COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Andrade, 2015 ONCA 499

DATE: 20150706

DOCKET: C59097

Juriansz, Rouleau and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isidro Andrade

Appellant

Joseph Di Luca, for the appellant

Frank Au, for the respondent

Heard: May 8, 2015

On appeal from the conviction entered on January 30, 2014
    by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting
    without a jury.

Hourigan J.A.:

INTRODUCTION

[1]

The appellant was convicted of possession of an imitation weapon for a
    purpose dangerous to the public peace, contrary to s. 88(1) of the
Criminal
    Code
, and use of an imitation firearm while committing an indictable
    offence, contrary to s. 85(2)(a) of the
Code
.

[2]

The primary issue on appeal is the proper interpretation and application
    of s. 85(2) of the
Code
. Specifically, the issue is whether a
    conviction for possession of a weapon for a purpose dangerous to the public
    peace, commonly referred to as weapons dangerous, can constitute the
    predicate indictable offence necessary for a conviction under s. 85(2). The
    trial judge concluded that it could. For the reasons that follow, I have
    concluded that it cannot and that the appellants conviction under s. 85(2)
    must be set aside.

[3]

The appellant also argued that the trial judge subjected his evidence to
    a higher degree of scrutiny than to the evidence of the Crown witness. As
    discussed below, I would not give effect to this ground of appeal.
    Consequently, I would dismiss the conviction appeal for the weapons dangerous
    count.

FACTS

[4]

In the evening of June 17, 2011, the appellant was at a park in Toronto
    with his four-year-old daughter. The appellant claimed that a member of a group
    of young people in the park threw a glass bottle, which landed near his daughter.
    According to the appellant, when he approached the group one young man sliced the
    appellants arm with a small pocketknife while another stole a family heirloom
    gold chain from his neck. The appellant then left the park with his daughter
    and returned home, where he treated his injury but did not call police.

[5]

Later that evening, the appellant and a friend drove to the convenience
    store across the street from the appellants apartment to buy cigarettes. When they
    arrived, there were four young people in the parking lot near the Pizza Pizza located
    next to the convenience store. The appellant claimed that he recognized the two
    young men in the group as the same individuals who had robbed him earlier that
    evening at the park.

[6]

The appellant testified that he told the group he wanted his chain back.
    The appellant and the two young men walked towards each other. Footage from the
    Pizza Pizza surveillance camera showed the three men exchanging words and
    bumping chests. The appellants friend soon intervened and pushed the
    appellant backwards towards the convenience store. The verbal confrontation continued
    for about another minute, until the appellant and his friend entered the
    convenience store. The appellant claimed that throughout the confrontation he
    repeatedly requested that the young men return his necklace. The surveillance
    video showed that at one point during the conversation the appellant pointed in
    the direction of his apartment building across the street.

[7]

After the appellant emerged from the convenience store, he again spoke
    to one of the young men, who was identified only by the name Rudy. The
    appellant testified that Rudy told him he would call his brother to retrieve the
    necklace and would return it to the appellant if he met him back at the park in
    a few minutes.

[8]

Rudy did not testify at trial. The only member of the group of young
    people from the Pizza Pizza parking lot who cooperated with police and
    testified at trial was Jessica Putini. Ms. Putini denied that Rudy told the
    appellant he would give him his necklace if he returned to the park. Instead,
    she testified that the appellant told Rudy to meet him at his apartment
    building across the street, where the appellant would have something for him.
    The trial judge rejected the appellants account of this conversation and
    accepted Ms. Putinis evidence.

[9]

The appellant and his friend then left the parking lot in the friends
    vehicle. After they left, three more young men soon joined the four young
    people. About two and a half minutes after the appellant left the parking lot, he
    returned with a different friend. The pair walked directly towards the group of
    young people standing near the Pizza Pizza. The Pizza Pizza surveillance
    footage showed that soon after the appellants return something caused the
    three young men who had joined the initial group to flee in various directions.

[10]

While
    there was no evidence to suggest precisely what caused the men to flee, the
    appellant and his friend entered the screen of the Pizza Pizza surveillance
    footage seconds after this occurred. The appellant speculated that the young
    men scattered in response to the appellant screaming that he wanted his
    necklace back. While the trial judge found it difficult to accept the
    appellants explanation, he concluded that it was not necessary to draw any
    factual conclusions about what caused the young men to flee.

[11]

According
    to Ms. Putini, the appellant then continued walking towards the remaining young
    people. As he did so, he removed what Ms. Putini described as a silver handgun
    from the waistband of his pants. He held the handgun, which Ms. Putini believed
    was a real firearm, in his right hand and threatened to kill Rudy. Ms. Putini
    fled inside the Pizza Pizza and called 911.

[12]

The
    appellant continued to move towards Rudy. The appellant claimed that during
    this interaction Rudy refused to return the stolen necklace and threatened to
    harm the appellants family. The appellant then swung his right arm in a
    punching motion and struck Rudy in the side of the head with the silver object.
    The surveillance video showed that the appellant then left the scene in the
    direction of his apartment.

DECISION BELOW

[13]

The
    appellant was initially charged with three counts: possession of an imitation
    weapon for a purpose dangerous to the public peace, use of an imitation weapon
    while committing an indictable offence, and threatening death. He was not
    indicted on the threating death charge. The indictment was amended mid-trial in
    order to clarify that the predicate indictable offence under s. 85(2) was the
    weapons dangerous charge and not the threatening death charge.

[14]

The
    appellant

did not dispute that he was in possession of an imitation
    firearm on the night in question or that he struck Rudy as shown in the
    surveillance footage. Consequently, the key issue on the s. 88(1) charge was
    whether he possessed the imitation handgun for a purpose dangerous to the
    public peace.

[15]

The
    trial judge noted that s. 88(1) is a specific intent offence requiring proof
    that the appellants subjective purpose in possessing the imitation handgun was
    objectively dangerous to the public peace.

[16]

The
    appellant claimed that the imitation firearm was a cigarette lighter, which he
    carried with him on the day in question for the sole purpose of lighting his
    cigarettes. He testified that he did not plan or intend to use the imitation
    firearm. He claimed he reacted spontaneously when Rudy refused to return the
    stolen necklace and threatened the appellants family.

[17]

The
    trial judge accepted Ms. Putinis testimony that Rudy did not threaten the
    appellant or his family. He also rejected the appellants claim that he was
    carrying the imitation firearm to use as a cigarette lighter. Instead, the
    trial judge found that when the appellant returned to his apartment after the
    initial confrontation in the Pizza Pizza parking lot, he armed himself with an
    object that bore enough resemblance to a real firearm to scare all of the young
    people who saw it. The appellant did not have the imitation firearm with him throughout
    the entire day as he claimed. If he had, he presumably would have drawn the
    imitation firearm during the robbery at the park or during the initial
    confrontation with Rudy and his friends in the parking lot.

[18]

The
    trial judge was satisfied that after the first confrontation in the parking lot
    the appellant decided to go to his apartment, retrieve the imitation firearm
    and return to the parking lot to confront the group of young people. In taking
    possession of the imitation firearm the appellant intended to use it as
    necessary during this second confrontation. The appellant was not acting in
    self-defence when he approached the group of young people with the imitation weapon
    and struck Rudy. He was simply angry, and had decided to use violence against
    the person who robbed him earlier that evening.

[19]

The
    trial judge was satisfied beyond a reasonable doubt that the appellant
    subjectively intended to take possession of the imitation firearm for a purpose
    that was objectively dangerous to the public peace. The appellant had formed
    this subjective purpose while he was in his apartment. He then returned to the
    parking lot and used the imitation weapon to intimidate the group of young
    people and strike Rudy.

[20]

The
    second issue was whether a conviction for possession of a weapon for a purpose
    dangerous to the public peace can constitute the predicate offence necessary
    for a conviction under s. 85(2) of the
Code
. Section 85(2)(a) provides
    that it is an offence to use an imitation firearm while committing an
    indictable offence. Pursuant to s. 85(4), the sentence for a conviction under
    s. 85 is to be served consecutively to the sentence for the predicate
    indictable offence.

[21]

The
    trial judge rejected the appellants argument that a conviction under s. 88(1)
    could not give rise to a conviction under s. 85(2)(a). The trial judge noted
    that it is not necessary that an accused
use

a weapon in order
    to be convicted of possession for a purpose dangerous to the public peace; mere
    possession with the requisite intention is sufficient. This makes the weapons
    dangerous offence similar to other indictable offences, such as robbery, theft
    or sexual assault, which can be committed where the accused possessed a weapon
    but did not use it. A conviction under s. 85(2)(a) will only result where the
    accused not only possesses a weapon, but also
uses
it.

[22]

The
    trial judge held that the appellants attempt to rely on the British Columbia
    Court of Appeals decision in
R. v. Chang
(1989), 50 C.C.C. (3d) 413
    (B.C.C.A.), was based on an erroneous understanding of that case. The
    majority of the court in
Chang

quashed the appellants
    conviction for use of a firearm while committing the indictable offence of
    possession of a firearm for a purpose dangerous to the public peace. However, the
    trial judge distinguished
Chang

on the ground that there was no
    evidence that the accused in that case had used the firearm. Instead, Mr.
    Chang was acquitted on the various charges involving use of a firearm. Since
    use is an essential element of the offence set out in s. 85(2)(a), there was
    no basis for a conviction under this provision in
Chang
.

[23]

In
    this case, however, the trial judge found that the appellants actions went
    beyond mere possession of the imitation firearm. The appellant used the
    imitation firearm by pulling it from his pants, striking Rudy, and intimidating
    the other young people in the parking lot. This violent use of the imitation
    firearm constituted the something more the B.C. Court of Appeal found is necessary
    to prove the offence under s. 85(2)(a):
Chang
, at p. 426.

[24]

Since
    the appellants use of the imitation firearm occurred while he was committing
    the indictable offence of possessing a weapon for a purpose dangerous to the
    public peace, the trial judge convicted him under s. 88(1).

POSTIONS OF THE PARTIES

[25]

The

appellant
makes two arguments on appeal. First, he
submits
that

the

offence
of

weapons
dangerous
cannot
be

the underlying offence grounding a conviction for use of an
    imitation firearm in the commission of an indictable
offence under s. 85(2)
. According to the appellant, the use of
the
imitation

weapon

must
    facilitate the

commission

of

the

predicate indictable

offence in order to give rise to a conviction under this section.
    On a charge

of

possessing

an

imitation

weapon

for a

dangerous

purpose, the offence is made out by the
    mere possession of the weapon with the requisite intent. Therefore, any use of
    the imitation weapon does not facilitate the commission of the offence.

Second, the appellant argues that the
    trial judge erred by subjecting his evidence and the evidence of Ms. Putini to
    different levels of scrutiny.

[26]

The Crown submits that

the

appellant

was

properly

convicted

under

s. 85(2)

because

he

committed an

indictable

offence

(i.e
.
weapons

dangerous),

and

he

used

an

imitation firearm

while

doing so
. Use is
an

essential
element

of
the

s.

85 offence,

but

it is not
    necessary that

the

predicate

indictable

offence

have

a

use

element.
    Further, the Crown argues that the trial

judge

did

not

apply

different

standards

in

assessing

the

evidence

of the

appellant

and

Ms. Putini.

He

scrutinized

their evidence

equally

using

common sense,

and

drew

reasonable

inferences

based on

the
evidence
    from the
surveillance

camera
s
.

ISSUES

[27]

There
    are two issues on the appeal:

(i) Did the trial judge err
    in his interpretation and application of s. 85(2)?

(ii) Did the trial judge
    subject the evidence of the appellant and Ms. Putini to different levels of
    scrutiny?

ANALYSIS

(i)
Interpretation and Application
    of s. 85(2)

[28]

Section
    85(1) of the
Code
provides:

1) Every person commits an offence who uses a firearm,
    whether or not the person causes or means to cause bodily harm to any person as
    a result of using the firearm,

(a)     while committing an indictable offence, other
    than an offence under section 220 (criminal negligence causing death), 236
    (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent),
    244.2 (discharging firearm  recklessness), 272 (sexual assault with a weapon)
    or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section
    279.1 (hostage taking), 344 (robbery) or 346 (extortion).

[29]

The
    offence of using a real or imitation firearm during the commission of an
    indictable offence requires a distinct conviction for the specified indictable
    offence:
R. v. Pringle
, [1989] 1 S.C.R. 1645, at p. 1654. For example,
    in the present case it is not sufficient that the evidence suggests the
    appellant could have potentially been convicted of assault or threatening death.
    There was no conviction on those potential charges, and, accordingly, the evidence
    that would support these charges is irrelevant to the s. 85 analysis.

[30]

In
    my view, the crux of the issue between the parties is the meaning of the word
    uses in s. 85. Courts determine on a case-by-case basis whether the conduct
    alleged amounts to use of a firearm. However, it is well established in the
    case law that mere possession of a firearm is not sufficient to support a
    conviction under s. 85(2). Carrying a concealed firearm while committing an
    indictable offence does not constitute a use of a firearm:
R. v. Steele
,
    2007 SCC 36, [2007] 3 S.C.R. 3, at paras. 25-28.

[31]

In
    this case, the respondent submits the constituent elements of the offence are
    established beyond a reasonable doubt because the appellant was convicted of an
    indictable offence (i.e. weapons dangerous) and used an imitation firearm while
    committing that indictable offence (i.e. striking Rudy and intimidating other
    people at the scene). According to the Crown, there is no requirement on the
    wording of s. 85(2) that the predicate offence includes use as an essential
    element or that the use of the firearm facilitate the predicate offence.

[32]

I
    accept the submission of the Crown that the appellant was engaged in more than
    mere passive possession of the imitation firearm. I also accept that the appellant
    used the imitation firearm while he was committing an indictable offence for
    which he was subsequently convicted.

[33]

Where
    I part company with the Crowns position is on the issue of whether the use of
    the weapon must facilitate the predicate offence. While it is accurate to say
    that the wording of the provision does not explicitly require facilitation, the
    Supreme Court has held that it does. Justice Fish explained the courts
    interpretation of uses in
Steele
, at para. 32:

In the absence of a statutory definition, I would therefore
    hold that an offender uses a firearm, within the meaning of s. 85(1), where,
    to facilitate the commission of an offence or for purposes of escape, the
    offender reveals by words or conduct the
actual

presence

or
immediate availability

of a firearm. The weapon must
    then be in the physical possession of the offender or readily at hand.

[34]

This
    definition is consistent with the Supreme Courts reasoning in
Pringle
.
The use of the firearm must be connected to the commission of an indictable
    offence for which a conviction has been entered. If it were otherwise, an
    accused could be convicted under s. 85 for conduct that is merely coincidental
    to the commission of the indictable offence. This opens the door for prohibited
    convictions under s. 85 based on uncharged conduct or charges that do not
    result in conviction.

[35]

The
    result in
Chang
is also consistent with this definition. In that case
    the accused was charged with attempted murder, assault, pointing a weapon,
    weapons dangerous, and using a firearm in the commission of an indictable
    offence. He was convicted of only the final two offences. Contrary to what the
    trial judge in the present case concluded in his analysis of
Chang
,
    there was evidence before the court that Mr. Chang used the weapon. Specifically,
    Mr. Chang had brandished his handgun. However, given the acquittals
    entered on the assault and pointing of a firearm counts, the B.C. Court of
    Appeal correctly concluded that the use of the weapon did not facilitate the
    commission of an indictable offence for which a conviction had been entered.
    Mr. Changs action in brandishing the firearm could not have facilitated the
    offence of possession for a purpose dangerous to the public peace. Consequently,
    there could be no conviction on the count of using a firearm in the commission
    of an indictable offence:
Chang
, at p. 427.

[36]

Given
    the interpretation of uses in
Steele
, the question is whether the
    use of the firearm in this case facilitated the commission of the offence of
    weapons dangerous. To secure a conviction for weapons dangerous, the Crown must
    establish that the accused possessed a weapon and that the purpose of that
    possession was one dangerous to the public peace:
R. v. Kerr
, 2004 SCC
    44, [2004] 2 S.C.R. 371, at para. 23. Therefore, the
actus reus

of
    the offence is made out on establishing beyond a reasonable doubt that the
    accused possessed the weapon. Of course the Crown must also establish that the
    accused had the requisite intention, as discussed above.

[37]

I
    conclude that the trial judge erred in law in finding that the impugned conduct
    of the appellant (i.e. the use of the imitation weapon to beat Rudy and to
    intimidate others) constituted a use under s. 85. This use did not facilitate
    the commission of the predicate indictable offence, which was complete when the
    appellant took possession of the imitation weapon with the requisite intent. The
    trial judge found that this occurred when the appellant was still in his
    apartment, before he ever revealed the imitation firearm to the group of young
    people. Accordingly, I would set aside the conviction under s. 85(2).

(ii)     Uneven Scrutiny of the Evidence

[38]

The
    appellant also appeals his conviction under s. 88(1) on the ground that the
    trial judge glossed over important aspects of Ms. Putinis testimony that
    warranted scrutiny while subjecting his evidence to close and critical
    scrutiny. For the reasons that follow, I do not accept this argument.

[39]

The
    appellant acknowledges that it is difficult to succeed on an uneven scrutiny
    argument. As noted by Doherty J. in

R. v. Howe
(2005), 192
    C.C.C. (3d) 480 (Ont. C.A.), at para. 59:

This argument or some variation on it is
    common on appeals from conviction in judge alone trials where the evidence pits
    the word of the complainant against the denial of the accused and the result
    turns on the trial judges credibility assessments. This is a difficult
    argument to make successfully. It is not enough to show that a different trial
    judge could have reached a different credibility assessment, or that the trial
    judge failed to say something that he could have said in assessing the
    respective credibility of the complainant and the accused, or that he failed to
    expressly set out legal principles relevant to that credibility assessment. To
succeed
    in this kind of argument, the appellant must point to something in the reasons
    of the trial judge or perhaps elsewhere in the record that make it clear that
    the trial judge applied different standard in assessing the evidence of the
    appellant and the complainant.

[40]

The
    appellant submits that since the trial judge accepted his evidence regarding
    the confrontation in the park, Ms. Putinis must have lied when she testified
    that Rudy and the other young men in the park had not robbed the appellant. However,
    it is not clear on the evidence whether Ms. Putini was in the park at the time
    of the incident. The appellant testified that the incident took place at
    approximately 6 or 7 p.m., while Ms. Putini testified that she was at the park
    between 9 and 11 p.m. The appellant also testified that he did not know if Ms. Putini
    had been in the park at the time of the robbery. It does not follow, therefore,
    that it was implicit in the trial judges findings that Ms. Putini lied about
    the park incident. It is possible that the robbery occurred before Ms. Putini
    joined her friends in the park.

[41]

With
    regard to the appellants testimony, there were ample grounds for the trial
    judge to reject critical aspects of his evidence as incredible. For example, I
    see no error in the trial judges rejection of the appellants testimony that Rudy
    agreed to return the necklace to the appellant in the park across the street. It
    was clear that none of the parties made any effort to return to the park. It
    was open to the trial judge to reject this and other portions of the appellants
    testimony. His decision to do so was not the product of uneven scrutiny of the
    evidence.

DISPOSITION

[42]

For
    the reasons above, I would set aside the conviction under s. 85(2) of the
Code
on the count of use of an imitation weapon while committing an indictable
    offence and would otherwise dismiss the appeal.

Released: July 6, 2015 RGJ

C.W.
    Hourigan J.A.

I
    agree R.G. Juriansz J.A.

I
    agree Paul Rouleau 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R.
    v.
Adu
, 2015 ONCA 525

DATE: 20150710

DOCKET: C57585

Weiler
, Tulloch and van
Rensburg
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis
Adu

Appellant

Najma

Jamaldin
and Paul
Genua
, for the appellant

Amanda
Rubaszek
, for the
    respondent

Heard: June 4, 2015

On appeal from the conviction entered on April 5, 2013 by
    Justice Janet Wilson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for sexual assault. He submits that
    the complainant was so lacking in credibility that the verdict was unreasonable
    and cannot stand. He further submits that the trial judge misapprehended the
    evidence and that she did not submit the complainants testimony to the same
    level of scrutiny as that of the appellant.

[2]

We disagree. The inconsistencies and frailties in the complainants
    evidence on which the appellant relies were addressed in the trial judges
    reasons which ran to 398 paragraphs. The reasons make it clear that the trial judge
    was alive to the inconsistencies and problems with the complainants evidence
    including her criminal record which included crimes of dishonesty, her history
    of drug abuse, her evidence as to how she got to the appellants apartment
    (which the trial judge ultimately rejected), her motive to lie or fabricate,
    and the various phone calls that were made from the complainants cell phone.

[3]

Although the appellants counsel relied on the decision of this court in
R. v.
Rhayel
,
[2015] O.J. No. 2675
,
in support of her argument that the trial judge applied different levels of
    scrutiny to the evidence of the appellant and the complainant, in this case,
    unlike in
Rhayel
,
the trial judge
    meaningfully addressed the difficulties in the complainants evidence and
    provided reasons why on the whole of the evidence she was satisfied that the
    appellant was guilty beyond a reasonable doubt.

[4]

This case turned on credibility. There was no issue that the appellant
    and the complainant had had sex. The appellants DNA was found in the
    complainants vagina. The defence position was that the complainant, a complete
    stranger to Mr.
Adu
, came to his apartment with
    another man, that she came on to him, was attracted to him, and that, after
    smoking cocaine, she was capable of consenting and did consent to having sex
    with him or that he had an honest belief in her consent.

[5]

The complainants evidence was that her first memory in the apartment
    was that she awoke or came to and realized that she was naked, lying face down
    on a bed and being penetrated vaginally from behind. She made it clear that she
    did not consent to this activity. The man had his hand on the small of her back
    applying pressure. She told him she did not want to do this and he told her
    to calm down that it would be worse for her if he was uncomfortable and that
    she should relax.

[6]

Having regard to the frailties in the complainants evidence, the trial
    judge looked for confirmation of the complainants account and found it in
    other parts of the evidence including, that Mr.
Adu
was a total stranger over 20 years older than the complainant; the complainant
    reported the sexual assault to the Shoppers Drug Mart security guard and the
    police within minutes of leaving the appellants apartment and her highly
    emotional state at this time; when examined by the sexual assault nurse at the
    hospital the complainant had injuries to her genitals consistent with a sexual
    assault and although these injuries were also consistent with vigorous
    consensual sex, the complainant had recent bruising on other parts of her body
    including her arms.

[7]

Contrary to the submission of the appellant, the trial judge did not
    misapprehend the evidence in any material respect that was essential to her
    credibility assessment.

[8]

It was open to the trial judge to find, as she did, that the frailties
    in the complainants evidence did not undermine the overall veracity of her
    account of being sexually assaulted by the appellant and to find him guilty of
    sexual assault. The verdict is reasonable.

[9]

Accordingly, the appeal is dismissed.

K.M.
Weiler
J.A.

M. Tulloch J.A.

K. van
Rensburg
J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bennett, 2015 ONCA 556

DATE: 20150727

DOCKET: C59959

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent Bennett

Appellant

Ian Carter, for the appellant

John Neander, for the respondent

Heard:  July 22, 2015

On appeal from the conviction entered by Justice J.M.
Johnston of the Superior Court of Justice, dated October 30, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appellant accepts, properly in our view, that there was a reasonable
basis in the evidence for a finding of guilt on the charge.

[2]

He argues that the trial judge misapprehended the evidence in holding
that the appellant failed to negotiate the start of the curve to the point of
impact.  He submits that, at its highest, the evidence supports a failure to
negotiate the curve at some point while the vehicle was in the curve.

[3]

Counsel submits that the difference between the two is crucial to a
finding of guilt on the dangerous driving charge.  In our view, it was open to
the trial judge to interpret the relevant data and the expert evidence as he
did:  see Reasons for Judgment, p. 39, l. 10 to p. 40, l. 18.

[4]

The trial judge did consider the evidence of the people in the car
behind the appellant.  He did not misapprehend it, but rejected it as
unreliable in the circumstances.  He gave detailed reasons for doing so.  Those
reasons accurately reflect the evidence:  see in particular the trial judges
comments at p. 52, l. 20 to p. 53, l. 11 (Re. Ms. MacDonald), p. 76, l. 26 to p.
78, l. 10 (Re. Mr. Trickey).

[5]

The appeal is 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. Collins, 2015 ONCA 561

DATE: 20150728

DOCKET: C57885

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent Collins

Appellant

Michael Dineen, for the appellant

M. Medeiros, for the respondent

Heard:  July 23, 2015

On appeal from the conviction entered by Justice Fitzpatrick
    of the Superior Court of Justice, dated November 20, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appeal must be allowed.

[2]

The fresh evidence establishes that the so called phone charger
    incident occurred in November 2007.  The trial judge, on the evidence he heard,
    placed the incident as occurring between November 2006 and June 2007.

[3]

The trial judge used that erroneous date to fix a chronology of the four
    alleged assaults which led him to draw a distinction between the first three
    sexual assaults on which he acquitted and the fourth on which he convicted.
    When the phone charger incident is placed in its proper place in the chronology
    (November 2007), the distinction relied on by the trial judge to come to his
    conviction on the fourth assault disappears.

[4]

In receiving the fresh evidence, we accept the submission that, while it
    was obviously available at the time of trial, the importance of the timing of
    the phone charger incident could not reasonably have been anticipated prior
    to a reading of the trial judges reasons.

[5]

The appeal is allowed, the conviction quashed and a new trial is ordered
    on counts 6 and 7.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Degraw, 2015 ONCA 515

DATE: 20150708

DOCKET: C56271

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Degraw

Appellant

Gabriel Gross-Stein, for the appellant

Joanne K. Stuart, for the respondent

Heard: July 6, 2015

On appeal from the convictions entered on December 16,
    2011 by Justice
Wolfram Tausendfreund

of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted of ten offences, including attempted
    aggravated assault, discharge of a firearm, and possession of a dangerous
    weapon, following a jury trial presided over by Tausendfreund J. of the
    Superior Court of Justice. He appeals his convictions.

[2]

The charges arose out of an incident at an auto repair shop in Newbury
    on June 1, 2007. Two men, one with a handgun and the other with a sawed-off
    shotgun, arrived at the shop and terrorized the owner and two employees. The
    handgun discharged and a bullet grazed the owners head. The man holding the
    handgun kicked the bleeding owner in the face. He tried to lower the garage
    door, presumably to confine the three men, and he said to the three men you
    guys are done. The owner managed to run from the garage, the man with a
    handgun chased him, and a second shot was fired.

[3]

The appellant raises three grounds of appeal.

[4]

First, the appellant contends that the trial judge erred in two respects
    in the portion of his charge relating to identification evidence  he did not
    provide a sufficient caution on the use of eyewitness identification evidence
    generally and with respect to in-court identifications of the appellant
    specifically.

[5]

We are not persuaded by this submission. The trial judge adequately
    cautioned the jury about the frailties of eyewitness evidence and pointed to
    the specific weaknesses of such evidence in this case. Moreover, the charge as
    a whole properly emphasized the dangers of relying on in-court identifications.

[6]

Second, the appellant submits that the trial judge erred by telling the
    jury [a]n operator of a motor vehicle is presumed to be in possession and
    control of the items in his car. This submission relates to counts 7 and 8 in
    the Information/Indictment  occupy motor vehicle with firearm and possession
    of a loaded prohibited firearm.

[7]

The appellant is correct in his assertion that there is no presumption
    of possession by a driver of items in a car: see
R. v. Lincoln
, 2012
    ONCA 542, at para. 3. (We note that
Lincoln
was decided a year after
    the trial in this case.) However, the trial judge correctly emphasized that on
    count 7 the real question for [the jury] to consider is whether Mr. Degraw
    knew that the shotgun was in the Monte Carlo. On that question, the police
    evidence was that the shotgun was in plain view in the Monte Carlo automobile
    near the appellant who was driving. Moreover, there was evidence that
    Arsenjevic left the automobile with a shotgun, brandished the shotgun in the
    course of the assault, and returned to the vehicle with the shotgun. This was
    sufficient to fix the appellant with knowledge of the presence of the shotgun.

[8]

With respect to count 8, even if a fair reading of the jury charge leads
    to the conclusion that the trial judge linked counts 7 and 8, thereby importing
    the possession presumption into count 8, this error is of no moment. The jury
    could not have found that the appellant was the gunman without necessarily finding
    that he was in possession of a loaded prohibited firearm.

[9]

Accordingly, we would apply the proviso in s. 686(1)(b)(iv) of the
Criminal
    Code
to the minor error in the trial judges charge relating to count 7
    and perhaps count 8.

[10]

Third,
    the appellant asserts that the trial judge erred by giving the same charge on
    attempted murder in relation to both shots. He says that if the jury found, as
    it could have, that the first shot was an accident, then there was no basis on
    which the jury could have concluded that the appellant intended to hit the
    complainant with the second shot.

[11]

We
    disagree. The appellant tried to close the garage door after he fired the first
    shot. He kicked the bleeding complainant in the face. He told the three men
    you guys are done, he chased the complainant out of the garage, he fired a
    second shot, and after he dropped his handgun he went back to the garage to get
    another weapon, a hammer. In these circumstances, even if the first shot was an
    accident, it was proper to instruct the jury on attempted murder in relation to
    the second shot.

[12]

The
    appeal is dismissed.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Edwards, 2015 ONCA 537

DATE: 20150717

DOCKET: C53924

Hoy A.C.J.O and Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul King Edwards

Appellant

Paul J.I. Alexander, for the appellant

Roger A. Pinnock, for the respondent

Heard: In Writing

On appeal from the sentence imposed on May 2, 2011 by
    Justice David W. Salmers of the Superior Court of Justice.

ENDORSEMENT

[1]

Following his conviction on a charge of fraud over $5,000, on May 2,
    2011, the appellant was sentenced to 26 months imprisonment less credit of two
    months and one day for pre-sentence custody, resulting in a net sentence of
    imprisonment of two years less one day
[1]
.

[2]

On December 13, 2011 we allowed the appellants sentence appeal and
    granted him 202 days additional credit for pre-sentence custody.

[3]

The appellant now applies to re-open his sentence appeal and to
    introduce fresh evidence on appeal concerning the immigration consequences of
    his sentence.

[4]

In all the circumstances of this case, we agree that the appellants
    sentence appeal should be re-opened, that fresh evidence should be admitted and
    that the appellants sentence should be further reduced. We reach these
    conclusions for the following reasons.

[5]

First, a sentence appeal may be re-opened where, at the original appeal
    hearing, the court did not have the information needed to fully and properly
    adjudicate the issue of sentence on the merits:
R. v. De la Cruz
,
    [2003] O.J. No. 3235 (C.A.), at para. 4.

[6]

Second, the appellants fresh evidence demonstrates that he was unaware
    when he was sentenced and at the time of his original appeal that, because he
    was sentenced to a sentence of imprisonment of two years or more, he would have
    no right to appeal a deportation order made against him. In the result, he did
    not bring this factor to the attention of the sentencing judge or this court.

[7]

Third, the certainty of deportation is a factor that can be considered
    in determining the appropriate sentence in a particular case:
R. v. B.R.C.
,
    [2010] O.J. No. 3571 (C.A.) at para. 8;
R. v. Hamilton
(2004), 72 O.R.
    (3d) 1 (C.A.), at para. 156.

[8]

Fourth, the appellants personal circumstances make the impact of his
    potential deportation a particularly compelling factor in assessing a fit
    sentence. The appellant is now 45 years old and has lived in Canada since he
    was 18. He has been in a long term relationship with a Canadian citizen, has a
    young child who is a Canadian citizen and has close connections to family in
    the Greater Toronto area. In contrast, he has no family, friends, contacts,
    employment or housing prospects in his homeland, Jamaica. Moreover, he has
    served the full sentence that was originally imposed.

[9]

Fifth, Crown counsel at trial took the position that a fit sentence fell
    within the range of two to three years imprisonment. In that context, a gross
    sentence of two years less a day imprisonment cannot be seen as unfit.

[10]

Sixth,
    while the gross sentence of 26 months imprisonment imposed by the trial judge
    was not unfit, it was imposed  and upheld  without all the information
    necessary to impose an appropriate sentence on the merits.

[11]

In
    all the circumstances, the appellants request to re-open his sentence appeal
    is granted, fresh evidence is admitted and leave to appeal sentence is granted.
    The sentence appeal is allowed, the sentence of 26 months imprisonment is set
    aside, and a sentence of two years less a day imprisonment is imposed less
    credit for two months and 203 days presentence custody. All other terms of the
    original sentence remain the same.

Alexandra Hoy A.C.J.O.

Janet Simmons

R.A. Blair

[1]

The appellant was also ordered to make restitution in the
    amount of $63,396.30.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.E., 2015 ONCA 531

DATE: 20150715

DOCKET: C59048

Hoy A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

H.E.

Respondent

Philippe G. Cowle, for the appellant

Saara Wilson, for the respondent

Heard: May 19, 2015

On appeal from the sentence imposed on June 12, 2014, by
    Justice William A. Gorewich of the Ontario Court of Justice.

Benotto J.A.:

[1]

The respondent lived with
    his wife for sixteen years  thirteen years in Iran and nearly three in Canada.
    During the entire time, he regularly assaulted her and their children.

[2]

He was convicted of
    sexual assault and four counts of assault for the crimes that occurred in
    Canada.

[3]

The sentencing judge imposed
    a total sentence of 18 months in a reformatory plus probation for one year.  In
    doing so, he credited the respondent with an unspecified amount of time for his
    pre-trial house arrest and took into account the cultural impact of the move
    from Iran to Canada. The Crown seeks leave to appeal the sentence. For the
    reasons that follow, I would grant leave and allow the appeal.

BACKGROUND

[4]

The respondent and his now
    former wife were married in Iran in 1996. They have two sons born in 1997 and
    1999. What follows is a summary of the evidence given at trial by the wife and
    the younger son. Their evidence was accepted by the trial judge. The respondent
    did not testify.

[5]

It was routine for the
    respondent to violently assault his wife and children and to rape her. This
    pattern continued when the family moved to Canada in 2009.

[6]

Since moving to Canada,
    the respondent sexually assaulted his wife at least three to four times a month.
    She would try to push him away; she pleaded with him and cried. The respondent
    told her to shut up and not say anything. He forced her to have sex with him by
    hitting her, pulling her hair, pinching her and forcefully removing her
    clothes. The sex was painful. She cried out quietly so the children would not
    hear. She suffered painful bruises to her legs and sides.

[7]

In addition to the sexual
    assaults, the respondent was violent to her and the children.  While there were
    many instances of assaults, two incidents formed the basis of the assault
    convictions against the wife:  the respondent slapped her in the face; and he hit
    her with a pair of slippers. One of the children testified that he witnessed the
    respondent slapping and kicking his mother on several occasions. He also saw
    bruises on his mother as a result of such attacks.

[8]

The respondent also
    abused the two children. He would slap them, kick them, punch them, and hit
    them with a belt. On one occasion he locked them outside on a snowy winter day
    while they were wearing nothing but shorts and T-shirts.  They waited barefoot
    for 40 minutes until their mother arrived home.

[9]

One night in the spring
    of 2012, the respondent started to hit the children in the face and body and
    kick them on the legs. Their mother tried to protect the children by standing
    between them and the respondent. The respondent pushed her away and told her it
    was none of her business. The respondent left the home that night, and by June
    2012 had moved in with a woman he had been secretly dating since February of
    that year. This woman would become (and remains) his common-law spouse.

[10]

The
    abuse did not end when the respondent left the home.  On one occasion when he
    returned to the home to collect mail, he threatened to kill the boys because
    they had told their mother about his new relationship. The younger boy became
    so terrified that he took to sleeping with a knife.

[11]

The
    police would likely never have become involved with the family had the younger son
    not confided in a teacher at his school. In October 2012, he told a teacher who
    called the principal who in turn informed the police. The police interviewed
    the respondents wife and charges were filed.  She testified that she probably would
    not have gone to the police on her own because she felt extreme shame.  Also, she
    was not aware that help was available. She testified that in her country of
    origin no one would help because the respondents conduct was considered
    normal.

Trial Judgment

[12]

The
    respondent was convicted of one count of sexual assault for the many instances
    of forced intercourse, and four counts of assault  two counts with respect to
    his wife and two with respect to the children. Although the convictions were
    limited to the incidents alleged in the indictment, the sentencing judge
    accepted that there had been a pattern of domestic violence which reflected longstanding
    and ongoing abuse.

Reasons for Sentence

[13]

The
    Crown sought a penitentiary term of four years. The respondent sought one year
    of incarceration with up to 18-24 months probation.

[14]

The
    wife and the two children indicated in their victim impact statements that they
    hoped the respondent would get counselling for his anger issues and become a
    better person.  They did not want him to go to jail. The sentencing judge found
    that the younger son, who testified as a Crown witness, loved and was loyal to
    both parents.  During the trial, the younger son said: My dad did bad things
    to me but he is still my dad.

[15]

In
    her victim impact statement, the wife expressed surprise that there were
    potentially serious consequences to the respondents conduct. The sentencing
    judge said that this suggests a significant cultural gap between what is not accepted
    in this country, and what is accepted in her native country.

[16]

The
    sentencing judge referred to the aggravating factors of domestic violence,
    breach of trust and the involvement of minor children.  Mitigating factors
    included the lack of a criminal record.  The judge also referred to:

·

the presentence report which he termed: a positive report,
    except [H.E.] does not accept responsibility;

·

the stringent bail conditions;

·

no injuries to the children;

·

no injuries to [the respondents wife]. No medical treatment was
    ever required. Regarding the sexual assault there was no injury;

·

the certainty of psychological and emotional injury which will
    be long-standing;

·

the respondent as a hardworking person  who provides for his
    family and is active in his church;

·

the respondents behavior that was not predatory in nature; and

·

no threat of future sexual deviant behaviour and he is not at
    risk to re-offend.

[17]

The
    sentencing judge then returned to the issue of culture saying this:

In my considerations, I ask how much weight [should] the
    cultural impact of moving from Iran to Canada be given. [The respondents wife]
    testified in Iran if she complained about any abuse she would be ignored. It is
    a different culture, it is a different society. As far as Im able to ascertain
    from the evidence those cultural differences moved with them from Iran to
    Canada. It is only a factor in my deliberations, and not a sentencing
    principle.

[18]

The
    sentencing judge arrived at a global sentence of eighteen months in the
    reformatory plus probation. He sentenced the respondent to 18 months on the
    sexual assault conviction, 30 days for the assault on the wife with the
    slipper, and four months for the balance of the assaults, apparently
    referring to the other assault on the wife and the assaults on each of the
    children.

[19]

The
    sentences for all the assaults were to be served concurrently with the sentence
    for the sexual assault.

[20]

Although
    the sentencing judge took into account the bail conditions, citing the
    principles set out in
R. v. Downes
(2006),
    79 O.R. (3d) 321 (C.A.),
he did not articulate what credit he
    ascribed to these conditions.

Appeal

[21]

The
    Crown seeks leave to appeal the sentence on the basis that it is manifestly
    unfit.  It is submitted that the sentencing judge erred in several ways, most
    significantly, by considering the allegedly different attitudes toward domestic
    violence in Iran and Canada.

Fresh Evidence

[22]

Fresh
    evidence was admitted on consent. The fresh evidence updated the court with
    respect to the respondents current situation.

[23]

The
    respondent was released on parole after completing six months (one third) of
    his prison sentence. He is still living with his common-law spouse, taking care
    of his two sons, and running his own carpentry business. His two sons live with
    him with the approval of his former wife and his parole officer. He has
    attended counselling on the referral of his parole officer.

ISSUES ON APPEAL

[24]

The
    issues are:

1. Did the sentencing judge err?

2. Was the sentence demonstratively unfit and if so, what
    is the appropriate sentence?

3. Should the respondent be re-incarcerated?

ANALYSIS

[25]

I
    have concluded that the sentencing judge erred in multiple ways.  The
    cumulative effect of the errors led him to impose a sentence that is
    demonstratively unfit.

The Errors

[26]

The
    errors disclosed by the sentencing judges reasons can be grouped into four categories:

1. The cultural
    considerations;

2. His  finding that there were no injuries;

3. His conclusion that the there was no risk of
    re-offending; and

4. His imposition of concurrent sentences.

Cultural Considerations

[27]

The
    respondent did not rely on cultural issues to justify or explain his behaviour.
    He did not testify, and his defence was a denial that the events took place.
    Yet, twice in his reasons, the sentencing judge referred to cultural issues.

[28]

The
    first reference to a significant cultural gap was the sentencing judges
    explanation for the wifes surprise at the sanctions for domestic violence. The
    second reference was to the cultural impact of moving from Iran to Canada.
    The sentencing judge said this was a factor in his deliberations, but not a
    sentencing principle. He stated: As far as Im able to ascertain from the
    evidence those culture differences moved with them from Iran to Canada.

[29]

The
    sentencing judges reasons indicate that he considered the cultural impact in
    his determination of the appropriate sentence. Although his reasons are
    unclear, it appears as though he considered culture as a mitigating factor.
    This is an error for two reasons.  First, the respondent never took the
    position that cultural differences impacted his conduct.  On the contrary, in
    the pre-sentence report he expressly disavowed any suggestion that he felt
    culturally justified in assaulting his wife and children; his defence was
    denial of the events. The respondents factum in this court took the same position.

[30]

Second,
    and more importantly, cultural norms that condone or tolerate conduct contrary
    to Canadian criminal law must not be considered a mitigating factor on
    sentencing.

[31]

The
    Alberta Court of Appeal commented on this issue in
R. v. Teclesenbet
,
2009 ABCA 389, 469 A.R. 193. In that
    case, the offender had immigrated to Canada five days before slapping his wife and
    beating her with a shoe. The wife was hospitalized, and the offender was
    convicted of assault causing bodily harm. The sentencing judge accepted as a
    mitigating factor the offenders claim that, in his home country of Sudan, his
    behaviour was commonplace. The offender received a conditional discharge and 12
    months probation. The Crowns appeal was allowed.  McDonald J.A. wrote for the
    court, at para. 9:

The law of Canada applies equally to all who are in Canada
    regardless of the length of time they have resided here.  To suggest that it
    might be acceptable to beat ones wife with a stick elsewhere does not mitigate
    the seriousness of the offence and is contrary to the purpose of domestic
    violence laws.

[32]

Earlier,
    in
R. v. Brown
(1992), 125 A.R. 150 (C.A.), the same court wrote, at para.
    29:

Even if there were before the court a more articulated
    submission based on social attitudes within a particular ethnic or religious
    community to which the accused belongs, the courts of this province and of this
    country should be alert to the risk of moderating sentencing policy in such a
    case where to do so would mean that some women in Canadian society would be afforded
    less protection than others.

[33]

A
    cultural practice that is criminal in Canada does not mitigate the
    perpetrators conduct for sentencing purposes. Cultural differences do not
    excuse or mitigate criminal conduct. To hold otherwise undermines the equality
    of all individuals before and under the law, a crucial
Charter
value.
    It would also create a second class of person in our society  those who fall
    victim to offenders who import such practices. This is of particular
    significance in the context of domestic violence. All women in Canada are
    entitled to the same level of protection from abusers. The need to strongly
    denounce domestic violence is in no way diminished when that conduct is the
    product of cultural beliefs that render women acceptable targets of male
    violence.  If anything, cultural beliefs may be an aggravating factor enhancing
    the need for specific deterrence in cases where the sentencing judge is
    satisfied that the offender continues to maintain those views at the time of
    sentencing.

No Injuries

[34]

At
    least four times in his reasons the sentencing judge said that there were no
    injuries as a result of the assaults or the sexual assault. This is a
    misapprehension of the evidence. The wife was bruised by the abuse, sexual and
    otherwise. The children were slapped, kicked and hit with a belt. The sentencing
    judge commented that medical attention was not sought.  This does not mean
    there were no physical injuries.

No risk to reoffend

[35]

The
    sentencing judge made an explicit finding that the respondent was at no risk to
    reoffend and an implicit finding that, consequently, specific deterrence was
    not an issue. The record does not support such a finding.

[36]

The
    material before the sentencing judge demonstrated that the respondent was sorry
    only for the situation that he found himself in.  He put the blame on his wife
    and assumed no responsibility. The pre-sentence report states:

The subject denies guilt for the current matter before the
    Court and defers blame for his negative contact with the Criminal Justice
    System to his ex-spouse ... who ... is a victim of the current offences.

...

The subject has not accepted responsibility for his behaviour
    as evidenced through his denial of the offences and designating his ex-spouse
    as the cause of his negative contact with the Criminal Justice System. This may
    limit a meaningful response to any relevant community based counselling
    programs.

[37]

With
    respect to this report, the sentencing judge said:

It is a positive report, except [the respondent] does not
    accept responsibility. A court will look at lack of insight in considering
    sentence. Having said that, I do note at page four of the pre-sentence report
    that he expresses shame regarding his current circumstances with the justice
    system. He acknowledged his offences as dishonourable in nature.

[38]

A
    fair reading of the pre-sentence report indicates that the shame he felt did
    not arise from remorse, or from his actions, but rather from the predicament he
    found himself in as a result of the police investigation into his family life.

[39]

The
    letter from a therapist, also before the sentencing judge, was based on
    self-reports from the respondent. The letter made it clear that the respondent
    was upset for himself. There was no indication of remorse. He continued to
    declare his innocence.

[40]

The
    sentencing judge chose to ignore these facts and instead described the
    respondent as a hardworking person and one who is a law-abiding citizen,
    except for the matters [before the court].

[41]

Given
    the lack of remorse, what then was the evidence that there was no risk to
    reoffend? I see none, except perhaps for the evidence of his common-law partner
    in the pre-sentence report that the offences were out of character. The respondent,
    in his late forties, was found guilty of routinely raping his wife over a many
    years, and of physically attacking his own children. These offences were not
    isolated incidents.  By nearly all accounts, the respondent had difficulty
    controlling his anger. This engaged an inference that the respondent was a risk
    to re-offend. In
R. v. Inwood
(1989), 48 C.C.C. (3d) 173 (Ont. C.A.), at
    p. 181, Howland C.J.O wrote for this court:

[W]here there is a serious offence involving violence to the
    person, then general and individual deterrence must be the paramount
    considerations in sentencing in order to protect the public. In my opinion,
    this principle is applicable not only to violence between strangers but also to
    domestic violence. Domestic assaults are not private matters, and spouses are
    entitled to protection from violence just as strangers are. [Emphasis added.]

[42]

There
    was no basis for the sentencing judge to find that specific deterrence was not
    important in this case.

Concurrent Sentences

[43]

The
    sentencing judge imposed a low global sentence. He imposed  sentences for the
    assaults against the children and made them concurrent to the sexual assault
    and assault against their mother. The assaults on the children were distinct
    from the assault and rapes of their mother. In light of the low global
    sentence, the sentences for the childrens assaults should have been
    consecutive.

Appropriate Sentence

[44]

The
    global sentence of 18 months is manifestly unfit.  In
R. v. Smith
, 2011
    ONCA 564, 274 C.C.C. (3d) 34, at para. 87, this court held that the sentence
    range for cases involving forced intercourse with a spouse is 21 months to 4
    years. The cases at the lower end of the range involve single events.

[45]

In
R. v. D.J.
, [2010] O.J. No 5878, counsel jointly recommended a sentence
    of three years after the guilty plea of a remorseful offender. At paras. 18-21,
    Justice Hill accepted the plea submissions from experienced criminal counsel
    but stated that it was at the low end of an acceptable range.

[46]

As
    here, the offender in
D.J.
had repeatedly raped his partner. Justice
    Hill described the aggravating factors as serial rape  a grossly violative
    intrusion on physical, emotional and psychological autonomy and dignity (para.
    16).

[47]

In
M.Q.
the appellant was convicted of sexually assaulting his wife over
    a period of months using threats and force. He was also convicted of twice assaulting
    her with a weapon by choking her into unconsciousness. The sentencing judge
    imposed a sentence of three-and-a-half years for the sexual assault and two nine
    month sentences for the chokings, all of which were to be served consecutively.
    The global sentence was five years.

[48]

In
    upholding the sentence, Goudge J.A. found, at para. 61, that the sentencing
    judge properly took into account the extended time over which the abuse
    occurred. Here the abuse took place over a period of years, not months. The
    relentless and prolonged nature of the repeated attacks reinforces the importance
    of the principles of denunciation and deterrence.

[49]

The
    requirement for a high degree of denunciation and deterrence arise on the facts
    that the respondent raped his wife three to four times per month for nearly
    three years in Canada  a continuation of a pattern that began 16 years
    earlier. He also victimized the children. The household was terrorized such
    that the younger child took to sleeping with a knife. The respondent was in a
    position of trust in relation to these family members.

[50]

Although
    the respondent had no criminal record, he does not benefit from any mitigation
    in sentence for remorse, since he has expressed none.

[51]

Under
    these circumstances, I would impose a sentence of 44 months for the sexual
    assault. I would not alter the sentences on the common assaults except as
    follows: (i) the term for the assaults on the wife would be concurrent to the
    sexual assault sentence, and (ii) the four months on the assault convictions on
    the children would be consecutive to the sexual assault.  This would result in
    a global sentence of four years.

Credit for Pre-sentence house arrest

[52]

The
    respondent was under pre-sentence house arrest for approximately 18 months. The
    sentencing judge quoted from
Downes
, at para. 29:

Stringent bail conditions
,
    especially house arrest, represent an infringement on liberty and are, to that
    extent, inconsistent with the fundamental principle of the presumption of
    innocence.  House arrest is a form of punishment, albeit of a different
    character than actual incarceration. [Emphasis added.]

[53]

The
    sentencing judge then said:  I will give effect to the stringent bail
    conditions that [the respondent] was subject to. There is no mention of what
    effect is given.

[54]

A
    review of the Judicial Interim Release Order reveals that the conditions were
    anything but stringent.  The respondent was required to continue living with
    his common-law partner in the same house that they had been occupying. He could
    go to and from work, pick up his partner from her work, see his lawyer, and
    leave the house at any time if he was accompanied by his partner, or a friend.
    There is negligible evidence about the impact of the bail conditions on the
    respondent. He continued to work, attend church, and go to counselling
    sessions. He did not seek to vary his bail.  In
Downes
,
the terms were stringent: the offender
    was not permitted to leave the home for any purpose without his surety, not
    even to pursue employment, to attend a place of worship, or to obtain necessary
    medical care. In
Downes
,
the 18-month house arrest entitled him to five months credit.

[55]

The
    sentencing judge did not articulate the credit he awarded.  The decision is
    therefore not entitled to deference. Since the bail conditions were not
    stringent, I would not grant credit.

Reincarceration

[56]

In
    determining whether to recincarcerate an offender as a result of an increased
    sentence, courts have considered a number of factors.  Those factors lose their
    significance when the original sentence imposed utterly failed to reflect the
    principles of denunciation and deterrence and the applicable precedents.   This
    was not a sentence that was slightly outside of the appropriate range. It was
    far outside the range.  On this basis alone, a stay is inappropriate.  A
    consideration of the other factors confirms this result.

[57]

Other
    factors include delay in the appellate process, the degree to which
    rehabilitation of the offender will be impacted by reincarceration and the
    potential for injustice if the sentence is served.   The circumstances giving
    rise to these considerations will vary.  There is some guidance on this issue from
    the New Brunswick Court of Appeal. In
R. v. Veysey,
2006 NBCA 55, 303
    N.B.R. (2d) 290, at para. 32 the court articulated a non-exhaustive list of
    criteria including:  the seriousness of the offences for which the offender was
    convicted; the elapsed time since the offender gained his or her freedom and
    the date the appellate court hears and decides the sentence appeal; whether any
    delay is attributable to one of the parties; and the impact of reincarceration
    on the rehabilitation of the offender.

[58]

These
    factors do not support a stay of the sentence here. There is not a significant
    gap between the release from jail and the release of these reasons; and the
    respondents treatment of his wife and his children led to his conviction for
    serious crimes. I turn to consider the impact of reincarceration on the
    respondents rehabilitation.

[59]

Rehabilitation
    must  by its nature  involve a movement or a change for the better.  On the
    facts before the court, the respondent is in precisely the situation he was in
    at the time of his sentencing. He is still living with his common-law partner.
    He is at the same job. The only change is that the boys, now teenagers, live
    exclusively with him.  There is no evidence of any insight or awareness of the
    seriousness of his actions. On the contrary, the author of the pre-sentence
    report stated that the fact that he blames his ex-wife for his situation limits
    any meaningful response to counselling. In short, there is no evidence of
    rehabilitation and I cannot find that rehabilitation would be negatively
    impacted.

[60]

The
    only potential hardship would be to his boys. There is insufficient evidence to
    make a determination of the family dynamics. The evidence before the sentencing
    judge was that the boys love both their parents. There is no evidence as to the
    mothers current living arrangements, the boys relationship with the
    respondents common law wife or the impact of reincarceration on them. These
    issues, in any event, are more appropriately considered in the parole process.

[61]

The
    court inquired from counsel whether the respondents time on parole thus far
    would be counted towards his time already served.  We were told that it would.
    Therefore, the respondent would receive credit of around one year for time
    served.

DISPOSITION

[62]

I
    would grant leave to appeal sentence and vary the sentence to the global term
    of four years. The probation term would be deleted.  If necessary, a warrant
    for the arrest of the respondent would issue.

Released: A.H. July 15, 2015

M.L. Benotto J.A.

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

I agree Doherty
    J.A.