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    that could identify the complainant or a witness shall not be published in any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. Curtis, 2012
    ONCA 490

DATE: 20120711

DOCKET: C53530

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Curtis

Appellant

Brian H. Greenspan and Jill Makepeace, for the appellant

Robert Gattrell, for the respondent

Heard: July 5, 2012

On appeal from the conviction entered on February 16,
    2011 by Justice Bryan Shaughnessy of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The appellant, Albert Curtis, appeals against his conviction of sexually
    assaulting, and sexually interfering with, his 15 year old music student.

[2]

Although the appellant raised several grounds of appeal in his factum,
    during oral argument, the appellant narrowed the focus of his submissions,
    arguing that the trial judges treatment of the evidence of the appellants
    wife, which, if accepted, would have essentially exonerated the appellant, was
    unfair and illogical, and that the trial judge therefore committed a reversible
    error.  See
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (C.A.), at para.
    59.

[3]

The assault occurred in the basement of the Curtis home in August of
    2008.

[4]

The evidence of the complainant was that, except for her and the
    appellant, no one was home when the assault occurred. The assault was noisy and
    violent. The house was a small, fairly open-concept, side split bungalow.  At
    the time, the appellant and his wife had an infant, no more than 30 days old,
    two other children, one of whom is autistic, and two dogs. Had anyone been
    home, they would have heard the assault.

[5]

The evidence of the appellants wife, Rebecca Curtis, was that during
    August 2008 she did not leave the house, except in the company of the
    appellant. Ms. Curtis evidence therefore provided the appellant with the
    equivalent of a complete alibi.

[6]

The trial judge rejected Ms. Curtis evidence as wholly incredible, unreliable
    and untrustworthy. He provided several reasons for doing so. These included
    that Ms. Curtis was a very troubled woman. The trial judge wrote:

... I am nevertheless troubled by the degree of secrecy that
    Albert Curtis and Rebecca Curtis operated in relation to their life together.
    There is a very troubled relationship wherein she carries a child full-term,
    apparently without his knowledge, and then takes a taxi to the hospital early
    in the morning and gives birth to the child in March, 2005, and immediately
    arranges an adoption from the hospital.

Thus, on her own evidence, Ms. Curtis acknowledged
    that she was capable of deception.

[7]

He also found that some of her evidence appeared rehearsed.  He
    concluded that, despite her claim to the contrary, she requires assistance from
    the appellant to look after her family and was attempting to help her husband
    in his defence.

[8]

In our view, there was an evidentiary basis for the trial judges
    finding that Ms. Curtis was not credible or reliable. The wife had engaged in
    deceit, sustained subterfuge and bizarre behaviour. In addition to the
    undisclosed pregnancy, the wife sent an email directly to the complainant when
    the complainant was only 13 years of age, telling her to stay the hell away
    from my husband .  There was evidence that the police had told the wife of
    the charges against the appellant, and asked her questions about the
    complainant, at the time the wife first volunteered the alibi. On the evidence
    as a whole, the inference drawn by the trial judge that the wife was tailoring her
    evidence to help her husband was not unreasonable. Given the context, the trial
    judge did not, in our view, treat Ms. Curtis evidence unfairly or subject it to
    an unreasonably high standard of scrutiny.

[9]

We are not persuaded that the trial judge committed a reversible error,
    and accordingly dismiss the appeal.

John Laskin J.A.

E.A. Cronk J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dinney, 2012
    ONCA 497

DATE:  20120711

DOCKET: C53869

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Connor Dinney

Appellant

Crystal Tomusiak, for the appellant

Holly Loubert, for the respondent

Heard and released orally: June 28, 2012

On appeal from the conviction entered on October 29, 2010,
    and the sentence imposed on April 1, 2011, by Justice K. Carpenter-Gunn of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant alleges several errors in
    the reasons for judgment of the trial judge vitiate his conviction of assault
    causing bodily harm and require a new trial. He also submits that the sentence
    imposed, imprisonment for six months, reflects errors in principle thus is
    unfit.

The
    Appeal from Conviction

[2]

On the appeal from conviction, the
    appellant says that the trial judge failed to properly apply the standard of
    proof, instead treated the case as a credibility contest between Crown and
    defence witnesses. She misapprehended some of the evidence, applied a stricter
    standard of proof to the evidence called by the defence than to that of the
    Crown, and drew speculative conclusions from other evidence, rather than
    logical common sense inferences. Her assessments of credibility were flawed by
    unwarranted assumptions and circular reasoning.

[3]

The incident upon which the prosecution
    was based occurred after closing time in an entertainment district in the City
    of Hamilton. It is beyond dispute that the appellant and his friends had been
    drinking heavily. They became embroiled in a number of fights with others
    outside one of the licensed premises.

[4]

Bouncers from a licensed establishment
    became concerned that the appellant, who according to some witnesses, was
    jumping up and stomping on the head of an apparently unconscious and bloodied
    man prone on the pavement, would cause the man serious injury or kill him. They
    interceded to break up the fight.

[5]

The appellant and his friends resisted
    the efforts of the bouncers to quell the disturbance. In the end, the appellant,
    who had left the area where the complainant was standing, returned and sucker
    punched him in the head. The complainant dropped immediately to the ground,
    struck his head on the pavement and suffered serious head injuries.

[6]

In a police interview that was admitted
    at trial, the appellant said that he hit the complainant with his hardest
    punch. He did not testify at trial, but contended on the basis of other
    evidence that his conduct was justified in defence of himself and others under
    his protection.

[7]

The reasons of the trial judge are far
    from ideal. That said, in the end this case reduced to a determination of two
    issues, namely, whether the appellant struck the complainant as alleged by the
    Crown and admitted by the appellant in his police statements, and whether the
    blow was justified in lawful self-defence or in defence of another person under
    the appellants protection. The trial judge was alive to these issues and
    grounded her findings largely on the evidence of a  sober, independent witness
    whose observations fully supported those findings.  This she was entitled to
    do.

[8]

In isolation, as is often the case,
    some passages in the reasons of the trial judge appear problematic. In the end,
    however, we are satisfied that her core findings do not reflect any of the
    errors assigned to them by the appellant.

[9]

The appeal as to conviction is
    dismissed.

The
    Appeal from Sentence

[10]

The appellant has also appealed
    sentence.

[11]

In our view, as counsel for the
    appellant acknowledges, the sentence imposed falls within the appropriate range
    of sentence for this offender and this offence. The trial judge considered the
    appellants relative youth, his unblemished record at the time of the offence,
    his subsequent expression of remorse and the fact that the assault involved a
    single blow. She was equally mindful of the relevant sentencing objectives and
    principles, including the fundamental principle of proportionality.

[12]

In the result, although we would grant
    leave to appeal sentence, the appeal from sentence is dismissed.

Paul
    Rouleau J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Formosi, 2012
    ONCA 485

DATE: 20120706

DOCKET: C55080

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent R. Formosi

Appellant

Lucas E. Lung, for the appellant

Robert Maxwell and Ian Daley, for the respondent

Heard and released orally: July 4, 2012

On appeal from the judgment of Justice Norman S. Douglas of
    the Ontario Court of Justice, dated August 16, 2011, dismissing an appeal from
    the sentence imposed by Justice of the Peace Paul MacPhail on April 13, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of breaching s. 31(2) of the
Real
    Estate and Business Brokers Act
, 2002, S.O. 2002, c. 30.  He received a
    fine of $5,000 and a restitution order in the amount of $10,000 was imposed in
    favour of the vendor of the relevant property.  The appellant appeals only the
    restitution order on the basis that, in the absence of any finding that the
    vendor suffered a loss, the restitution order cannot stand.

[2]

We agree that this appeal must be
    allowed and the restitution order set aside.  The Justice of the Peace was
    unable to conclude that the vendor of the property suffered a loss on payment
    of the sum of $10,000 to the appellant on closing of the relevant real estate
    transaction.  A finding of loss is a necessary precondition to the imposition
    of a restitution order.  Further, the evidentiary record in this case does not
    establish that the vendor of the property, in fact, suffered a loss by his
    payment of $10,000 to the appellant.

[3]

Accordingly, the appeal is allowed and
    the restitution order is set aside.  We see no reason to refer the matter back
    to the Justice of the Peace for reconsideration of penalty.  In our view, the
    $5,000 fine imposed is a fit sanction in all the circumstances.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Fuller, 2012
    ONCA 473

DATE: 20120703

DOCKET: C55346

Goudge, Feldman, Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Fuller

Appellant

Najma Jamaldin, for the appellant

Randy Schwartz, for the respondent

Heard: June 29, 2012

On appeal from the sentence imposed by Justice L.
    Duchesneau-McLachlan of the Ontario Court of Justice, dated January 10, 2012.

APPEAL BOOK ENDORSEMENT

[1]

Without our deciding whether the appeal is moot or not, Mr. Schwarz
    concedes that this court has the jurisdiction to hear the appeal on the merits
    in spite of what may be a practice to the contrary.

[2]

On the merits, in our view the sentence was excessive having regard to
    the fact that the appellant is a relatively youthful first offender who had
    never been incarcerated before.  In addition we think it was an error for the
    trial judge to rely upon unsworn and uncontested statements of the appellants
    father from the body of the courtroom, setting out his view that his son
    required treatment for his drug addiction, particularly where it appears there
    was conflict between father and son.  At the very least, the trial judge should
    have ordered a pre-sentence report or heard evidence that could have been
    tested.

[3]

Accordingly, leave to appeal is granted and the appeal is allowed by
    setting aside the sentence imposed by the trial judge and substituting a
    sentence in the terms of the joint submission.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacDonald, 2012
    ONCA 495

DATE: 20120712

DOCKET: C52174

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew MacDonald

Appellant

Saman Wickramasinghe, for the appellant

Xenia Proestos, for the respondent

Hazel Jones, for the intervener Her Majesty the Queen in
    right of Ontario

Heard: June 11, 2012

On appeal from the conviction entered on February 19,
    2009 by Justice John D. Keast of the Ontario Court of Justice, sitting without
    a jury, with reasons reported at 2009 ONCJ 304.

MacPherson J.A.:

A.

introduction

[1]

Following a four day trial, Justice Keast of the Ontario Court of
    Justice convicted the appellant Andrew MacDonald of one count of possession of
    marijuana for the purpose of trafficking contrary to s. 5(2) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19, (
CSDA
) and one
    count of possession of excess unmarked cigarettes contrary to s. 29(1)(a) (as
    it then was) of the
Tobacco Tax Act,
R.S.O. 1990, c. T.10 (
TTA
).
    The trial judge imposed a sentence of four months of imprisonment followed by
    12 months of probation on the
CDSA
conviction and a $4,205 fine on the
TTA
conviction.

[2]

On this appeal, the appellant appeals the
CDSA
conviction.
[1]
,
[2]
He contends that his rights under ss. 8 and 10 of the
Canadian Charter of
    Rights and Freedoms
were violated by the investigating police officers and
    that the evidence relating to the trafficking charge found in his vehicle
    should have been excluded under s. 24(2) of the
Charter
. He seeks an
    acquittal on the
CDSA
charge or, in the alternative, an order for a
    new trial.

B.

Facts

(1)

The parties and events

[3]

The appellant and his friend Joshua Beaucage were driving in the
    appellants Dodge Caravan en route to Christian Island where they were to perform
    in an aboriginal drum ceremony. At approximately 12:30 a.m. on July 7, 2007,
    Ontario Provincial Police officers Constable Joe McCallion and Sergeant Kevin
    Webb, who were on radar patrol on Highway 17 in the Sudbury area, clocked the
    van travelling at 121 km/h in a 90 km/h zone. They stopped and detained the
    appellant for speeding contrary to the
Highway Traffic Act
, R.S.O.
    1990, c. H.8 (
HTA
).

[4]

At first, Constable McCallion took the lead on the
HTA
stop; he
    approached the appellant on the drivers side. Sergeant Webb approached the
    passenger side where Mr. Beaucage sat for officer safety reasons. Sergeant Webb
    peered through the passenger-side window. He observed a brown cardboard box in
    the large open area at the back of the van. He estimated its dimensions as
    about 20 x 10 x 14. He also noticed some lettering on the top left and right
    corners of the box, SM and FF respectively. Based on his experience, Sergeant
    Webb became suspicious that the box contained contraband cigarettes.

[5]

Sergeant Webb came around to the drivers side. He asked the appellant what
    was in the box. The appellant replied that he  did not know. Sergeant Webb
    repeated the question and the appellant responded that the box contained
    cigarettes for his mother-in-law and for the pow-wow he was heading to.

[6]

Sergeant Webb went back to the police cruiser and called Jack Anthopoulos,
    the on-call senior investigator at the provincial Ministry of Revenue, to
    obtain authorization to detain and search the vehicle pursuant to s. 24(1) of
    the
TTA
. Mr. Anthopoulos concluded that there were reasonable and
    probable grounds to believe that the vehicle contained evidence of a
    contravention of the
TTA
. He granted authorization to detain and
    search the appellants vehicle and seize any products or paperwork relating to
    the purchase, sale, and transportation of cigarettes.

[7]

The search revealed, among other items, a bag containing 310 grams of
    marijuana and a fanny pack containing $4,872.75 in cash. The cardboard box
    contained 50 plastic bags, each containing 200 unmarked cigarettes.

[8]

There are other facts relevant to the disposition of this appeal. They
    are better dealt with in the context of the legal issues to which they relate.

(2)

The trial judgment

[9]

At trial, the appellant applied to have the evidence against him,
    including the marijuana, cigarettes, and his oral utterances to Sergeant Webb,
    excluded under s. 24(2) of the
Charter
on the basis that his rights
    under ss. 8, 9 and 10 of the
Charter
had been violated. The trial judge
    dismissed the
Charter
motions, admitted the evidence, and convicted
    the appellant.

[10]

The
    appellant appeals from the s. 8 and s. 10 rulings.

C.

Issues

[11]

In
    his factum and his oral argument, the appellant addresses five issues, albeit
    in different order. I propose to consider the issues in the chronological order
    presented by the
Charter
.

(1)

Did the trial judge err by
    concluding that Sergeant Webbs opening of the vans sliding door did not
    constitute an unreasonable search pursuant to s. 8 of the
Charter
?

(2)

Did the trial judge err by
    concluding that Sergeant Webbs questions to the appellant about the cardboard
    box did not constitute an unreasonable search pursuant to s. 8 of the
Charter
?

(3)

Did the trial judge err by
    concluding that the search pursuant to the
TTA
was properly
    authorized?

(4)

Did the trial judge err by
    concluding that Sergeant Webbs questions about the cardboard box did not
    trigger a requirement that the police inform the appellant about his rights
    under s. 10 of the
Charter
?

(5)

Did the trial judge err by not
    excluding the appellants utterances, the marijuana, and the cigarettes
    pursuant to s. 24(2) of the
Charter
?

D.

analysis

(1)
Opening the van door and
Charter
s. 8

[12]

At
    trial, one of the contested areas of testimony was whether Sergeant Webb opened
    the vans sliding door on the drivers side and peered inside prior to
    receiving authorization under s. 24(1) of the
TTA
.

[13]

The
    trial judge found that Sergeant Webb only opened the vans door after obtaining
    the
TTA
authorization. In making this finding, the trial judge
    accepted Sergeant Webbs testimony about the timing of the door opening,
    rejected the appellants and Mr. Beaucages testimony to the contrary, and said
    that Constable McCallions testimony on the point was inconclusive.

[14]

The
    appellant challenges the finding of fact relating to Constable McCallions
    testimony. The appellant contends that, read properly, Constable McCallions
    testimony was consistent with the testimony of the appellant and Mr. Beaucage
    and should have led the trial judge to find that Sergeant Webbs opening of the
    van door constituted an unreasonable search.

[15]

The
    trial judge discussed Constable McCallions testimony in this fashion:

The observation of MacDonald and Beaucage as to the initial
    opening of the sliding door does have some support in the evidence of Officer
    McCallion. Officer McCallions evidence on this point was contradictory and
    inconsistent, but he did say at one point the sliding door was opened before
    the section 24(1) authorization.

That one answer  indicating an early opening up of the door
    must be assessed together with all of his answers on this point. Considering
    the totality of his answers, he does not know when the sliding door was opened.

[16]

I
    agree that this passage  1½ paragraphs in a 209 paragraph judgment
    mischaracterizes Constable McCallions evidence. On at least three occasions,
    Constable McCallion indicated that Sergeant Webb opened the van door and looked
    inside before the
TTA
authorization had been obtained. Typical of his
    testimony on this point was this exchange during his cross-examination:

Q.      Do you have any independent recollection of Sergeant
  Webb opening up the back door of the Caravan?

A.      Yes.

. . .

Q.      And he opened the back door before there was any
    conversation with the  before the tobacco police, lets call them, were
    contacted by yourself or by Constable (sic) Webb, a lot later in the  investigation.

A.      It was after a conversation with Mr. MacDonald but
  prior to the conversation with the tobacco   officer.

Q.      And prior to the authorization to search the vehicle
  that was given by the tobacco officer.

A.      Thats correct.

[17]

However,
    although I accept the appellants submission on this factual point, I do not
    think it makes a practical difference in the result. For officer safety
    reasons, Sergeant Webb had already looked through the vans open window and
    seen the cardboard box. The appellant does not challenge the validity of that
    search. Similarly, when Sergeant Webb opened the van door  whenever that
    occurred  what he saw was the same cardboard box. The appellant does not
    contend, and there is no evidence, that Sergeant Webb engaged in any activity
    other than looking at the interior of the van when he opened the door.
    Accordingly, just as the search relating to Sergeant Webbs observation through
    the open window was reasonable, so too the search relating to his observation
    through the open door was also reasonable.

(2)

Sergeant Webbs questions and
Charter
s. 8

[18]

The
    appellant contends that the trial judge erred by concluding that Sergeant
    Webbs questions to the appellant about the contents of the cardboard box did
    not amount to an unreasonable search. In support of this position, the
    appellant relies on a passage from Cory J.s judgment in
R. v. Mellenthin
,
    [1992] 3 S.C.R. 615, at p. 625:

The police questions pertaining to the appellants gym bag, the
    search of the bag and of the appellants vehicle were all elements of a search.
    Furthermore, the search was made without the requisite foundation of reasonable
    and probable grounds. It was therefore an unreasonable search in contravention
    of s. 8 of the
Charter
.

[19]

In
    my view, there is an overlap between this issue and the fourth issue. Since the
    trigger for the analysis in
Mellenthin
was the detention of
    Mellenthin, and since the appellant advances the legal argument that Sergeant
    Webbs questioning of the appellant raises a
Charter
s. 10 issue that
    flowed from his detention, I will address it in that context.

(3)

Was the search properly authorized
?

[20]

The
    appellant advances two arguments on this issue.

[21]

First,
    the appellant submits that the information provided by Sergeant Webb to Mr.
    Anthopoulos was insufficient to furnish the requisite reasonable and probable
    grounds to believe that a search of the van would produce evidence of a
    contravention of the
TTA
.

[22]

I
    do not accept this submission. The trial judge reviewed the information
    available to both Sergeant Webb and Mr. Anthopoulos and concluded that it was
    sufficient, on the subjective and objective standard, to support reasonable
    and probable grounds of an infraction under the
Tobacco Tax Act
.
    Although I am not persuaded that all of the factors listed by the trial judge
    were relevant  for example, the identity of the driver and his residence  I
    do agree with his ultimate conclusion on this issue.

[23]

Second,
    the appellant submits that the trial judge erred in finding that Sergeant Webb
    was properly authorized in law to receive sub-delegated power from Mr.
    Anthopoulos.
[3]

[24]

I
    disagree. I endorse the trial judges reasoning on this issue:

In analyzing this, the starting point is section 7(1) of the
Ministry
    of Revenue Act
,
which provides the Minister of Revenue may delegate
    the Ministers statutory powers and/or duties to the Deputy Minister or to a
    public servant who works in or provides services to the Ministry. The
    Minister made a Delegation Order dated June 13
th
, 2007 that
    provides, in part, the Ministers power under section 24(1) of the
Tobacco
    Tax Act
(to authorize a search and seizure) is delegated to specified
    persons in the Special Investigations Branch, including senior investigators.

The power to conduct the search comes from section 24(1) of the
Tobacco Tax Act
, which provides that any person authorized for the
    purpose by the Minister [or delegate] who has reasonable and probable grounds
    to believe that a vehicle, trailer, etc. contains evidence of a contravention
    of the
Act
, may exercise various investigatory search powers set out
    in paragraphs (a) through (d) of that section.  This provision directly
    empowered Sergeant Webb (any person) to conduct the search and seizure once
    he had the two prerequisites required by the section:

(i)

authorization
    from the Minister (or in this case, his delegate Mr. Anthopoulos); and

(ii)

reasonable
    and probable grounds to believe he would discover evidence of a contravention
    of the
Act
.

Mr. Anthopoulos, acting as the Ministers delegate, authorized
    Sergeant Webb to search Mr. MacDonalds vehicle, as he was empowered to by
    virtue of section 24(1) of the
Tobacco Tax Act
and section 7(1) of the

Ministry of Revenue Act
.  Once so authorized, and with
    reasonable and probable grounds, Sergeant Webb exercised the investigatory
    powers provided directly to him (any person) under
paragraphs 24(1)
(a)
    through (d) of the
Tobacco Tax Act
.

(4)

Detention and s. 10 of the
Charter

[25]

The
    trial judge found that the appellant was detained under the
TTA
at the
    point in time when Sergeant Webb walked back to the police cruiser with the
    intent of seeking authorization to search the van pursuant to s. 24(1) of the
TTA
.
    The trial judge commented that before walking back to the cruiser Sergeant Webb
    should have advised the appellant that he was being detained under the
TTA.
The
    trial judge reasoned that this was the same point when the appellants s. 10
    rights crystallized:

The philosophy behind section 10(a) and (b) is a person is
    placed in
jeopardy
. When such happens, the person
    should know about it and be advised of the right to counsel. In this case,
    jeopardy occurred when Sergeant Webb felt he had reasonable and probable
    grounds and was going to seek authorization for a search.
    [Emphasis in original.]

[26]

The
    trial judge therefore held that the appellants s. 10(b) rights were breached
    but that it was of no consequence because no evidence was collected pursuant to
    that breach.

[27]

The
    appellant contends that the trial judge erred in one of two ways. Either the
    trial judge should have found that the exemption on s. 10 rights occasioned by
    an
HTA
detention reached an end as soon as the questioning moved beyond
    the subject matter of the
HTA
or the trial judge should have found that
    the questioning triggered a parallel investigative detention to which s. 10
    rights accrued. If either of the appellants arguments is accepted, it follows
    that Sergeant Webbs question about the contents of the box, which had nothing
    to do with the speeding offence, should not have been asked, absent Sergeant
    Webb providing the appellant with the information about his rights under s. 10
    of the
Charter
.

[28]

While
    I do not agree that the appellant was detained under the
TTA
when the
    impugned questioning began, I do agree with the submission that the appellants
    s. 10
Charter
rights crystallized when the nature of the questioning
    shifted towards a
TTA
investigation.

[29]

The
    case law makes it clear that a roadside stop of a vehicle for possible
    violations of the
Criminal Code
(e.g. impaired driving) or provincial
    regulatory offences under statutes like the
HTA
(e.g. speeding) is a
    detention: see e.g.
R. v. Hufsky
, [1988] 1 S.C.R. 621;
R. v.
    Ladouceur
, [1990] 1 S.C.R. 1257;
Mellenthin
;
R. v. Orbanski
;
R. v. Elias
, 2005 SCC 37, [2005] 2 S.C.R. 3; and
R. v. Harrison
,
    2009 SCC 34, [2009] 2 S.C.R. 494. Furthermore, the Supreme Court of Canada held
    in
Orbanski
, at para. 60, that the implicit limitation on the s. 10(b)
    right to counsel that is inherent to roadside stops was justifiable under s. 1
    of the
Charter
.

[30]

In
    the present case, the appellant remained detained throughout the time that the
    police officers processed his speeding infraction. The appellant was not free
    to leave the scene until this process was completed. In this context, Sergeant
    Webbs question about the contents of the box, flowing from his suspicion that
    the box contained illegal cigarettes, placed the appellant in jeopardy pursuant
    to the
TTA
. This new jeopardy triggered the appellants s. 10 rights,
    especially his right to consult counsel. The reason for this was cogently
    explained by Doherty J.A. in
R. v. Harris
,
2007 ONCA 574, 87 O.R. (3d) 214, at para. 40:

A person under police detention who is being asked to
    incriminate himself has more than a reasonable expectation of privacy with
    respect to the answers to any questions that are put to him by the
    police.  That person has a right to silence unless he or she makes an
    informed decision to waive that right and provide the requested information to
    the police:
R. v. Hebert
(1990), 57 C.C.C. (3d) 1 (S.C.C.).

[31]

It
    is true that when Sergeant Webb asked the question about the contents of the
    box, the appellant was not yet detained under the
TTA
. However, he was
    detained under the
HTA
and he could not leave the scene. In such a
    circumstance, at a common sense level and as a matter of law, Cory J.s
    statement in
Mellenthin
,
at p. 622, is apposite:

There can be no question that the appellant was detained and,
    as a result, could reasonably be expected to feel compelled to respond to
    questions from the police.

It is true that a person who is detained can still consent to
    answer police questions. However, that consent must be one that is informed and
    given at a time when the individual is fully aware of his or her rights. This
    was certainly not the situation which was present in this case.

[32]

For
    these reasons, I conclude that the trial judge erred in not finding that the
    appellants s. 10 rights crystallized when Sergeant Webb asked him the question
    about the contents of the box. Before answering the question, which had nothing
    to do with his speeding offence, he should have been advised of his right to
    consult counsel. His s. 10(b)
Charter
right was violated.

(5)

Charter
s. 24(2)

[33]

The
    appellant submits that the his response to the question about the contents of
    the box and the marijuana and cigarettes found in the van should be excluded
    under s. 24(2) of the
Charter
, which provides:

Where, in proceedings under subsection (1), a court
    concludes that evidence was obtained in a manner that infringed or denied any
    rights or freedoms guaranteed by this Charter, this evidence shall be excluded
    if it is established that, having regard to all the circumstances, the
    admission of it in the proceedings would bring the administration of justice
    into disrepute.

[34]

The
    test relating to s. 24(2) of the
Charter
was set out by McLachlin C.J.
    and Charron J. in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    para. 71:

When faced with an application for exclusion under s. 24(2), a
    court must assess and balance the effect of admitting the evidence on societys
    confidence in the justice system having regard to: (1) the seriousness of
    the
Charter
-infringing state conduct (admission may send the message
    the justice system condones serious state misconduct), (2) the impact of the
    breach on the
Charter
-protected interests of the accused (admission
    may send the message that individual rights count for little), and (3)
    societys interest in the adjudication of the case on its merits. The
    courts role on a
s. 24(2)
application
    is to balance the assessments under each of these lines of inquiry to determine
    whether, considering all the circumstances, admission of the evidence would
    bring the administration of justice into disrepute.

[35]

I
    do not think that Sergeant Webbs failure to inform the appellant about his
Charter
s. 10(b) rights was a particularly serious breach. Sergeant Webb was not
    engaged in a
Mellenthin
-like fishing expedition conducted at a random
    highway check. It was an inquiry into a potential regulatory offence during a
    valid highway stop for speeding. Moreover, the single question was minimally
    intrusive.

[36]

The
    second
Grant
factor tells in favour of the appellant. In
Grant
,
    after a comprehensive analysis of the principle of self-incrimination and the
    sections of the
Charter
grounded in this principle, including s.
    10(b), McLachlin C.J. and Charron J. stated, at para. 96, that the analysis
    under this line of inquiry supports the general exclusion of statements taken
    in breach of the
Charter
. I see nothing in the facts of this case to
    remove it from this general rule. Since the police officers would not have had
    reasonable and probable grounds to search the van without the appellants
    answer to the question about the contents of the box, it follows that the
    marijuana and cigarettes would not have been found by the police had the
    appellant not made the self-incriminating response.

[37]

The
    third
Grant
factor favours the respondent. The marijuana and
    cigarettes are reliable evidence and so their admission supports the societal
    interest that criminal and regulatory offences be prosecuted on their merits.

[38]

In
    striking the appropriate balance among these three factors, I return to
    McLachlin C.J.s and Charron J.s discussion of the category of evidence they labelled
Statements of the Accused
, at
    paras. 89-98
. After reviewing the relevant legal principles and
    policy considerations in this domain, they concluded their analysis in this
    fashion, at para. 98:

In summary, the heightened concern with proper police conduct
    in obtaining statements from suspects and the centrality of the protected
    interests affected will in most cases favour exclusion of statements taken in
    breach of the
Charter
, while the third factor, obtaining a decision on
    the merits, may be attenuated by lack of reliability.  This, together with
    the common laws historic tendency to treat statements of the accused
    differently from other evidence, explains why such statements tend to be
    excluded under s. 24(2).

[39]

Allowing
    that in this case there is no reliability concern about the appellants answer
    to the question, it seems to me that the content and spirit of this summary
    point to a balancing of the
Grant
factors in favour of excluding the
    appellants answer, the marijuana, and the cigarettes.

E.

DISPOSITION

[40]

I
    would allow the appeal and enter an acquittal on the charge of possession of
    marijuana for the purpose of trafficking contrary to the
CDSA
.

Released: July 12, 2012 (J.C.M.)

J.C. MacPherson J.A.

I agree. Robert P. Armstrong
    J.A.

I agree. S.E. Pepall J.A.

[1]
The appellants appeal of the
TTA
conviction is proceeding in the
    Superior Court of Justice.

[2]
The appellant had appealed his sentence. At the appeal hearing, he abandoned
    this component of his appeal.

[3]
The appellant addressed this issue in his factum, but not in his oral argument.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Matte, 2012
    ONCA 504

DATE:  20120719

DOCKET: C53669

Juriansz, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Corey Matte

Appellant

Fergus J. (Chip) OConnor, for the appellant

Holly Loubert, for the respondent

Heard: May 30, 2012

On appeal from the conviction entered by Justice Rommel
    G. Masse of the Ontario Court of Justice on January 13, 2011, and from the
    sentence imposed by Justice Masse on February 4, 2011.

Watt J.A.:

[1]

The appellant, Corey Matte, is long-term offender (LTO). Contrary to a
    term of his long-term supervision order (LTSO), he took a pill held out by a
    fellow offender to be Dilaudid.  A judge convicted Matte of breaching his LTSO
    and sentenced him to nearly a year in jail in addition to the time he had
    already spent in custody awaiting trial.

[2]

Matte appeals both his conviction and sentence. He says that the
    conviction is unreasonable because the Crown did not prove that the pill he
    admitted taking was Dilaudid. But even if he were properly convicted, he
    contends that the sentence imposed was out of proportion to the offence he
    committed.

[3]

These reasons explain why I disagree with the appellant and would
    dismiss his appeal against conviction and sentence.

the conviction appeal

[4]

The evidence adduced at trial was brief and uncomplicated.

The Background

[5]

In early 2010, the appellant lived under the supervision of his parole
    officer at the Portsmouth Community Correctional Centre in accordance with the
    terms of his LTSO. The LTSO required the appellant to abstain from the use of
    drugs, other than those prescribed by a doctor and over-the-counter drugs taken
    as directed by the manufacturer.

[6]

To ensure the appellants compliance with this prohibition on drug use,
    his parole supervisor was authorized to make random demands for urine samples
    for analysis. The appellant was required to comply with such demands.

The Demand

[7]

Around January 19, 2010, the appellants parole supervisor, concerned
    about possible drug use, issued a demand for a urine sample for analysis. The
    appellant attempted to avoid providing the sample. When questioned by his
    parole supervisor, the appellant, who worked part-time as a fitness instructor,
    explained that he was taking creatine, a body-building supplement. The appellant
    expressed concern that the presence of creatine might interfere with the
    urinanalysis.

[8]

When his supervisor pressed further, the appellant said that the night
    before the demand was made, two other residents at Portsmouth had pressured him
    to take an orange or red pill. The appellant, a person with a lengthy history
    of drug addiction took the pill, which he had been told was Dilaudid. In the
    same conversation, the appellant admitted to his parole supervisor that he had
    a drug problem and needed to participate in a residential treatment program.

The Test Results

[9]

About a week later, the urinanalysis results came back. Neither Dilaudid
    nor creatine was detected. The parole supervisor suspected that someone elses
    urine had been substituted for testing.

The Case for the Crown

[10]

The
    case for the Crown consisted of the appellants admission to his parole
    supervisor that he had taken a 2 milligram pill offered to him by another
    offender as Dilaudid. The pill was orange or red in colour.

The Arguments on Appeal

[11]

For
    the appellant, Mr. OConnor reinvigorates the argument advanced, but rejected,
    at trial. He says that the conviction is unreasonable in the absence of proof,
    by certificate of analysis or otherwise, that the pill the appellant took was in
    fact Dilaudid. The trial judge relied on the appellants admission to carry the
    full burden assigned to the Crown. It was an error to do so because the
    admission was based on hearsay unconfirmed by other evidence. Further, the
    trial judge reversed the onus of proof, essentially requiring the appellant to
    establish that the pill was not Dilaudid.

[12]

For
    the respondent, Ms. Loubert says that the finding of guilt was reasonable:  it
    was a conclusion that a reasonable trier of fact, properly instructed and
    acting judicially, could have rendered.

[13]

Ms.
    Loubert says that the existence of a drug may be proven by direct or
    circumstantial evidence. The manner of proof includes, but is not limited to, a
    certificate or other proof of the results of analysis. As a matter of law and
    in the circumstances of this case, the trial judge could rely on the
    appellants admission, which accepted or reflected his belief in the truth of
    the statement of another about the nature of the pill. The conclusion of guilt
    in this case was based on the evidence as a whole untainted by any shift or
    reversal of the onus of proof.

The Governing Principles

[14]

Several
    basic principles are at work in connection with this ground of appeal.

[15]

First,
    the standard to be applied in determining whether a finding of guilt is unreasonable
    or cannot be supported by the evidence is whether the verdict is one that a properly
    instructed jury, acting judicially, could reasonably have rendered:
R. v.
    Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36;
R. v. Yebes
,
    [1987] 2 S.C.R. 168, at p. 185; and
Corbett v. The Queen
, [1975] 2
    S.C.R. 275, at p. 282.

[16]

The
    test or standard to be applied in determining whether a finding of guilt is
    reasonable includes both objective and subjective assessments. The reviewing
    court must determine what verdict a reasonable jury, properly instructed, could
    judicially have reached. In doing so, the court must review, analyze, and
    within the limits of appellate disadvantage, weigh the evidence:
Biniaris
,
    at para. 36.

[17]

Second,
    submissions that allege a trial judge misapprehended the evidence may refer to
    a failure to consider evidence relevant to a material issue, a mistake about
    the substance of the evidence, or a failure to give proper effect to an item or
    items of evidence:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at
    p. 538. A finding that a trial judge misapprehended the evidence may become the
    centerpiece of an argument that the verdict was unreasonable:
Morrissey
,
    at p. 540. It seems to logically follow that a failure to give proper
    effect to an item of evidence that plays an essential part in the reasoning
    process leading to a finding of guilt yields a conviction that is not based
    exclusively on the evidence, and, thus, constitutes a miscarriage of justice:
Morrissey
,
    at p. 541.

[18]

Third,
    as with other issues of fact, the Crown may prove the nature or character of a
    substance by circumstantial evidence. Proof by introduction of a certificate of
    analysis is one, but not the exclusive, method of proof:
R. v. Labine
(1975),
    23 C.C.C. (2d) 567 (Ont. C.A.), at pp. 570-571. In each case it is incumbent on
    the trial judge to consider the circumstantial evidence in its entirety and to
    assess its ability to satisfy the Crowns obligation to prove the unlawful
    character of the substance beyond a reasonable doubt.

[19]

Fourth,
    a party making an admission may adopt a hearsay statement as his or her own for
    the purpose of admitting the facts disclosed in that statement:
R. v. Streu
,
    [1989] 1 S.C.R. 1521, at p. 1529. Admissions are not subject to the rules for
    testimonial qualifications of personal knowledge:
R. v. Schmidt
,
    [1948] S.C.R. 333, at p. 336;
Streu
, at p. 1528; and
Wigmore on
    Evidence, vol. 4 (Chadbourn Rev.)
, § 1053, at p. 16.

[20]

Finally,
    we exclude hearsay, in part at least, because we consider extra-judicial
    statements tendered without affording an opportunity to the party against whom
    it is adduced to cross-examine the declarant inherently untrustworthy. But this
    rationale is sapped of much of its vigour when the party against whom the
    statement is tendered chooses him or herself to rely on the hearsay statement
    in making the admission:
Streu
, at p. 1529.  Where a party indicates a
    belief in, or acceptance of, a hearsay statement of another, such a belief or
    acceptance is some evidence of the truth of the contents of the hearsay
    statement:
Streu
, at p. 1530;
Wigmore
, at § 1053, p. 16.

The Principles Applied

[21]

I
    would not give effect to this ground of appeal.

[22]

In
    this case, the appellant told his parole supervisor that he had taken an orange
    or red pill provided to him by a fellow offender at Portsmouth Community
    Correctional Centre and described by the supplier as Dilaudid. The appellant
    made this admission in the context of a demand by his supervisor that he
    provide a urine sample for drug analysis. The appellant, an experienced
    consumer of illicit drugs, admitted that he needed help for his ongoing
    addiction problems and expressed concern about the results of the urinanalysis.

[23]

In
    accordance with the principles in
Streu
, set out above, it was open to
    the trial judge on the evidence adduced in this case to conclude that the
    appellants admission reflected his belief in, or acceptance of, the truth of
    his suppliers statement that the pill was Dilaudid. In the result, there was
    evidence that the appellant took Dilaudid. The weight to be assigned to this
    evidence was for the trial judge to determine.

[24]

A
    careful examination of the trial judges reasons, considered as a whole, puts
    paid to any submission that he misapprehended the substance or effect of
    evidence of the appellants admission, or for that matter, any other evidence
    adduced at trial, or that he shifted the onus of proof to the appellant to
    disprove the unlawful character of the pill he admittedly took.

the sentence appeal

[25]

The
    appellant also appeals the sentence imposed by the trial judge, a net sentence
    of 350 days imprisonment.  The trial judge considered this sentence to be the functional
    equivalent of a sentence of two years when considered alongside the credit he
    awarded for pre-sentence custody (380 days).

The Reasons for Sentence

[26]

In
    his lengthy reasons for sentence, the trial judge noted the significant role of
    the appellants acknowledged drug addiction in his personal life and
    relationships, and in the commission of the offences of which he has been
    convicted. Prevalent themes in the appellants lengthy history of violent
    recidivism include emotional instability exacerbated by substance abuse. The
    appellants relationships require close supervision because he poses a high
    risk of domestic violence and a very high risk of violent or sexual recidivism.

[27]

The
    trial judge also expressed concern about the appellants response to
    conditional release and community supervision, as well as his response to
    recommended programming. The appellant has been deceptive in reporting his
    community activities, tending to deny or minimize his bad behaviour. His
    compliance with the LTSO has been less than satisfactory, and with community
    supervision, superficial. The appellant fails to recognize the importance of
    his LTSO conditions to the management of the risk he presents in the community.
    He is an untreated violent offender with psychopathic tendencies.

[28]

In
    his discussion of the applicable objectives and principles of sentencing, the
    trial judge characterized the protection of the public as the whole purpose
    of the LTO provisions. He said:

Persons who are subject to long-term supervision are deemed to
    be very likely to reoffend unless restrictions are placed on them and unless
    they follow these restrictions. They must be made to know that they are on a
    very short leash and that society will not tolerate any breach, no matter how
    insignificant and that any breach will result in the offender being separated
    from society for the protection of society.

[29]

The
    sentencing judge considered the paramount sentencing objective was protection
    of the public achieved by separating the appellant from the community thereby
    reducing the palpable risk of violent recidivism. He acknowledged the relevance
    of the principle of proportionality, the possibility of rehabilitation and the
    continuing importance of specific deterrence.

The Positions of the Parties

[30]

For
    the appellant, Mr. OConnor says that the trial judge erred in failing to
    appreciate that the objectives and principles of sentencing, provided for in
    Part XXIII of the
Code
, apply to sentencing proceedings for breaches
    of LTSOs. The trial judge failed to give effect to the fundamental principle of
    sentencing - proportionality.  Instead, the trial judge considered the
    appellants LTO status dispositive. The sentence imposed was disproportionate
    to the gravity of the offence and the appellants moral responsibility. It was
    driven by deterrence and denunciation, took no account of rehabilitation, and
    ignored proportionality.

[31]

For
    the respondent, Ms. Loubert acknowledges that the trial judge erred in
    principle in assigning prominence to the protection of the public and only
    minimal weight to rehabilitation. She concedes that, as a result of the
    decision in
R. v. Ipeelee
, 2012 SCC 13,
280 C.C.C.
    (3d) 265,
which was rendered after the imposition of sentence, the
    deference that would normally be accorded to the sentencing decision falls away
    and leaves us to consider the matter afresh.

[32]

Ms.
    Loubert submits that in the end, deference or no deference, the sentence imposed
    was fit. The appellant has a substantial record for offences of violence and
    represents a significant risk of violent recidivism. The risks of violence and
    recidivism are enhanced when the appellant uses drugs. The breach here involved
    drug consumption. The prohibition breached was inserted in the LTSO to
    eliminate drug consumption as a risk-enhancing factor; thus, what appears at
    first a minor transgression is anything but.

[33]

Ms.
    Loubert underscores the appellants dismal performance on any form of conditional
    release, his established history of non-compliance, his intransigent attitude
    towards supervision and counselling, and his thinly-veneered response to
    community supervision.

The Governing Principles

[34]

In
Ipeelee,
a decision not available to the sentencing judge, the Supreme
    Court of Canada examined the principles that govern sentencing of offenders for
    breaches of LTSOs. Although
Ipeelee
dealt specifically with Aboriginal
    offenders convicted of breaches of LTSOs, several principles of fundamental importance
    to all LTOs emerge.

[35]

First,
    long-term supervision, as a form of conditional release, has two specific
    objectives:

i.        protecting
    the public from the risk of re-offence; and

ii.       rehabilitating
    the LTO and reintegrating him or her into the         community.

Ipeelee
, at para. 48.

[36]

Second,
    it is wrong to say that the main consideration in sentencing an LTO is the
    protection of the public and that significant sentences must be imposed even
    for slight breaches of LTSOs:
Ipeelee
, at paras. 48-49.

[37]

Third,
    the severity of a breach of an LTSO depends on all the circumstances,
    including, but not only:

i.        the
    circumstances of the breach;

ii.       the
    nature of the condition breached; and

iii.      the
    relationship between the condition breached and the   management of offenders
    risk of re-offence.

Ipeelee
, at paras. 52 and 55.

[38]

Fourth,
    rehabilitation will not always be the foremost consideration when determining a
    fit sentence for breach of an LTSO. The duty of the sentencing judge is to
    apply all the principles mandated by ss. 718.1 and 718.2 of the
Criminal
    Code
in order to devise a sentence that furthers the overall objectives of
    sentencing. The relative weight to assign to each sentencing principle or
    objective varies with the circumstances of the particular breach. But in the
    end, the sentence imposed must be faithful to the fundamental principle of
    proportionality: it must be proportionate not only to the gravity of the
    offence, but also to the degree of the offenders responsibility:
Ipeelee
,
    at para. 51.

The Principles Applied

[39]

Despite
    what both parties agree was an error in principle, I would not interfere with
    the sentence imposed by the trial judge.

[40]

Under
Ipeelee
, our task is to ensure that the sentence imposed is faithful
    to the fundamental principle of proportionality in s. 718.1 of the
Criminal
    Code
:
Ipeelee
, at para. 39. Compliance with our mandate requires
    a consideration of all the circumstances to ensure that the sentence imposed is
    proportional to both the gravity of the offence and the degree of
    responsibility of the offender:
Ipeelee
, at para. 39.

[41]

At
    first light, the appellants offence seems minor, almost trivial. He took a
    tiny pill, 2 milligrams of Dilaudid. He wasnt supposed to take pills unless
    they were prescribed by a doctor, or available over-the-counter and taken in
    accordance with the manufacturers directions.

[42]

The
    drug prohibition term of the LTSO was included because the appellant has a
    lengthy history of drug abuse. His lengthy history of drug abuse is
    inextricably interwoven with his equally lengthy history of crime, most of it
    violent offences against others. Management of the risk of re-offence, in this
    case the risk of violent recidivism, is linked to abstinence from drugs. Risk
    assessments have consistently identified drug abuse as a significant factor in
    the appellants uninterrupted string of violent crime. And so it is that taking
    that tiny pill is more serious than, shorn of context, it first appears.

[43]

An
    assessment of the degree of the appellants responsibility for the offence
    begins with an acknowledgement that he was the sole principal, not some
    secondary party. The offence involved non-compliance with a regulated scheme of
    conditional release. The appellant has a rich and lengthy history of
    non-compliance. Said in another way, the appellant does not do compliance
    well.  He simply doesnt get it.

[44]

This
    conviction is the appellants third for breach of his LTSO. He has violated the
    terms of his statutory release four times. He has a robust record of
    institutional offences. When granted release into the community at various
    times in 2006, 2007 and 2009, his conduct resulted in parole suspensions after
    only a few days or, at most, four months from the date of his release.

[45]

The
    appellants response to long-term supervision has been tepid, characterized by
    minimal effort, negligible motivation and spotty and superficial participation.

[46]

Of
    greater concern in the assessment of responsibility, is the appellants
    attitude towards rehabilitative programs. Despite many chances to participate
    in programs for violent offenders and drug abusers, the appellants history is
    littered with failures to attend, suspensions for inappropriate behaviour, and
    superficial responses. His attitude towards authority is consistently negative
    and he disagrees with the conditions of his release.

[47]

The
    trial judge was wrong in failing to recognize that rehabilitation was an
    appropriate sentencing objective to consider in determining a fit sentence for
    breach of the LTSO. But, as
Ipeelee
points out, rehabilitation is not
    always the foremost consideration in sentencing for LTSO breaches:
Ipeelee
,
    at para. 51.

[48]

Rehabilitation
    requires effort on an offenders part. It cannot be force fed to the unwilling.
    It ill lies in the mouth of the unwilling to complain that rehabilitation
    should have been accorded a prominent place in the sentencing decision,
    particularly where, as here, the offender complaining has been unswerving in
    his resistance to rehabilitative efforts for several years.

[49]

In
    my view, despite the conceded error, the sentence imposed was proportionate to
    the gravity of the offence and the degree of the appellants responsibility.

CONCLUSION

[50]

For
    these reasons, I would dismiss the appeal from conviction and grant leave, but
    dismiss the appeal from sentence.

Released: July 19, 2012  RGJ                           David
    Watt J.A.

I
    agree R.G. Juriansz J.A.

I agree Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Nettleton, 2012
    ONCA 521

DATE: 20120731

DOCKET: C50310

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Caleb Nettleton

Appellant

Alison Craig, for the appellant

Michael Bernstein, for the respondent

Heard: July 30, 2012

On appeal from the conviction entered on April 9, 2008
    and the sentence imposed on April 9, 2008 by Justice Charles H. Vaillancourt of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The trial record offers no basis upon which to doubt the validity of the
    plea.  The suggestion that the appellant suffered from some form of mental
    disorder that would benefit from treatment does not standing alone invalidate
    the plea.

[2]

The trial judge made the necessary inquiries to satisfy himself that the
    appellant had made an informed and voluntary choice to plead guilty for reasons
    that from the appellants perspective were justified.  The entirety of the
    record does not support the suggestion that the appellant equivocated in his plea.

[3]

We have considered the fresh evidence.  On the record as it finally
    stands on appeal, there is no affidavit from the appellant and no expert
    evidence to suggest that the mass of medical records could assist in
    determining the appellants state of mind when he chose to plead guilty.  Nor
    do references in police notes constitute evidence that the events referred to
    in the notes actually occurred.  The fresh evidence does not assist the
    appellant in demonstrating that the plea was not voluntary, informed or
    unequivocal.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Pickles, 2012
    ONCA 492

DATE: 20120710

DOCKET: C50508

Rosenberg, Sharpe and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Alfred Pickles

Appellant

Paul Stern, for the appellant

Marcy Henschel, for the respondent

Heard and endorsed: June 29, 2012

On appeal from the sentence imposed on April 28, 2009 by
    Justice J. Skowronski of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

On consent order to go in form of draft order.


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. Stone, 2012
    ONCA 500

DATE: 20120711

DOCKET: C52422

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Stone

Appellant

Kristin Bailey, for the appellant

Grace Choi, for the respondent

Heard and released orally: July 6, 2012

On appeal from the conviction entered on December 3, 2009
    and the sentence imposed on February 12, 2010 by Justice James R.H. Turnbull of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

On his conviction appeal, the appellant challenges various aspects of
    the trial judges charge and his failure to exclude certain evidence.  The
    appellant submits that the trial judge failed to properly instruct the jury on
    the identification evidence and failed to caution the jury on the recognition
    evidence of Officer Lazou.  He also submits that the trial judge erred by permitting
    inadmissible hearsay evidence to be introduced before the jury.

[2]

The appellant fairly acknowledges that his DNA evidence on the iced tea
    bottle and the glove implicate him in all of the offences other than the sexual
    assault.  However, he submits that the trial judges errors affected the
    conviction for sexual assault.

[3]

We do not accept this submission.  Even if the trial judge made any of
    the errors alleged by the appellant, a matter we need not decide, any errors
    were inconsequential not only on the robbery, break and enter, and related
    convictions, but also on the sexual assault conviction.

[4]

The basic position of the defence was that the home invasion was
    committed by Mitropoulos and Coates, not by Mitropoulos and the appellant.
    There was no suggestion that three people entered the victims home.  Yet the
    appellants DNA both on the iced tea bottle found in the house and, together
    with C.C.s DNA, on the glove, show that it was the appellant, not Coates, who
    entered the home along with Mitropoulos.

[5]

Both J.C. and C.C. identified the perpetrator of the sexual assault as
    the short and stockier of the two individuals in the home.  That individual
    could only have been the appellant.

[6]

Accordingly, the jurys finding of guilt on the charge of sexual assault
    is unimpeachable.

[7]

On the sentence appeal, we are satisfied that the sentence was within
    the range and fit.  The trial judge gave thorough reasons and we see no error
    in those reasons.

[8]

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

John Laskin J.A.

E.A. Cronk J.A.

Alexandra Hoy J.A.