COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jeanvenne, 2016 ONCA 101

DATE: 20160205

DOCKET: C57475

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

André Jeanvenne

Appellant

Ian R. Smith and Amy J. Ohler, for the appellant

Michael Bernstein, for the respondent

Heard: January 21, 2016

On appeal from the conviction entered on July 5, 2012 by
    Justice Colin D.A. McKinnon of the Superior Court of Justice, sitting with a
    jury.

Weiler J.A.:

A.

Overview

[1]

The police suspected that the appellant was involved in the unresolved
    murders of Donald Poulin in 1983, and Michel Richard in 2000. The RCMP set up a
    fictitious criminal organization, commonly known as a Mr. Big operation, in
    which an apparently successful crime boss hired the appellant, and, having
    obtained his trust, the appellant allegedly confessed to the two murders. In
    2005, a jury convicted the appellant of two counts of first-degree murder based
    on evidence from that operation.

[2]

This court set aside both convictions on the basis that the trial judge
    erred by failing to grant an application for severance of the two murder
    counts. The murders occurred 17 years apart, had no similarities and no
    forensic evidence linked the appellant to either murder. Having regard to the
    common sense proposition that because the accused may have committed one
    murder, a jury may have great difficulty in refraining from drawing the
    impermissible inference that he was likely to have committed the other, this
    court held severance ought to have been granted. Blair J.A., on behalf of the
    court, held that while one conversation the appellant had on November 22, 2002
    allegedly contained an admission to both murders, the evidence could have been
    given in separate trials with appropriate redactions to the other murder as may
    have been required:
R. v. Jeanvenne
, 2010 ONCA 706, 261 C.C.C. (3d)
    462,

at paras. 34 and 40.

[3]

At the appellants re-trial for the murder of Poulin, the jury was
    unable to reach a verdict resulting in a mistrial. The charge was later stayed
    by the Crown.

[4]

The appellants re-trial for the murder of Richard resulted in his
    conviction for first-degree murder again. During that trial, the jury heard
    evidence that the Mr. Big operation allegedly elicited an unrecorded bald
    admission to undercover officer S.G. that he murdered Richard. The appellant
    provided no details about how the murder was committed. Despite this courts
    implicit direction in
Jeanvenne
2010, the Crown also elicited evidence
    from S.G. that, in the same conversation, the appellant also allegedly made a
    bald admission to killing Poulin.

[5]

Subsequently, in
R. v Hart,
2014 SCC 52, [2014] 2 S.C.R. 544,
    the Supreme Court of Canada held that a confession obtained as a result of a
    Mr. Big operation is presumptively inadmissible. There is a real danger the
    individual wanting to join the organization may want to impress Mr. Big and
    falsely confess. Another danger is propensity reasoning from bad character
    evidence. The court placed the onus on the Crown to establish that the
    probative value of the confession, including its reliability, outweighs its
    prejudicial effect.

[6]

On this appeal, the appellant submits that none of the evidence obtained
    during the Mr. Big operation ought to have been admitted against him because
    its prejudice outweighed its probative value. In addition, the appellant raises
    various grounds of appeal all relating to the trial judges charge to the jury.
    Overall, the appellant submits that the charge was not balanced and fair.

[7]

I agree that the charge to the jury on motive and confirmatory evidence
    was deficient and that, overall, the charge was not balanced and fair.
    Accordingly, I would allow the appeal and order a new trial.

[8]

In view of my decision, it is unnecessary for me to consider the extent
    to which bad character evidence ought to have been permitted at trial and the
    trial judges charge to the jury as to the use they could make of it. However,
    in discussing the charge on motive and confirmatory evidence, I must deal with
    a discrete incident of bad character evidence that arose during the trial. In
    addition, I wish to express my disapprobation at the Crowns introduction of
    references to the Poulin murder during the appellants re-trial for the murder
    of Richard. The introduction of that evidence which had the effect of
    undermining this courts earlier implicit directive and the change in the legal
    framework governing the admissibility of evidence from a Mr. Big operation
    brought about by
Hart
fortifies my decision that a new trial is
    necessary.

B.

facts

(1)

Circumstances of the offence

[9]

Michel Richard was found dead in his apartment on May 17, 2000. There
    had been a violent struggle in the bedroom, but no signs of forced entry. The
    autopsy revealed that the cause of death was blood loss from two injuries: the
    severing of the aorta by a .32 calibre bullet and the severing of the right
    common carotid artery as a result of a stab wound to the lower jaw. The 18
    sharp force wounds to Richards head, neck chest, arms and back were not life-threatening
    and some were defensive wounds.

[10]

The
    deceased allegedly was known to keep a substantial quantity of drugs in his
    apartment. A small quantity of what appeared to be marijuana was found.

(2)

Evidence of the appellants criminal associates linking him to
    the
Richard murder

[11]

There
    was no direct evidence linking the appellant to the scene of the crime.

[12]

Denis
    Bruyère testified that he sold crack cocaine for the appellant and that late one night in May 2000 he had gone to the appellant's house to pick up drugs and had seen the appellant fumbling with a gun that he believed was a .32 calibre. The appellant was agitated and talked about "a score to settle." When he met the appellant the next day, the appellant told him not to call him on his cell phone because "there was a lot of heat". The following day, the appellant picked Bruyère up in his car and as they drove past Richard's apartment building, he said: "One my friends was killed there and they're going to come hound me for this" – that "every time someone got killed" the police would question him.

[13]

Charles
    Felteau, another criminal associate, testified that the appellant admitted to
    killing Richard to him. The appellant allegedly told Felteau that Richard had
    informed on the appellant by reporting his involvement in a break and enter,
    and a theft. After Richards death, the appellant told Felteau that he was glad
    Richard was dead  that he deserved what he got. He was a rat. The appellant
    told Felteau he had dumped Richard. Speaking more generally, the appellant
    said that when youre killing someoneyou should look them in the eyes and
    tell them why youre killing themdo it slowly so the person knows exactly why
    youre killing them. The appellant explained that he prefers small calibre
    handguns  .25 or .32  because they cause death slowly. He mentioned that a
    small calibre handgun was also a good way to demobilize somebody to do
    whatever else you wanted.

[14]

The
    jury also heard the testimony of Jean-Claude Massie given at the appellants
    first trial since he died before the appellants re-trial. Massie had testified
    in great detail about the appellants role in the break-in of Henry Amusements,
    the break-in about which Richard allegedly told the police. Massie testified
    that about five to six months before Richards death, the appellant had been
    going around saying Richard was an informer for the police.

(3)

The Mr. Big operation

[15]

About
    two years after Richards death, the RCMP began an undercover operation to
    extract confessions from the appellant regarding the deaths of Poulin and
    Richard. The appellant needed money when he started working for a Rod
    Calibria, who would become Mr. Big from a fictional criminal organization.
    He participated in many successful bonding scenarios with the Mr. Big
    organization over a lengthy period of time. The appellant said the police
    suspected him of two to three homicides including Richards murder. He said
    that Richard had ratted on the appellant and that shortly after that, he died.
    The appellant did not admit to any involvement in Richards death.

[16]

The
    appellant was introduced to Rob another criminal who had a problem,
    implying that he needed a witness to be killed. The appellant volunteered to do
    the job. During a recorded conversation, the appellant initially denied having
    experience killing people. After he was pressed, he conceded that he had
    whacked four people who had been close friends. He denied killing Richard.

[17]

The
    key aspect of the Mr. Big evidence was the appellants alleged confession to Officer
    S.G., who posed as a member of a closely related criminal organization. On
    November 22, 2002, while driving from Thunder Bay to Montreal, the appellant
    allegedly told S.G. that Richard had reported the appellants break and enter
    to the police and that the appellant had served time for it. According to S.G.,
    the appellant said that when he was sure Richard was the rat, Jy ai faite la
    passé. S.G. testified this meant the appellant had killed him. The appellant
    also said the police found the body toute décrisser but he was not worried
    because the police would have arrested him by now if they had anything. The
    conversation and the alleged confession were not recorded.

[18]

Days
    later, Calibria confronted the appellant and intimated that he knew the
    appellant had given names of persons he had killed to S.G. He wanted the names.
    For two hours, the appellant repeatedly denied ever giving a name to S.G. or
    killing Richard. He maintained that the last time he had killed anyone was over
    12.5 years ago. The appellant said that [he] said bullshit to make a name for
    himself. The appellant and Calibria agreed their relationship was over.

[19]

The
    investigation concluded with a staged kidnapping. Afterwards, S.G. asked the
    appellant about cleaning up his past. Again, the appellant refused to provide
    any information.

C.

discussion and analysis

(1)

References to the Poulin murder during the appellants trial

[20]

During
    the course of the appellants trial for the murder of Richard, the Crown led
    evidence that the appellant had confessed to the Poulin murder. The
    introduction of this evidence was no accident. When Crown counsel was examining
    S.G. in-chief about the November 22 conversation, the key conversation in the
    Mr. Big operation, S.G. testified that he said to the appellant you should
    have told me and Rod [Calibria] that there was heat on you for the murder of
    Michel Richard. The Crown then asked the following:

Q. And I understand you also include the other names in the
    conversation about the heat, correct?

A. The other name that he mentioned?

Q. Thats right.

A. Yeah, there was another name, Poulin.

[21]

The
    evidence that the appellant confessed to murdering another person, Poulin, as
    well as Richard, was not an essential part of the background narrative
    respecting the Mr. Big operation. Moreover, in ordering a new trial because
    there had been no severance, this court had effectively decided that its prejudice
    outweighed any probative value.

[22]

The
    appellant submits that the evidence respecting the Poulin murder was unduly
    prejudicial and could not be cured by the mid-trial instruction against
    propensity reasoning together with the judges charge to the jury on general
    bad character evidence, which in itself, is alleged to be deficient.

[23]

In
    response, during the hearing of this appeal, the respondent placed before the
    court a letter of agreement dated March 6, 2012, written by the trial Crown to
    defence counsel confirming a telephone conversation they had. The letter states
    in part:

During our conversation this morning you also indicated you
    would not oppose the Crowns application to lead evidence of discreditable
    conduct relating to your client. The discreditable conduct evidence that the
    Crown intends to lead was laid out in our Notice of Application. To be clear,
    the Crown intends to lead the following evidence;

1.       The 14 October 2002 statement containing confession
    to the murder of Donald Poulin.

2.       Mr. Jeanvennes involvement and participation in
    series of supposedly criminal acts, including payments received.

3.       Evidence relating to the Bouclair Fabric Store
    break in, including arrest of Rick Paradis (5 August 2002) and damaging night
    deposit at the Laurentian Bank (20 August 2002) and Mr. Felteaus evidence as
    it relates to the Bouclair Fabric store.

4.       Mr. Jeanvenne divulging information about his
    criminal background to;

a. [R.L.]

b. [R.J.]

c. [S.G.]

5.       The 29 November 2002 statement wherein Mr. Jeanvenne
    interweaves into his refusal to name Names with references to criminality.

The previous 5 points were the subject of a similar application
    prior to Mr. Jeanvennes trial on the killing of Donald Poulin.  On the date
    set to contest the Crowns application you conceded that items 2 through 5 were
    admissible in the first trial. Justice Lalonde [the judge presiding over the
    Poulin retrial] ultimately ruled that all of the discreditable conduct the
    Crown wished to lead was admissible.

6.       The evidence of Denis Bruyere

7.       The evidence of Charles Felteau

[24]

Mr.
    Smith, counsel for the appellant, who was not counsel at trial, advised the
    court that he was unaware of this letter until it was produced before us.

[25]

It
    is regrettable that the trial Crown sought to lead evidence of the Poulin
    murder. Although Lalonde J. ruled that all of the bad character evidence
    respecting the appellant was admissible, during the appellants trial for the
    Poulin murder no reference was made to the Richard murder.

[26]

Notwithstanding
    the Crowns letter, defence counsel may have been under the impression that,
    similarly, during the Richard trial no reference would be made to the Poulin
    murder. I say this because during the trial and in the absence of the jury,
    defence counsel objected to the Crowns gratuitous introduction of references
    to the Poulin murder on at least two occasions. Following this, in addition to
    the trial judges midtrial instructions on prejudice, some attempt was made to
    have the witnesses who were testifying limit their reference to extraneous bad
    character evidence.

[27]

On
    appeal, the Crown contends that the defence made a tactical decision to agree
    to the introduction of bad character evidence because the defence wanted to
    argue the appellants vulnerable circumstances led him to confess: he was
    desperate for money and his personality was such that he wished to portray
    himself as a capable criminal.

[28]

Any
    tactical decision of the defence was taken in light of the prior ruling of
    Lalonde J. with respect to the Poulin trial. Furthermore, no tactical advantage
    has been shown to the appellants alleged admission of the Poulin murder during
    this trial. Simply put, it was irrelevant and its likelihood to cause prejudice
    through propensity reasoning was high. Counsels purported agreement to the
    introduction of that evidence cannot be used to shield it from scrutiny.

[29]

While
    the Crown may have observed the letter of the courts direction, in that
    separate trials were held, the Crown did not observe the spirit and implicit
    direction given in
Jeanvenne
2010, aimed at ensuring the appellants
Charter
protected right to a fair trial. It is cause for great concern. With this
    background in mind, I now turn to the charge to the jury.

(2)

Fairness of the trial judges charge to the jury

[30]

Trial
    judges are faced with the difficult task of properly instructing a jury,
    especially in cases involving evidence with limited permissible use and other
    complicated issues of law. The law is well settled that an accused is entitled
    to a properly instructed jury, not a perfectly instructed jury:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para. 2. Although mistakes are bound to
    occur, there is no justification for a jury charge that is not even-handed, as
    it undermines an accuseds s. 11(d)
Charter
right to a fair trial:
R.
    v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at paras. 116-18.

[31]

This
    court has stressed the importance of a fair and balanced charge:
Baltovich
,
    at para. 118. Fairness requires, among other things, that the charge explain
    the theories of each side and review the salient facts in support of those
    theories:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 29.
    As noted by Taschereau J. in
Azoulay v. The Queen
, [1952] 2 S.C.R.
    495, at p. 498, a trial judge need not review every piece of evidence, but
    [t]he pivotal question upon which the defence stands must be clearly presented
    to the jurys mind.

[32]

So
    long as the substance of the defence position was put to the jury, a charge
    will not be unfair or unbalanced merely because the trial judge did not spend
    an equal amount of time reviewing the parties evidence:
R. v. Nelson
,
    2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 47.

[33]

An
    appellate court must consider the charge as a whole and its overall effect in
    reviewing a trial judges instructions:
Daley
, at para. 31.

(a)

The charge on motive was deficient

[34]

A
    key aspect of the Crowns case was that the appellants motive for killing
    Richard was that he was a rat who provided information about a break-in
    involving the appellant eight years before the murder.

[35]

Felteau
    testified that after Richards murder, the appellant obtained a piece of paper
    that had been given to the Childrens Aid Society indicating that Bruyère had
    told CAS about a gun. According to Felteau, the appellant was upset and said
    that Bruyère ought to be dumped, which he took to mean that Bruyère ought to
    be killed.

[36]

The
    defence sought to neutralize the evidence of motive and Felteaus evidence in
    its cross-examination of Bruyère. The defence succeeded in having Bruyère admit
    that when he had sought to work with the appellant again, the appellant called
    him a rat and simply told him he didnt want to work with him anymore. The
    appellant did not threaten to kill him and had taken no steps to harm him
    afterwards.

[37]

Following
    defence counsels cross-examination, the Crown led reply evidence that while
    Bruyère was giving evidence at the appellants preliminary inquiry the
    appellant made a gesture putting his hand to his own head as if he had a gun
    and said, Tes mort, meaning Youre dead. He repeated the same thing at
    trial as Bruyère passed by him after Bruyères testimony. Bruyère testified
    that the appellant also called him mon mangeux de merde, meaning a rat.

[38]

The
    Crown contends that the cross-examination by the defence opened the door to the
    evidence of the alleged threats to Bruyère being led in reply. A similar
    submission is made with respect to the evidence that during the preliminary
    inquiry the appellant also threatened Felteau.

[39]

No
    ruling was made with respect to whether the prejudicial effect of this bad
    character evidence outweighed its probative value.

[40]

Quite
    apart from the admissibility of this reply evidence, in his charge to the jury,
    the trial judge stated:

You will recall during the course of this trial that Mr. Jeanvenne
    made a threat to Mr. Bruyère, telling him, You are dead, you rat, in the
    French language, according to the evidence of Mr. Bruyère. Detective Monette
    overheard the threat as being, Dead. Eat shit. It is for you to decide what
    was said. Threats were also made to Mr. Felteau [sic] during the course of the
    preliminary inquiry. You may consider the evidence of these threats to
    determine whether you believe Mr. Jeanvenne has a strong distaste for those who
    implicate him in crimes.

[41]

In
    his overview of the parties positions, the trial judge again charged the jury
    as follows:

Crown counsel rely heavily on the evidence of the strong motive
    to kill Mr. Richard disclosed in the evidence; and the fact that Mr. Jeanvenne
    had a very low opinion of rats, which was even exhibited during the course of
    this trial with his threats to Mr. Bruyère.

[42]

The
    appellant submits that the trial judges charge to the jury contained only the
    inculpatory aspects and not the exculpatory aspect of the evidence respecting
    motive.

[43]

The
    Crown points out that defence counsel did not object to this aspect of the
    trial judges charge to the jury. The failure of counsel to object to the
    judges charge to the jury is, of course, a relevant consideration that may
    inform a court's conclusion on both the overall accuracy of an instruction and
    likely impact of the error. It is, however, only one consideration:
Jacquard
,
    at para. 38; see also
R. v. Arcangioli
, [1994] 1 S.C.R. 129;
R. v.
    Chambers
, [1990] 2 S.C.R. 1293.

[44]

I
    agree with defence counsels submission that in this case the trial judges
    instruction to the jury on motive was deficient in several respects and that
    this error was serious. The trial judge did not tell the jury they should
    consider Bruyères evidence that the appellant had simply refused to deal with
    him after calling him a rat and had not harmed him. Assuming, had a
voir
    dire
been held, that the evidence of the threats during the proceedings
    was admissible, he did not tell the jury what the permitted use of the evidence
    was, namely, so that the jury would have a complete picture with respect to
    motive. He did not caution the jury about the prohibited use of the reply
    evidence, namely, that propensity reasoning based solely on evidence of the
    threats made during the proceedings was prohibited.

[45]

He
    did not ask the jury to consider whether, if they were satisfied the appellant
    made the threats to Bruyère and Felteau during the proceedings, his threats
    were due to anger and indignation at being falsely accused of taking revenge on
    Richard. In this regard, I note that after the trial judge determined that the
    evidence should be admitted without a proper
voir dire
, at which the
    appellant would have testified, the appellant addressed the trial judge
    directly: He [Bruyère] knows  he knows how I am, he knows I get pissed off. Its
    not because Im guilty of the crime, its because I cant stand this piece of
    shit.

[46]

Overall,
    the trial judge did not put the defence position on motive to the jury.

(b)

The crime scene evidence cited as being confirmatory was not
    confirmatory; the crime scene evidence favorable to the defence was not
    mentioned.

[47]

The
    trial judge told the jury that Bruyère and Felteau benefitted from testifying
    against the appellant. Felteau was never charged with conspiracy to commit a
    robbery of the Second Cup at the Civic Hospital; Bruyère was indebted to the
    appellant in the amount of $7,500 when he made his statements to the police.
    (He omitted to say that Bruyère may also have had a reason to falsely accuse
    the appellant to regain custody of his daughter from the Childrens Aid
    Society.) He noted that the jury did not see Massie testify.

[48]

The
    trial judge also told the jurors that common sense required they look at the
    evidence of these witnesses with the greatest care and caution, that it was
    dangerous to rely on their evidence without confirmation.

[49]

The
    trial judge then suggested to the jury that the photographs from the crime
    scene were capable of confirming Felteaus evidence and instructed them as follows:

Mr. Felteau testified that in a conversation with Mr. Jeanvenne,
    Mr. Jeanvenne told him that if a person were to be murdered, the person must first
    be rendered defenceless. Then the person should be told very slowly why the
    person is being murdered, and then the person should be executed with a small
    calibre weapon so that death would come slower than with a larger calibre
    weapon.  If you believe that Mr. Jeanvenne made this statement to Mr. Felteau then
    you might conclude that the murder scene as depicted in the photographs
    tendered in evidence reflects this statement.

[50]

There
    was no evidence that the murder scene confirmed relevant portions of Felteaus
    testimony. The respondents oral submission that Richard was killed in the
    manner described by Felteau because he was shot at close range is speculation.
    The expert who testified about the crime scene gave evidence that Richard and
    the killer were engaged in a violent struggle which might explain why the
    shooting took place at close range. There was no evidence that Richard was
    immobilized or experienced a slow, painful death. Indeed, the expert evidence
    was that death would have been practically instantaneous from the stab wound to
    the carotid artery and bullet wound to the aorta. The expert could not say in
    which order the injuries were inflicted.

[51]

The
    respondents further submission that a correct charge respecting confirmatory
    evidence would not have benefitted the appellant is no answer in this case to
    the prejudice caused by the trial judges erroneous example of confirmatory
    evidence.

[52]

Moreover,
    the trial judge omitted to charge the jury regarding evidence from the crime
    scene that supported the defence position. The trial judge put to the jury the
    defence theory that Richard was killed as a result of a violent struggle during
    a robbery, possibly for drugs. However, he omitted to tell the jury that,
    according to the Crowns expert, the crime scene photographs were consistent
    with a violent struggle. Having regard to the evidence reviewed by the trial
    judge in favour of the Crowns position, the fact that the appellant did not
    testify and the paucity of evidence supporting the defence, it was all the more
    important that the trial judge give the jury what there was in order for the
    charge to be balanced and fair.

[53]

The
    appellant raises other issues with respect to the trial judges charge to the
    jury concerning the trial judges instructions on the use that could be made of
    the bad character evidence. However, given the seriousness of the errors above,
    I need not address the other grounds of appeal raised.

D.

Conclusion

[54]

I
    am of the opinion that a new trial is required having regard to the important
    role motive played in this trial and the trial judges deficient charge to the
    jury on motive in that he did not put the defence position regarding motive to
    the jury, his erroneous prejudicial example of confirmatory evidence and his
    omission to put to the jury relevant evidence that supported the defence
    position.

[55]

I
    would add that the evidence led of the appellants confession to the Poulin
    murder during this trial and the Supreme Courts decision in
Hart
only
    serve to reaffirm my conclusion that, overall, the appellants trial was not
    fair.

[56]

Accordingly,
    for the reasons I have given, I would allow the appeal and order a new trial.

Released: (K.M.W.) February 5, 2016

K.M. Weiler J.A.

I agree M. Tulloch
    J.A.

I agree David Brown
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Jupiter, 2016 ONCA 144

DATE: 20160222

DOCKET: C59226

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Isan Danjuma Jupiter

Respondent

Lisa Mathews, for the appellant

Elizabeth Bingham and Gary Grill, for the respondent

Heard and released orally:  February 18, 2016

On appeal from the acquittal entered by Justice Richards,
    of the Ontario Court of Justice, dated July 23, 2014.

ENDORSEMENT

[1]

We see no error in the trial judges analysis of the Crowns claim that
    the search of the bedroom could be justified as a safety search under the
    controlling jurisprudence.  In
R. v. MacDonald
, 2014 SCC 3, at para.
    43, the court explained the confines of a constitutionally permissible safety
    search:

it is only
when police officers have reasonable grounds
    to believe that there is an imminent threat to their safety
that it will
    be reasonably necessary to conduct such a search.  This limit guarantees that
    the lawful police power is not excessively broad.  In doing so, it ensures that
    the law itself is reasonable and can be reasonably delineated.  [Emphasis
    added.]

[2]

We see no need to refer to the evidence or the findings in any detail.
    We do note, however, that in this case, the officers had decided to conduct the
    safety search before they arrived at the hotel room and regardless of what
    happened when they entered the hotel room.  That predetermination by the
    officers, while not conclusive as to the propriety of the safety search, went a
    long way in support of the trial judges conclusion that the safety search
    could not be justified on the basis of a reasonable apprehension of imminent
    harm on entry of the apartment.

[3]

The Crown has not demonstrated any basis upon which we should interfere
    with the trial judges conclusion that the evidence should be excluded under s.
    24(2) of the
Charter
.  The trial judge did not make a finding that the
    search was made in good faith.  The laudable purpose of the broader
    investigation cannot be equated with a finding that the specific search was
    conducted in good faith.

[4]

The appeal is dismissed.

Doherty J.A.

E.A. Cronk J.A.

H.S.
    LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kamermans, 2016 ONCA 117

DATE: 20160209

DOCKET: C60752

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rob Kamermans and Mary Kamermans

Appellants

Paul Lewin, for the appellants

John Patton, for the respondent

Heard: February 2, 2016

On appeal from the judgment of Justice John M. Johnston
    of the Superior Court of Justice, dated June 26, 2015, granting certiorari and
    quashing the order of Justice Stephen J. Hunter of the Ontario Court of
    Justice, dated November 6, 2014, discharging the appellants, on several counts
    of forgery.

ENDORSEMENT

[1]

The appellants appeal from an order of a judge of the Superior Court of Justice
    quashing their discharge at the conclusion of a preliminary inquiry on several
    counts of forgery and remitting the case to the preliminary inquiry judge for
    consideration of the whole of the evidence including the essential elements of
    the offence of forgery.

The Background Facts

[2]

The appellants are husband and wife. The husband is a medical
    practitioner licensed to practise medicine in Ontario. The wife is a nurse.
    Together they operate a medical clinic in Coe Hill, Ontario.

[3]

The charges arise out of what is alleged to be an abuse of Health
    Canadas Medical Marijuana Licensing Scheme. The information upon which the
    appellants were jointly charged contained nearly a dozen counts including
    fraud, possession of the proceeds of crime and six counts of forgery one of
    which was withdrawn by the Crown.

[4]

At the end of the preliminary inquiry, the appellants were committed for
    trial on the fraud and possession of proceeds counts, as well as on a count of
    trafficking in a controlled substance as an other indictable offence in
    respect to the same transaction under s. 548(1)(a) of the
Criminal Code
.

[5]

The Crown alleged that the appellants operated a lucrative fraudulent
    scheme that involved the submission of forms required under the
Marijuana
    Medical Access Regulations
for patients who sought access to marijuana for
    medical purposes. The forms were submitted to Health Canada for approval. Each
    bore the signature of Dr. Kamermans.

[6]

The allegedly false declarations submitted to and relied upon by Health
    Canada fell into either of two categories.

[7]

One category involved declarations signed outside Ontario in clinics
    held by the appellants at various hotels in Nova Scotia, New Brunswick, Québec
    and British Columbia. There, for a fee, Dr. Kamermans would sign the Medical
    Practitioners Form even though he was not a medical practitioner in the
    province where he signed it. The inclusion of Dr. Kamermans Ontario address,
    the Crown argued, misled Health Canada about where the patients were seen.

[8]

The second category involved forms signed in Ontario where Dr. Kamermans
    was licensed to practise medicine. These forms, which required consultations
    with specialists to confirm the patients conditions, falsely claimed that such
    consultations had occurred.

The Discharge Decision

[9]

The essence of the reasons of the preliminary inquiry judge for
    discharging the appellants on the forgery counts appears in the following
    paragraphs of his reasons:

[20] Having viewed the documents, however, on their face, and
    the definition of forged within the meaning of Section 367, I have difficulty
    coming to the conclusion in law that the offence of forgery can be supported by
    the documents as presented.

[21] The essential elements that were indicated and the awkward
    wording of the declaration signed, apparently by Dr. Kamermans, do not appear,
    in my view, to meet the legal definition of forged.

[22] Both parties could be clearly committed on a charge or
    charges of fraud covering the timeframes and locations of the various
    extra-provincial clinics, and I am prepared to do so, but I would discharge
    them under the Section 367 offences as set out and enumerated in Counts 2
    through 6.

The Decision of the Reviewing Judge

[10]

In
    the Superior Court of Justice, the reviewing judge concluded that the Crown had
    established jurisdictional error on the basis that the preliminary inquiry
    judge had failed to consider the whole of the evidence adduced at the inquiry
    against the essential elements of the offence of forgery.

[11]

The
    final three paragraphs of the reviewing judges reasons explain why he reached
    this conclusion about jurisdictional error:

[23] There is a lack of discussion within the Reasons for
    refusal to commit under
Section 366
of the
Criminal Code
by the
    Preliminary Inquiry Justice. The Justice states that having reviewed the
    definition of
forged within the meaning of Section 367 I have difficulty
    coming to the conclusion in law that the offence of forgery can be supported by
    the documents as presented
.  The failure to identify the description of
    false document and the Crown argument about
Section 321(b)
of the
Criminal
    Code of Canada
inescapably leads to the conclusion that the Preliminary
    Inquiry Justice did not assess the whole of the evidence against the correct
    elements of the offence of forgery. It is not clear from the Justices reasons
    if he did consider the elements of Section 321(b). Had the Justice considered
    the elements argued by the Crown, I find it is possible he may have reached a
    different conclusion.

[24] On a Certiorari Application this Court cannot impose its
    opinion as to whether or not the test for committal at the Preliminary Inquiry
    stage has been met.  However, in circumstances where the Preliminary Inquiry
    Justice fails to assess the whole of the evidence against the correct elements
    of the offence, jurisdictional error is completed.

[25] I find that there is no evidence that the Preliminary
    Inquiry Justice conducted the assessment required. Justices are not required to
    address every legal argument raised by counsel. Jurisdictional error occurs in circumstances
    such as this case, where there is an absence of reasons in where there is a
    real question as to whether the facts and law were properly applied. A
    reviewing court cannot be satisfied the requisite mandatory review was
    undertaken here. Accordingly, the dismissal on Counts 2 to 6 is quashed.  The
    matter is remitted to the Ontario Court of Justice and the Preliminary Inquiry
    Judge for consideration on the whole of the evidence including the elements of
    the offence of forgery as particularized in
Section 321(b)
the
Criminal
    Code of Canada
. [Emphasis added.]

The Governing Principles

[12]

Certiorari
is one of several remedies by which the superior court of criminal jurisdiction
    ensures that courts of limited jurisdiction remain within their jurisdictional
    limits. Part XVIII of the
Criminal Code
defines the jurisdiction of a
    judge or justice at a preliminary inquiry. A preliminary judge who fails to
    meet the statutory obligations imposed by Part XVIII of the
Criminal Code
acts
    in excess of his or her jurisdiction and risks intervention by the reviewing
    court:
R. v. DesChamplain
, 2004 SCC 76, [2004] 3 S.C.R. 601, at para.
    1.

[13]

It
    is well-settled that
certiorari
is available to quash both committals
    and discharges ordered at the conclusion of a preliminary inquiry. The scope of
    review is very limited. The same rule  jurisdictional error  governs whether the
    Crown seeks to quash a discharge or a person charged challenges committal:
R.
    v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 27-28;
R. v.
    Dubois
, [1986] 1 S.C.R. 366, at p. 374.

[14]

Jurisdictional
    error may be shown where the preliminary inquiry judge has failed to test the
    evidence adduced at the inquiry against the essential elements of the offences
    charged:
Dubois
, at pp. 378-379;
R. v. Sazant
, 2004 SCC 77,
    [2004] 3 S.C.R. 635, at para. 25. It is perhaps unnecessary to add that the
    essential elements against which the preliminary inquiry judge tests the whole
    of the evidence must accurately reflect the legal requirements Parliament has
    prescribed:
Sazant
, at para. 25;
Russell
, at para. 28

[15]

Jurisdictional
    error may also be established if it can be shown that a preliminary inquiry
    judge preferred an inference favourable to an accused to an inference, also
    available on the evidence, favourable to the Crown:
Sazant
, at para.
    25. The limited weighing of circumstantial evidence in which a preliminary inquiry
    judge may engage does not involve drawing inferences, assessing credibility or
    considering the inherent reliability of evidence:
R. v. Arcuri
, 2001
    SCC 54, [2001] 2 S.C.R. 828, at paras. 23 and 30.

[16]

Jurisdictional
    error may also be demonstrated where the preliminary inquiry judge has failed
    to consider the whole of the evidence adduced at the inquiry in reaching his
    or her conclusion about committal or discharge:
Sazant
, at para. 25.

The Principles Applied

[17]

We
    are not persuaded that the reviewing judge erred in concluding that the
    preliminary inquiry judge committed jurisdictional error in discharging the
    appellants on the forgery counts. In our respectful view, the jurisdictional
    errors were three-fold.

[18]

First,
    as a result of his failure to properly define the essential elements of
    forgery, the preliminary inquiry judge concluded that there was no evidence
    that the appellants had made a false document in completing the various
    Medical Practitioners Forms in a province in which Dr. Kamermans was not
    authorized to practise medicine. This amounted to a failure to test the
    evidence adduced against the actual elements of forgery. To proceed in such a
    manner constitutes jurisdictional error:
Sazant
, at para. 25.

[19]

Second,
    the preliminary inquiry judge failed to consider the whole of the evidence
    adduced in reaching his conclusion to discharge the appellants. His focus was
    on a textual analysis of the Medical Practitioners Form, not the evidence
    adduced on the inquiry.

[20]

Third,
    in resting his conclusion to discharge the appellants in part at least because
    of a difficulty in drawing the inferences proposed by the Crown, the
    preliminary inquiry judge exceeded his jurisdiction. Whether an inference is
    easy, hard or difficult to draw is of no moment to a decision on committal.
    Provided the inferences advanced by the Crown are within the field of available
    inferences and provide evidence of each essential element of the offence,
    committal follows.

Conclusion

[21]

For
    these reasons, the appeal is dismissed.

E.E. Gillese J.A.

David
    Watt J.A.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Labelle, 2016 ONCA 110

DATE: 20160208

DOCKET: C58138

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Larry Labelle

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Brian G. Puddington and Zoe Oxaal, for the respondent

Heard: January 26, 2016

On appeal from the convictions entered on April 19, 2013
    and the sentence imposed on July 12, 2013 by Justice Giovanna Toscano Roccamo
    of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, possession of marihuana for the purpose of trafficking, and two counts
    of possession of the proceeds of crime under $5,000. He was sentenced to three
    and one-half years imprisonment and a two-year period of probation. He appeals
    his convictions and seeks leave to appeal sentence.

[2]

The appellants arrest was part of a broader
    investigation undertaken by the Ottawa Police Services Drug Unit (OPSDU) as a
    consequence of information received from confidential informants that Yianni
    Papadolias was a high-level drug dealer. The OPSDU conducted a lengthy
    investigation that included surveillance of Mr. Papadolias. He was observed
    making frequent visits to a condominium building in Ottawa. Mr. Papadolias
    employee, Merith White, resided in a unit of that building.

[3]

In December 2010 and January 2011 the
    OPSDU entered the condominium building on three separate occasions without a
    warrant and without permission from building management or any condominium unit
    owner. On the third occasion, on January 21, 2011, an officer observed Mr.
    Papadolias enter Mr. Whites unit and, while positioned in a stairwell, the
    officer heard conversations about an impending drug transaction. The officer
    also noted hearing sounds from within the apartment, which he believed to be
    from the use of packing tape. He then observed Mr. Papadolias exit the unit carrying
    a white and blue box and go down the stairs. These observations were reported by
    radio to the OPSDU team.

[4]

When Mr. Papadolias exited the
    condominium building, an OPSDU surveillance team observed him place the white
    and blue box in his vehicle and drive away. The surveillance team followed Mr.
    Papadolias to the parking lot of a nearby mall where he parked his vehicle,
    remaining in the drivers seat. The appellant approached Mr. Papadolias
    vehicle carrying a yellow plastic bag and entered the front passenger seat.
    Seven minutes later, the appellant exited the vehicle without the yellow
    plastic bag. The appellant moved to the back of the vehicle, opened the hatch,
    and removed the white and blue box that Mr. Papadolias had brought from the
    condominium building. The appellant carried the white and blue box to a nearby
    van, entered the van, and drove away.

[5]

The OPSDU arranged for the O.P.P. to
    stop the van and arrest the appellant for possession for the purposes of
    trafficking. The O.P.P. made the arrest and found the blue and white box in the
    van, which contained approximately 2.6kg of marihuana and 166g of cocaine.

[6]

Following the arrest of the appellant,
    the OPSDU arrested Mr. Papadolias and Mr. White. They obtained a search warrant
    for Mr. Whites condominium unit and found 1.7kg of cocaine and 7kg of marihuana
    in the apartment.

[7]

During Mr. Whites trial, Justice
    Lalonde found that Mr. Whites s. 8
Charter
rights had been violated and excluded all evidence
    gathered in the condominium building during the OPSDUs entries. This court
    upheld that decision: see
R. v. White
,
    2013 ONSC 1823, 281 C.R.R. (2d) 329, affd 2015 ONCA 508, 127 O.R. (3d) 32.

[8]

At trial in the present case, the
    appellant brought an unsuccessful
Charter
application to exclude the evidence found in the blue and
    white box
, or in the alternative, stay
    the proceedings as an abuse of process. Defence counsel and Crown counsel
    agreed that they would be bound by Justice Lalondes findings in
White
and that all evidence gathered during the
OPSDUs
three entries
    into the condominium would be excluded.

[9]

The appellant advances two primary
    arguments on appeal. First, he submits that when the impugned evidence obtained
    from the observations made inside the condominium building is excluded, the
    police did not have reasonable and probable grounds to arrest him. Because the
    arrest was illegal, the search incident to arrest was also illegal. Second, the
    appellant submits that if there were insufficient evidence independent of the
    impugned evidence to establish reasonable and probable grounds, it would be an
    abuse of process to rely upon that impugned evidence to establish reasonable
    and probable grounds. Instead, that evidence should be excluded from the
    analysis pursuant to s. 24(1) of the
Charter
.

[10]

With respect to the appellants first
    argument, we do not accept the submission that the police lacked reasonable and
    probable grounds for the arrest independent of the evidence illegally obtained
    at the condominium building. When considering the objective reasonableness of
    the subjective grounds for arrest, a court must look to the totality of the
    circumstances, and it is not appropriate to consider each fact in isolation: see
R. v. Lawes
, 2007 ONCA 10, 72 W.C.B.
    (2d) 487, at para. 4;
R. v. Italiano
,
    2015 ONCA 179, 120 W.C.B. (2d) 19, at para. 8.

[11]

We agree with the trial judges
    conclusion that, even after excluding the information gathered during the
    entries into the condominium building, the combined information from the
    informants, the totality of the investigation of Mr. Papadolias (minus the
    entries into the condominium building), the OPSDUs collective observations of
    the appellants vehicle and location, and the interaction between Mr.
    Papadolias and the appellant, were enough to satisfy both the subjective and
    objective components of the test for reasonable and probable grounds for
    arrest.

[12]

The appellants second argument is
    premised on a finding that there was insufficient evidence independent of the
    impugned evidence to establish reasonable and probable grounds. Given our
    conclusion above, it is unnecessary to consider this argument.

[13]

The Crown conceded that the sentence is
    illegal pursuant to s. 731(1)(b) of the
Criminal Code
and that the probation order must be quashed.

[14]

The conviction appeal is dismissed. Leave
    to appeal sentence is granted and the probation order is quashed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapps, 2016 ONCA 142

DATE: 20160223

DOCKET: C59288

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Lapps

Appellant

Daniel C. Santoro, for the appellant

Roger A. Pinnock, for the respondent

Heard: February 18, 2016

On appeal from the convictions entered by Justice E. Ewaschuk
    of the Superior Court of Justice, sitting with a jury, dated October 14, 2013.

By the Court:

[1]

The appellant was charged with possession of cocaine for the purpose of
    trafficking, importing and trafficking cocaine.  His first trial by judge and
    jury ended in a mistrial when the jury could not arrive at a verdict.  The
    Crown re-prosecuted, again before a judge and jury.  At the second trial, the
    jury convicted the appellant on the possession and importing charges but failed
    to arrive at a verdict on the trafficking charge.  The appellant was sentenced
    to eight years' imprisonment.

[2]

The appellant appeals against his convictions.  His main ground of
    appeal is that the trial judge fatally erred by failing to correctly and
    comprehensively respond to a critical question from the jury, at a time when
    the jury was clearly struggling in its deliberations.  This error, the
    appellant says, invited unreasonable verdicts and gave rise to the real risk
    that, without proper assistance from the trial judge, the jury would engage in
    impermissible compromise regarding its verdicts.

[3]

In the particular circumstances of this case, we agree that the trial
    judges incomplete and unhelpful response to the jurys question compromised
    trial fairness and may well have led to unsafe verdicts.  As a result, the
    convictions cannot stand.

[4]

It was the Crowns theory at trial that the appellant, a cross-border
    truck driver, had hidden cocaine in his commercial vehicle while in the United
    States, imported it into Canada in his vehicle, and provided it to his friend
    Kenneth Jackson, a known drug dealer, shortly after returning to Canada at a
    direct, person-to-person meeting between the appellant and Mr. Jackson
    conducted at an industrial complex.

[5]

The appellant denied that he had ever been in possession of the cocaine
    or that he had transferred, given or delivered any cocaine to Mr. Jackson.  He
    maintained that the police officers who claimed to have seen him give a teal
    bag to Mr. Jackson were not telling the truth, that police surveillance
    evidence was fabricated, and that customs officials had falsified their records
    regarding the appellants movements in his vehicle.

[6]

In this context, three aspects of the trial judges jury charge are
    particularly relevant.

[7]

First, early in his charge, the trial judge addressed what he described
    as contradictory evidence.  He pointed out that there was contradictory
    evidence as to whether the appellant had possession of a teal bag containing
    cocaine which he handed over to Kenneth Jackson at the industrial complex.
    The trial judge then explained the requirements of
R. v. W.(D.)
,
    [1991] I SCR 742.  In so doing, he repeatedly described the evidentiary
    conflict on this question as the essential matter for the jurys
    determination.

[8]

Shortly thereafter, the trial judge stated:

THE KEY ISSUE

It seems to me that the key factual issue in this case is whether
    the Crown has proven beyond a reasonable doubt that the accused, Dale Lapps,
    transferred cocaine to Kenneth Jackson at the industrial complex.

If so satisfied, you should have little difficulty in
    convicting the accused, Dale Lapps, of all three charges he faces.

However, if not so satisfied, you must acquit the accused of
    all three charges.

[9]

The trial judge returned to this theme in his charge, for a third time,
    when describing the appropriate approach for the jurys consideration of the
    case.  At this point, the trial judge again said:

It seems to me that, as I have already stated, that the key
    factual issue in this case is whether the accused, Dale Lapps, physically
    delivered the cocaine to Kenneth Jackson at the industrial complex.

[10]

The
    trial judge then added:

In determining that issue, you must assess all of the evidence,
    including the wiretaps, the numerous references to Uncle on the wiretaps, the
    surveillance evidence, the customs documents and the accused Lapps own
    testimony.

Assuming you find as fact beyond a reasonable doubt that the
    accused Lapps handed over the cocaine to Kenneth Jackson at the industrial
    complex, you should have little difficulty in convicting the accused Lapps of
    all three charges before the court.

However, if you have a reasonable doubt as to whether the
    accused Lapps handed Kenneth Jackson the cocaine, you should acquit the
    accused, Lapps, outright of all three charges before the Court.

[11]

Thus,
    at three different points in his charge, the trial judge identified a key or
    essential factual issue for determination by the jury  whether the appellant
    handed or transferred cocaine to Mr. Jackson  and explained the legal
    consequences of an affirmative finding that the hand-off or transfer had
    occurred.  The case therefore went to the jury on the basis that the pivotal
    issue was whether the appellant had transferred the cocaine to Mr. Jackson when
    they met at the industrial complex.  The jury was told expressly that if it had
    a reasonable doubt on this essential matter, that is, unless they were
    satisfied that the appellant made the transfer of the cocaine, it should acquit
    the appellant of all charges.

[12]

Neither
    the Crown nor the defence objected to these instructions.  Indeed, these
    instructions were entirely consistent with the way the Crown ran the case.

[13]

The
    jury deliberated for three days without reaching any verdicts.  At about noon
    on the third day, it asked the following question:

If we find [the appellant] guilty of importing the cocaine,
    must we find him guilty of trafficking?

[14]

The
    trial judge canvassed an appropriate response to this question with both
    counsel.  In so doing, he said: The answer is no, obviously, right?  They are
    entitled to take different views of the evidence.

[15]

Both
    counsel agreed.  However, defence counsel did express concern that the jurors
    were under pressure and that, as a result, they may start making compromises
    that really dont reflect how they truly feel about the evidence.

[16]

The
    jury was then recalled and instructed as follows:

THE COURT:        Thank you, Exhibit H: If we find Lapps
    guilty of importing the cocaine, must we find him guilty of trafficking?  The
    answer to your question is no.  You are entitled to take different views of
    the evidence so that you may convict the accused on one charge but not on the
    other charge.

[17]

The
    effect of this response was to tell the jury, for the first time, that the
    evidence could support different verdicts on the importing and trafficking
    charges.  This directly conflicted with the trial judges earlier repeated
    instructions regarding the central issue in the case, and the legal
    consequences that would flow from the jurys determination of that issue.

[18]

The
    trial judge provided no elaboration  nor any guidance to the jury on this
    alternate and late-breaking theory of the case.  Nor did he relate it to the
    evidence or the parties positions at trial.  The trial judge also failed to
    caution the jury against engaging in impermissible verdict compromise based on
    expediency, frustration or a desire to simply resolve the case and complete
    their deliberations.

[19]

As
    we have said, the suggestion that the jury could return different verdicts on
    the importing and trafficking charges was put to the jury mid-day on the third
    day of its deliberations.  Jury deliberations continued for another day.  At
    about noon on the fourth day, the jury returned verdicts of guilty on the
    possession and importing charges.  It was unable to reach a verdict on the
    trafficking charge.

[20]

In
    the circumstances of this case, it was dangerous and inappropriate to leave the
    jury entirely adrift to assess alternate and conflicting bases of culpability
    on its own, without any reference to the evidence and the positions of the
    parties.  Of particular concern, the trial judge failed to provide any explanation
    to the jury for the conflict between his earlier instructions, described above,
    and his response to their query concerning the importing and trafficking
    charges.

[21]

There
    is a strong argument on this record that the evidence at trial did not support
    a finding of guilt on the importing charge without a finding of guilt on the
    trafficking charge.  Even if some evidentiary basis for disparate verdicts on
    these charges could be teased from the trial record, it was incumbent on the
    trial judge to provide the jury with assistance on the evidence bearing on each
    charge.  This was especially so where, as here, the jury was clearly struggling
    with the concept of reasonable doubt and appeared to be deadlocked on the
    trafficking charge.

[22]

On
    this ground alone, we conclude that the appeal must be allowed.  It is
    therefore unnecessary to address the appellants other grounds of appeal.

[23]

For
    the reasons given, the appeal is allowed and a new trial is ordered.

Released:

FEB 23 2016                                              Doherty
    J.A.

DD                                                            E.A.
    Cronk J.A.

H.S.
    LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McFarlane, 2016 ONCA 158

DATE: 20160226

DOCKET: C59243

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karlie McFarlane

Appellant

Mark Halfyard, for the appellant

Lucas Price, for the respondent

Heard and released orally: February 23, 2016

On appeal from the conviction entered on July 31, 2014 by
    Justice J.R. Chaffe of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions following a trial in the Ontario
    Court of Justice for possession of cocaine for the purpose of trafficking,
    possession of ammunition without a license, and possession of proceeds of crime
    over $5000. He raises two grounds of appeal.

(1)

Unreasonable Verdict

[2]

The evidence against the appellant was entirely circumstantial. The
    appellant submits that the convictions were unreasonable and that the evidence
    led by the Crown was insufficient to establish his possession of the drugs and
    ammunition in a storage locker or the money found in one of the bedrooms of the
    condominium apartment he frequented.

[3]

We disagree. In our view, there was compelling evidence establishing
    that the appellant was the occupant of the bedroom in which a very substantial
    quantity of cash was hidden in several shoe boxes under the bed. The appellant
    was seen on a regular basis in and around the condominium building and his
    passport and other personal documents were found in the bedroom. The
    appellants drivers license was found in a jacket in the hall of the condominium.

[4]

The appellant was carrying a large folded bundle of Canadian currency on
    his person when he was arrested at the time of the execution of the search
    warrant.

[5]

There was a significant body of evidence from which it could be inferred
    that the appellant and his co-accused, the owner and other occupant of the
    apartment, were involved in trafficking drugs from the apartment. In addition
    to the large quantity of cash found on the appellant and in the bedroom he
    occupied, surveillance evidence revealed many meetings of short term duration
    involving either the appellant or the co-accused and other individuals that followed
    a pattern typical of drug transactions.

[6]

The key to the storage locker containing a significant quantity of
    cocaine and the ammunition was found on a ring with another key to another
    storage locker assigned to the apartment. The key ring was found in plain view
    on the kitchen counter of the apartment. Surveillance evidence indicated that
    the appellant had gone to the basement of the building in the direction of the
    storage locker in which the drugs and ammunition were found on three or four
    occasions. The trial judge was entitled to find that the presence of digital
    scales in the kitchen added something to the overall thrust of the evidence,
    namely, that the apartment occupied by the appellant was being used as a place
    from which drugs were being dealt.

[7]

Neither the appellant nor his co-accused testified.

[8]

In our view, it was open to a reasonable trier of fact, properly
    instructed and acting judicially, to convict on this evidence. When this
    evidence is considered as a whole, it was capable of supporting the trial
    judges finding that the crown had proved beyond a reasonable doubt that the only
    reasonable inference was that appellant had possession and control of the cash,
    drugs, and ammunition

(2)

R. v. Bui
error

The appellant also argues that the trial judge erred in
    his assessment of the circumstantial evidence by falling into the error
    identified by this court in
R. v. Bui
2014 ONCA 614. In that case, the trial judge stated in his reasons:

There are no proven facts upon which I can infer that some
    imagined person other than the accused, controlled the marijuana grow operation
    in the accuseds house without the accuseds knowledge.

[9]

As this court explained at para. 24, the error made by the trial judge
    in that case was in holding that, when assessing circumstantial evidence,
    conclusions alternative to the guilt of the accused must arise from proven
    facts.

[10]

The
    trial judge in this case did not make that error when he stated that the issue
    for him was whether the Crown has proven the accuseds guilt is the only reasonable
    inference to be drawn from proven facts. He went on to find that the evidence
    as a whole proves possession of the illicit contents of the locker 229 by the
    two accused is the only reasonable inference from these proven facts. These
    statements refer to the burden on the Crown and whether, when the evidence was
    considered as a whole, the Crown had met that burden. At no point did the trial
    judge make the error identified in
R. v. Bui
, namely, that the accused
    could only rely on inferences arising from proven facts in order to avoid
    conviction.

[11]

For
    these reasons, the appeal is dismissed.

Robert J. Sharpe J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGill, 2016 ONCA 139

DATE: 20160222

DOCKET: C60340

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Terrance McGill

Respondent

Benita Wassenaar, for the appellant

Frances Brennan, for the respondent

Heard: February 5, 2016

On appeal from the sentence imposed on March 20, 2015 by
Justice Johanne N. Morissette of the Superior Court of Justice, sitting with a
jury.

ENDORSEMENT

[1]

This is a Crown appeal against sentence.

Background in Brief

[2]

Terrance McGill (the respondent) was a mortgage broker, operating a
mortgage business called TA McGill Mortgage Services Inc. in Sarnia, Ontario. Beginning
in August 2005 and for several years thereafter, he participated in a Ponzi
scheme. Investments in the scheme totalled $3,418,550 Canadian and $250,000
U.S. With the possible exception of $200,000, the funds were not used for
investment purposes.

[3]

John Paul Baron was the mastermind behind the scheme. He orchestrated it
and took the primary benefit of it. He attracted and advised the first two
investors, Lucio Sandrin and Ross Montagano. Sandrin and Montagano were the
only victims who paid money directly to Baron.

[4]

The respondents reputation in the community enabled him to recruit a
large number of investors into the scheme. They were told that they could
earn high interest rates by investing in a company called Forex Baron. The
monies obtained were transferred between accounts controlled by the respondent,
the respondents wife and Baron. The victims received interest payments to
sustain the ruse.  Although the extent of the respondents gain is unclear, at
a minimum he earned fees on mortgages that several victims took out in order to
fund their investments.

[5]

The scheme collapsed in June 2007 and payments to the victims ceased.
They received a letter dated June 20, 2007 from Baron saying payments were
being postponed because funds had been frozen overseas. The respondent and Baron
met with the victims at a Holiday Inn and required them to hand in their
original documents and sign new agreements. Various letters and emails were
sent to the victims in an effort to keep them quiet.

[6]

In April 2009, the respondent wrote to the victims urging them to sue
Forex Baron and James Johnson, a bogus investment manager. Even after the
collapse, funds were obtained from additional victims.

[7]

The offences have had a significant impact on the lives of the 22
victims.

Several lost their homes. Some
have declared bankruptcy and others have had their retirement years ruined.

[8]

The respondent was charged with 28 counts of fraud over $5,000. He was
acquitted on the three counts that related to Sandrin and Montagano and
convicted of the remaining 25 counts.

[9]

The sentencing judge found that the respondent entered into the scheme
for pure greed, that he aided and abetted by covering up the fraudulent
scheme, and that the offences have had a horribly devastating impact on the
lives of the many victims and their families. She also noted that the offences
were very serious and a breach of trust.

[10]

The
sentencing judge described the respondent as being a victim of Baron and
imposed a 23-month conditional sentence. She also made restitution orders
totaling over $2 million.

[11]

The
respondent has served ten and a half months of the conditional sentence.

[12]

The
Crown seeks leave to appeal against sentence. It submits that the sentencing
judge erred in principle and that the sentence imposed was demonstrably unfit.
It asks for the imposition of a penitentiary sentence in the range of four to
five years.

ANALYSIS

[13]

In
our view, the sentencing judge erred in principle, that error had an impact on
the sentence imposed and the sentence is demonstrably unfit.

[14]

The
sentencing judge erred in principle in characterizing the respondent as a
victim. That characterization is inconsistent with the jurys verdict. In
convicting the respondent on 25 of 28 counts, it is implicit that the jury
rejected the respondents evidence that he thought the investments were
legitimate.

[15]

In
holding that the 23-month conditional sentence is demonstrably unfit, we echo
the comments of this court in
R. v. Dobis
(2002), 58 O.R. (3d) 536, at
para. 42:

There is a real need to emphasize denunciation and, especially,
general deterrence in the realm of large-scale frauds committed by persons in
positions of trust with devastating consequences for their victims, which is
how I would characterize the offences in this case.

[16]

Given
the size of the fraud, the lengthy time period over which it took place, the
motivation of greed, the breach of trust, the number of victims, and the
devastating impact on those victims, a penitentiary sentence was required.  Baron
was sentenced to six years in prison for his role in these offences. It was
Baron who instigated the scheme and took the majority of the benefits from it. Given
the respondents lesser degree of culpability, in our view, a fit sentence is
four years imprisonment.

DISPOSITION

[17]

For
these reasons, leave to appeal sentence is granted, the appeal is allowed and the
sentence imposed at trial is varied to a term of four years imprisonment in a
federal penitentiary, less credit on a one to one basis for the ten and a half
months that the respondent has served of his conditional sentence.  The
respondent shall have forty-eight hours from the release of this endorsement
and the order that gives effect to it, to surrender into custody, failing which
a warrant shall issue for his apprehension.

E.E. Gillese J.A.

David
Watt J.A.

M.
Tulloch J.A.