.C.C.
    (3d) 63, at para. 30.

[23]

A
    recent description of the wrongfulness inquiry under s. 16(1) from this court
    is found in
Campione
,
at paras. 39-41:

The ultimate issue for the jurors to determine was whether  in
    spite of her delusions and any honest belief in the justifiability of her
    actions  the appellant had the capacity to know that those actions were
    contrary to societys moral standards. The centrepiece of the inquiry is her
    capacity to know and to make that choice; it is not the level of honesty or
    unreasonableness with which she may have held her beliefs. Concentrating on the
    latter unduly complicates the inquiry for the very reason the appellant raises
    in support of her argument; it leads to the application of reasonableness
    considerations to the appellants delusions and subjective belief.

In short, a subjective, but honest belief in the justifiability
    of the acts  however unreasonable that belief may be  is not sufficient,
    alone, to ground an NCR defence, because an individual accuseds personal sense
    of justifiability is not sufficient. The inquiry goes further.
The accused
    persons mental disorder must also render him or her incapable of knowing that
    the acts in question are morally wrong as measured against societal standards,
    and therefore incapable of making the choice necessary to act in accordance
    with those standards.
[Emphasis added.]

[24]

In my view,
Oommen
,
    as interpreted in the judgments of this court, holds that an accused who has
    the capacity to know that society regards his actions as morally wrong and
    proceeds to commit those acts cannot be said to lack the capacity to know right
    from wrong. As a result, he is not NCR, even if he believed that he had no
    choice but to act, or that his acts were justified. However, an accused who,
    through the distorted lens of his mental illness, sees his conduct as
    justified, not only according to his own view, but also according to the norms
    of society, lacks the capacity to know that his act is wrong. That accused has
    an NCR defence. Similarly, an accused who, on account of mental disorder, lacks
    the capacity to assess the wrongness of his conduct against societal norms
    lacks the capacity to know his act is wrong and is entitled to an NCR defence.

[25]

There was evidence from
    the defence experts that the appellant did not know his acts were wrong in the
    sense defined in the preceding paragraphs. Dr. Rootenberg opined:

During the material time, Mr. Dobsons mental state was so
    thought disordered that he was unable to rationally consider whether his
    actions were right or wrong in a way most people would ordinarily be able to do
    so.

[26]

Dr.
    Chaimowitz expressed a similar opinion:

I believe he felt compelled to do what he did based on the
    belief system that was epitomized by his delusional ideas and framed by the Satanic
    system  I believe his psychotic symptoms were sufficient in intensity to
    deprive him of the ability to recognize what he was doing was wrong from a
    moral perspective

[27]

The
    Crown experts offered a contrary opinion, relying in part on the appellants
    statements to them that he knew that society would regard the killing of his
    friends as morally wrong.

[28]

The
    trial judge considered these opinions at length. He also considered the
    appellants conduct leading up to the killings and many statements the
    appellant made to first responders and the police:
Dobson
, at paras.
    136-55.

[29]

As
    I read the trial judges reasons, he was prepared to accept that the appellant,
    applying his distorted sense of right and wrong, may have seen his actions as
    right. However, the appellant reached that conclusion having the capacity to
    know that society would regard the acts as morally wrong. The trial judge said,
    at para. 163:

It is perhaps implicit in Mark Dobsons explanation of why it
    was he unlawfully killed Mary Hepburn and Helen Dorrington and tried to kill
    himself that he viewed his conduct as morally justified, since it would result
    in their souls being together in a better place. But Mark Dobsons own views
    about the moral justification for his conduct, which as even he points out, are
    contrary to the teachings of the Joy of Satan, is a different issue than that framed
    by the second branch of section 16(1)  his capacity to know how others in the
    community would assess the morality of his acts. These were acts that Mark
    Dobson knew were legally wrong. In those circumstances, I simply cannot accept
    that he was incapable of knowing that the same acts in the circumstances would
    be regarded as morally wrong by members of the community. [Citations omitted.]

[30]

Ultimately,
    after a thorough review of all of the evidence, the trial judge concluded that
    the appellant had failed to establish, on the balance of probabilities, that he
    did not have the capacity to know that his actions would be viewed as morally
    wrong in the eyes of reasonable members of the community:
Dobson
, at
    paras. 170-71. His analysis reflects a proper understanding of the meaning of
    wrong as reflected in the post-
Oommen
jurisprudence of this court.
    It also demonstrates a full appreciation of the relevant evidence.

(2)

Did the trial judges finding that the appellant was not in a psychotic
    state when he killed his friends reflect a misapprehension of the evidence or
    an unreasonable finding of fact?

[31]

The
    appellant submits that the trial judges finding that the appellant was not in
    a psychotic state at the time of the homicides is irreconcilable with his
    finding that the appellant suffered from schizophrenia. Counsel submits that
    these conflicting findings can be explained only by a material misapprehension
    of the evidence or an unreasonable assessment of the evidence.

[32]

This
    submission fails for two reasons. First, the expert evidence that the appellant
    suffered from schizophrenia did not compel the conclusion that the appellant
    was in a psychotic state at the time of the killings. Psychotic delusions are a
    feature of schizophrenia, but those diagnosed with the disorder do not
    necessarily experience such symptoms at all times.

[33]

Second,
    the trial judge did not actually make a finding that the appellant was not in a
    psychotic state at the time of the killings. Rather, he declined to make a
    finding that the appellant was in a psychotic state:
Dobson
, at para.
    165. The distinction is important, given that the appellant had the onus of
    proof on the NCR claim. In declining to make the finding, the trial judge
    adverted to concerns about the reliability of information provided to the
    psychiatrists by the appellant. In my view, the trial judge, as the trier of
    fact, was entitled to take that view of the evidence.

(3)

Should the court recognize the partial defence of diminished
    responsibility?

[34]

The
    appellant asked the court to recognize diminished responsibility as a partial
    defence to murder. The proposed defence would reduce what is defined in the
Criminal
    Code
as murder to manslaughter where mental disorder impairs the accuseds
    capacity to appreciate the nature and quality of the act, or know that it was
    wrong. The appellant points to various common law jurisdictions, notably
    England and Wales where a statutorily-created defence of diminished
    responsibility has existed for years:
Homicide Act 1957
(5 & 6
    Eliz. 2, c. 11), s. 2.

[35]

The
    appellant submits that s. 8(3) of the
Criminal Code
gives Canadian
    courts the power to recognize (
i.e.
create) a common law defence of
    diminished responsibility.

[36]

The
    appellant does not raise a constitutional challenge. He does not argue that the
    definition of murder in the
Criminal Code
is unconstitutional, absent
    the partial defence of diminished responsibility. Nor does the appellant
    suggest that any provision in the
Charter
constitutionally commands
    the creation of the diminished responsibility defence. The appellant does argue
    that criminal law principles, particularly the principle of fair labelling
    should cause this court to recognize that those who commit murder while
    suffering from a mental disorder that negatively impacts on their
    responsibility for their actions, are inherently less culpable than persons who
    commit the same act, but do not suffer from a mental illness. The appellant contends
    that a manslaughter verdict, coupled with the broad sentencing discretion
    available for that offence, would properly reflect the different levels of
    culpability.

[37]

This
    issue was not raised at trial. More importantly, in my view, it is an issue
    that can only be properly addressed by Parliament. The
debate
over the need for and the contours of a
    diminished responsibility defence has gone on for over 60 years in most of the
    common law world. Various law reform bodies have made various recommendations
    and various legislatures have had various responses. To date, Parliament has
    chosen not to go down the road of diminished responsibility.

[38]

As
    the academic literature and various law reform commission reports demonstrate,
    there are many difficult policy questions that must be addressed in deciding
    whether to recognize a defence of diminished responsibility and, if so, what
    the defence should be and what dispositions should follow from a finding of
    diminished responsibility. Those questions are complex and contentious. Informed
    decisions require long and careful study with input from various disciplines
    and stakeholders. None of that is available to a court deciding a single case.
    The adversarial process is singularly unsuited to the wise resolution of the
    multi-faceted and difficult policy issues raised by the consideration of
    diminished responsibility as a partial defence to murder.

(4)

Should this court recognize the partial defence of suicide pact?

[39]

This
    issue was also not raised at trial. The appellant again invokes s. 8(3) of the
Criminal
    Code
and urges the court to recognize the common law defence of suicide
    pact. According to the appellants submission, that defence would give the
    survivor of the suicide pact a partial defence to what would otherwise be
    murder. The appellant submits that the survivor should be convicted of
    manslaughter. As with the diminished responsibility defence, he argues that a
    manslaughter verdict would more accurately reflect the culpability of the
    survivor of the suicide pact.

[40]

The
    appellant refers to
R. v. Gagnon
(1993), 84 C.C.C. (3d) 143, 24 C.R.
    (4th) 369 (Que. C.A.). In
Gagnon
, the accused and his girlfriend decided
    to commit suicide. They laid on a bed with the girlfriend on top of the accused.
    The accused fired a single bullet into both bodies. The bullet killed the
    girlfriend and injured the accused.

[41]

The
    court in
Gagnon
accepted a very narrow suicide pact defence. That
    defence was available only when the parties formed a common and irrevocable
    intention to commit suicide together, simultaneously by the same event and the
    same instrumentality, and where the risk of death was identical for both:
Gagnon
,
    at p. 155. The court distinguished a true suicide pact from a murder-suicide
    pact in which one person agreed to first kill the other and then kill himself.
Gagno
n
    would not have extended the suicide pact defence to the murder-suicide
    situation.

[42]

This
    case involves a double murder-suicide. The very narrow defence outlined in
Gagnon
, which led to an outright acquittal on the murder
    charge,
does not assist the appellant. His defence, if any, as with
    most people who kill pursuant to a suicide pact, lay under the NCR provisions
    in s. 16.

[43]

Furthermore,
    it is implicit in this submission that this court recognizes a partial common
    law defence to murder if a person kills another pursuant to a suicide pact. No
    such defence has been recognized by this court. Nor should it be recognized in
    the context of an appeal in which the defence would not be available on the
    facts.

[44]

In
    any event, for the same reasons outlined in reference to the proposed defence
    of diminished responsibility, the question of whether a person who kills
    pursuant to a suicide pact should have a partial defence to murder is probably
    a matter that
is much better addressed by
    Parliament.

IV

conclusion

[45]

I
    would dismiss the appeal.

Released: DD  JUN 28 2018

Doherty J.A.

I agree S.E. Pepall J.A.

I agree I.V.B. Nordheimer 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), (2.1), (2.2), (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 victim 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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Donnelly, 2018 ONCA 575

DATE: 20180622

DOCKET: C61547

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Donnelly

Appellant

Uma Kancharla, for the appellant

John A Neander, for the respondent

Heard and released orally: June 20, 2018

On appeal from the conviction entered on April 17, 2015 by
    Justice McLean of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

Introduction

[1]

The appellant was convicted of the sexual assault of a 17 year old woman
    who had been forced into the sex trade by others.

[2]

He raises three grounds of appeal: (i) the trial judge erred in placing
    the defence of honest but mistaken belief in consent to the jury because it
    lacked an air of reality; (ii) Crown counsel conducted an improper cross-examination
    of him and delivered an inflammatory closing address; and (iii) ineffective
    assistance of trial counsel.

[3]

Much of the evidence regarding the account between the appellant and the
    complainant is undisputed. She met the appellant at his car and they drove to
    his apartment. The complainant told the appellant that she was 19 years old and
    that she had some experience in the sex trade. In fact, she was 17 years old
    and the appellant was her first customer.

[4]

The complainant testified that she went along with oral and protected
    vaginal sex. According to the complainant, during the sexual intercourse the
    appellant pulled a strap-on out of his drawer and asked if they could use it.
    The complainant said that she told the appellant no but he proceeded to
    penetrate her with it. Further she testified that the appellant removed his
    condom and continued vaginal intercourse, despite the fact that she had told
    him to keep the condom on.

[5]

In his testimony, the appellant admitted to the oral and protected
    vaginal sex, but denied that they had sex without a condom or that he used a
    strap-on. He also denied ejaculating into the complainants vagina but
    testified that he ejaculated onto her face with her permission.

[6]

The appellant submits that there was no air of reality to the defence of
    honest but mistaken belief in consent. He says it was entirely inconsistent
    with his testimony that he did not have sex without a condom or use a strap-on
    with the complainant. We agree with the appellant that the instruction should
    not have been given as we see no air of reality to the defence.

[7]

Even if there was some basis for the instruction, the manner in which it
    was put to the jury obscured the appellants defence and undermined his
    position that the acts never occurred. This error was compounded by the trial
    judges misstatement of the appellants position, that the offences did not
    occur, in giving the charge and in answering a question from the jury. He told
    the jury that the appellants position was that he honestly believed that the
    complainant had consented to the acts complained of; he testified that the acts
    complained of did not take place. In our view, the charge, as given, would only
    serve to confuse the jury. In the circumstances a new trial is required. Given
    this conclusion it is unnecessary to consider the other grounds of appeal.

[8]

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

C.W.
    Hourigan J.A.

G.
    Pardu J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan, 2018 ONCA 574

DATE: 20180625

DOCKET: C64830

Lauwers, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Duncan

Appellant

Anthony Duncan, acting in person

Nader R. Hasan, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: June 5, 2018

On appeal from the sentence imposed by Justice Jane E.
    Kelly of the Superior Court of Justice on December 5, 2017.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to a number of offences under the
Criminal
    Code
, R.S.C. 1985, c. C-46: making false documents, contrary to s. 366(1);
    three counts of possessing identity documents to commit an indictable offence,
    contrary to s. 402.2(1); two counts of using, trafficking, or possessing forged
    documents, contrary to s. 368(1); four counts of possession of property
    obtained by crime, contrary to s. 354(1); and trafficking in another persons
    identity information, contrary to s. 402.2(2).

[2]

At the sentencing hearing, Crown counsel sought a sentence of two years
    less-one-day in custody and two years of probation. The appellants counsel
    sought a conditional sentence of 15 months to allow the appellant to serve his
    sentence in the community.

[3]

The sentencing judge imposed a global term of incarceration of 18
    months, less time served at 1.5 days pre-sentence credit for a total of 5
    months credit, leaving an effective remaining sentence of 13 months.

[4]

Duty counsel submits that the sentencing judge made an error in failing
    to consider adverse immigration consequences and that, in light of the
    immigration consequences, a conditional sentence would be an appropriate and
    fit sentence.

[5]

The sentencing judge did not independently opine on the immigration
    issue in this specific case. However, she appears to have turned her mind to
    the issue. Before reviewing the purpose and principles of sentencing, she noted:
    Regardless of  his or her status in Canada, the court is required to consider
    s. 718 of the
Criminal Code
. Moreover, possible immigration issues
    were identified during sentencing submissions. Defence counsel noted that the
    appellant was a permanent resident and had an immigration lawyer who was
    preparing an opinion.

[6]

The situation for the appellant, as a British citizen, is that he is now
    exposed to deportation to the United Kingdom at the age of about 57 (although
    his actual birthdate is unclear), where he has not lived since he was a young
    boy.

[7]

The explanation given by Trotter J.A. in
R. v. McKenzie
, 2017
    ONCA 128, 346 C.C.C. (3d) 477, at para. 24, applies to the appellants
    situation:

The immigration consequences of the appellant's offending are
    extremely serious. Under s. 36(1)(
a
) of the
IRPA
[
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27], a permanent resident is
    "inadmissible" on grounds of "serious criminality." When
R.
    v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739 was decided, s. 64(2) provided
    that a removal order based on inadmissibility due to "serious
    criminality" could not be appealed to the Immigration Appeal Division
    ("IAD") "with respect to a crime that was punished in Canada by
    a term of imprisonment of at least two years." Upon appeal, the IAD can
    stay a removal order if it is satisfied "that sufficient humanitarian and
    compassionate considerations warrant special relief in all of the circumstances
    of the case":
IRPA
, s. 68(1). This provision has since been
    amended by s. 24 of the
Faster Removal of Foreign Criminals Act
, S.C.
    2013, c. 16, which ousts the right to appeal "with respect to a crime that
    was punished in Canada by a term of imprisonment of at least six months or that
    is described in paragraph 36(1)(b) or (c)."

[8]

Duty counsel submits that this court should now substitute a conditional
    sentence in order to preserve the appellants appeal right to the Immigration
    Appeal Division if he is faced with a deportation order. Counsel points out
    that the appellant has almost served out his entire sentence, so the punitive
    element of the original sentence would not be diminished.

[9]

The issue before this court is, as in
Pham
, whether a sentence
    otherwise falling within the range of fit sentences can be varied by this court
    to take potential deportation into account. Trotter J. noted:

Wagner J.
    [in
Pham
] warned (at para. 16) that the consideration of immigration
    consequences must not lead to a separate sentencing scheme with a
de facto
if not a
de jure
special range of sentencing options where deportation
    is a risk:
McKenzie
, at para. 34.

[10]

The
    question for this court: was the sentence fit in light of the specific immigration
    consequences now made known to this court?

[11]

In
    her sentencing decision, the sentencing judge reviewed the elements of s. 718
    of the
Criminal Code
, and she reviewed both aggravating and mitigating
    circumstances, including his community involvement and support. She referred to
    the appellants significant criminal record, noting that he had 24 convictions
    for crimes of dishonesty: including public mischief, cheating at play, fraud,
    uttering forged documents, attempting to obstruct a peace officer, personation
    with intent, among others. The sentencing judge referred to the appellants
    previous ten terms of community supervision with four fail to comply [with]
    recognizance, one fail to comply [with] probation, and [a] fail to attend court.
    She also noted that his reporting habits were sporadic, as he would often
    either fail to report or report late. In the final analysis, the sentencing
    judge noted: Most of all,  [the appellant] has an extensive criminal record,
    and there is no insight offered for his behaviour. She specifically rejected a
    conditional sentence as not appropriate.

[12]

The
    sentence was heavier than the sentences imposed on his associates. One, who had
    no previous convictions, was given a conditional sentence. The other, who had a
    prior conviction, received a 12-month sentence. We do not find the appellants sentence
    to be comparatively disproportionate in light of his record.

[13]

Despite
    duty counsels able submissions, we are unable to find that the sentence
    imposed by the sentencing judge was unfit in light of the appellants criminal
    record. A conditional sentence would not have been appropriate in light of the
    appellants multiple previous failures to comply with the terms of community
    supervision orders.  There is no principled basis on which we could reduce his
    sentence to a conditional sentence, despite the immigration consequences. As
    noted in
Pham

at para. 15, the flexibility of our sentencing
    process should not be misused by imposing inappropriate and artificial
    sentences in order to avoid collateral consequences which may flow from a
    statutory scheme.

[14]

The
    appeal is dismissed.

P.
    Lauwers J.A.

G.
    Pardu J.A.

B.W.
    Miller J.A.


MISE EN GARDE

Le président du comité qui
    entend cet appel ordonne que lordonnance suivante soit jointe au dossier :

Lordonnance limitant la
    publication dans cette instance, en vertu des paragraphes 486.4 (1), (2),
    (2.1), (2.2), (3) ou (4) ou en vertu des paragraphes 486.6 (1) ou (2) du
Code
    criminel
, est maintenue. Ces dispositions du
Code criminel
prévoient
    ce qui suit :

486.4(1) Sous réserve
    du paragraphe (2), le juge ou le juge de paix qui préside peut rendre une
    ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit
    tout renseignement qui permettrait détablir lidentité de la victime ou dun témoin
    dans les procédures relatives à :

a) lune des
    infractions suivantes;

(i) une infraction
    prévue aux articles 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171,
    171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 ou 347,

(ii)
une infraction prévue par la présente loi, dans toute version
    antérieure à la date dentrée en vigueur du présent sous-alinéa, dans le cas où
    lacte reproché constituerait une infraction visée au sous-alinéa (i) sil
    était commis à cette date ou par la suite
,

(iii) [Abrogé, 2014,
    ch. 25, art. 22(2).]

b)
deux infractions ou plus dans le cadre de la même procédure, dont lune
    est une infraction visée à lalinéa
a
).

(2)
Dans les procédures relatives à des infractions visées aux alinéas (1)
a
) ou
b
), le juge ou le juge de paix qui préside est tenu :

a
) daviser dès que possible les témoins âgés de moins de dix-huit
    ans et la victime de leur droit de demander lordonnance;

b
) de rendre lordonnance, si le poursuivant, la victime ou lun de
    ces témoins lui en fait la demande.

(2.1) Sous réserve du
    paragraphe (2.2), le juge ou le juge de paix qui préside peut rendre une
    ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit
    tout renseignement qui permettrait détablir lidentité de la victime âgée de
    moins de dix-huit ans dans les procédures relatives à toute infraction autre
    que celles visées au paragraphe (1).

(2.2) Dans les
    procédures relatives à toute infraction autre que celles visées au paragraphe
    (1), le juge ou le juge de paix qui préside est tenu, si la victime est âgée de
    moins de dix-huit ans :

a
) daviser dans les meilleurs délais la victime de son droit de
    demander lordonnance;

b
) de rendre lordonnance, si le poursuivant ou la victime lui en
    fait la demande.

(3) Dans les
    procédures relatives à une infraction visée à larticle 163.1, le juge ou le
    juge de paix rend une ordonnance interdisant de publier ou de diffuser de
    quelque façon que ce soit tout renseignement qui permettrait détablir
    lidentité dun témoin âgé de moins de dix-huit ans ou dune personne faisant
    lobjet dune représentation, dun écrit ou dun enregistrement qui constitue
    de la pornographie juvénile au sens de cet article.

(4) Les ordonnances
    rendues en vertu du présent article ne sappliquent pas à la communication de
    renseignements dans le cours de ladministration de la justice si la
    communication ne vise pas à renseigner la collectivité.

486.6(1)
Quiconque transgresse une ordonnance rendue conformément aux
    paragraphes 486.4(1), (2) ou (3) ou 486.5(1) ou (2) est coupable dune
    infraction punissable sur déclaration de culpabilité par procédure sommaire.

(2) Il est entendu
    que les ordonnances mentionnées au paragraphe (1) visent également
    linterdiction, dans les procédures pour transgression de ces ordonnances, de
    diffuser ou de publier de quelque façon que ce soit tout renseignement qui
    permettrait détablir lidentité de la victime, du témoin ou de la personne
    associée au système judiciaire que lordonnance vise à protéger.
2005, ch. 32, art. 15.

COUR DAPPEL DE LONTARIO

RÉFÉRENCE: R. c. F.R., 2018 ONCA 568

DATE: 20180621

DOSSIER: C59876

La juge en chef adjointe Hoy,
    les juges Rouleau et Benotto

ENTRE

Sa Majesté la Reine

Intimée

et

F.R.

Appelant

Christian Deslauriers, pour lappelant

Davin M. Garg, pour lintimée

Date de laudience: le 14 juin
    2018

Décision rendue séance tenante.

En appel de la condamnation prononcée le
    2 novembre 2012 et de la peine imposée le 27 novembre 2014 par le juge Robert
    N. Beaudoin de la Cour supérieure de justice, siégeant sans jury.

MOTIFS DE LA COUR

[1]

Lappelant maintient que le verdict de
    culpabilité est déraisonnable et ne pouvait pas être raisonnablement rendu sur
    la preuve présentée au procès.

[2]

Il prétend que la séance didentification photographique
    où la plaignante la identifié était entachée derreurs et que la preuve dADN présentée
    au procès était faible. Selon lappelant, le juge na pas compris les limites
    de cette preuve, ce qui constituerait une erreur.

[3]

Lappelant maintient aussi quil était
    déraisonnable de la part du juge de conclure quil était impossible que sa
    fuite en voiture pour échapper à trois corps policiers différents et dune
    durée denviron deux heures était due à un problème avec la plaque
    dimmatriculation de la voiture ou à un manquement au code de la route.

[4]

À notre avis, lappel doit être rejeté.

[5]

Le juge a noté et a tenu compte des problèmes
    dans la séance didentification photographique. Ses motifs démontrent aussi
    quil était conscient des limites concernant la preuve dADN. Au para. 60 de
    ses motifs, il a correctement expliqué que cette preuve ne pouvait exclure lappelant,
    tout autre membre de la ligne paternelle de sa famille, et moins dun pourcent de
    la population.

[6]

En ce qui a trait au commentaire du juge
    concernant la poursuite, ce commentaire doit être lu dans son contexte. Le mot
    « impossible » était peut-être mal choisi, mais cela ne constitue pas
    une erreur manifeste et dominante.

[7]

Considérant les motifs dans leur ensemble, nous
    sommes davis que le juge na commis aucune erreur. Ses motifs démontrent quil
    a bien compris la preuve présentée et la correctement soupesée. Sa conclusion
    quil ny avait aucune thèse plausible autre que la culpabilité de lappelant
    était raisonnable. Cette conclusion était appuyée par la preuve, dont faisaient
    partie lidentification de lappelant par la plaignante, la preuve dADN, et la
    preuve dun intérêt sexuel envers la plaignante chez lappelant. De plus, la
    blessure au pouce de lappelant sexplique par le témoignage de la plaignante selon
    lequel elle aurait mordu le pouce de son assaillant.

[8]

Lappelant nous a informés quil abandonnait
    lappel de la peine.

[9]

Pour ces motifs, lappel est rejeté.

« Alexandra
    Hoy j.c.a.o. »

« Paul
    Rouleau j.c.a. »

« M.L.Benotto
    j.c.a. »