COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Igenu, 2019 ONCA 429

DATE: 20190522

DOCKET: C63371

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jeremiah Igenu

Respondent

Bradley Reitz, for the appellant

No one appearing, for the respondent

Heard: May 17, 2019

On appeal from the acquittal
    entered by Justice D. McLeod of the Ontario Court of Justice, dated January 27,
    2017.

APPEAL BOOK ENDORSEMENT

[1]

The respondent has been served with the Notice of Appeal, but nothing
    else. As far as the Crown knows, he is unaware of todays date. The Crown has
    made unsuccessful efforts to locate the respondent. Crown counsel does not ask
    the court to proceed with the appeal in the absence of the respondent. He asks
    that the hearing be adjourned to allow further efforts to locate the
    respondent, although he acknowledges that he has no reason to think those
    efforts will bear fruit.

[2]

The appeal is almost 2½ years old. Although we were prepared to deal
    with the appeal today, we are willing to accede to the Crowns request to
    adjourn this to September 4, 2019. If the respondent does not appear, the Crown
    must be prepared, subject to the order of the court, to either argue the merits
    or request that the appeal be dismissed as abandoned.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to
    this section, no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2) Subsection (1) does not
    apply

(a) in a
    case where the information relates to a young person who has received an adult
    sentence;

(b) in a
    case where the information relates to a young person who has received a youth
    sentence for a violent offence and the youth justice court has ordered a
    lifting of the publication ban under subsection 75(2); and

(c) in a
    case where the publication of information is made in the course of the
    administration of justice, if it is not the purpose of the publication to make
    the information known in the community.

(3) A young person referred
    to in subsection (1) may, after he or she attains the age of eighteen years,
    publish or cause to be published information that would identify him or her as
    having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

111(1)          Subject to
    this section, no person shall publish the name of a child or young person, or
    any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every person
    who contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b) is guilty of an
    offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.F., 2019 ONCA 432

DATE: 20190530

DOCKET: C59907

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.F.

Appellant

Dean Embry, for the appellant

Jennifer Epstein, for the respondent

Heard: January 28, 2019

On appeal from the verdict of not criminally responsible
    on account of mental disorder entered by Justice Sharon M. Nicklas of the
    Ontario Court of Justice, dated June 25, 2010.

Lauwers
    J.A.:

[1]

On June 7, 2010, the appellant, J.F., was found guilty of three counts
    of uttering a threat, one count of arson, one count of failing to comply with a
    recognizance and one count of possession of a weapon for a dangerous purpose.
    On June 25, 2010, he was found not criminally responsible on account of a
    mental disorder (NCR). J.F. was later ordered detained after a hearing before
    the Ontario Review Board and since has remained subject to a detention order.

[2]

J.F. asserts that his guilty pleas were invalid and appeals against the
    findings of guilt on the basis that he received ineffective assistance of
    counsel, which resulted in a miscarriage of justice. J.F. seeks to have the
    guilty pleas struck and a new trial ordered. He also seeks to have the NCR verdict
    set aside on the basis that it was unreasonable.

[3]

J.F. makes several arguments in the context of the fact, acknowledged by
    trial counsel, that J.F. did not want his mental health to be put in issue and so
    instructed counsel.

[4]

First, the process that led to J.F.s current disposition was not just
    and fair because of the unusual role played by trial counsel, a well
    experienced and competent criminal lawyer. Rather than defend the charges
    vigorously, trial counsel appears to have stepped out of his role as defence
    counsel. Trial counsel effectively took on the role of a parent or social
    worker, leaving J.F. defenceless and without the effective assistance of
    counsel.

[5]

Second, neither J.F. nor his parents understood the implications of an
    NCR finding, that he could be in custody well beyond the sentences that would
    have been imposed for convictions on the charges.

[6]

Third, trial counsel persuaded J.F. to plead guilty in part in order to
    access the NCR disposition, even though there might have been a plausible
    defence on the arson charge, which was the most serious charge he faced.

[7]

Fourth, Dr. William J. Komer, the psychiatrist who authored the report
    leading to the NCR finding, based the opinion on J.F.s Aspergers Disorder,
    which is not a reasonable basis for an NCR finding.

[8]

There is merit in the first three arguments, which I address in turn
    below. Accordingly, I would strike the guilty pleas and direct a new trial, and
    set aside the NCR verdict.

A.

Trial Counsel Played an Unusual
    Role

[9]

The test for ineffective assistance of counsel can be briefly stated. The
    client must establish on a balance of probabilities that trial counsel's
    conduct fell below the standard of reasonable professional assistance and that
    the ineffective representation resulted in a miscarriage of justice:
R. v.
    Cubillan
(2018) 143 O.R. (3d) 376 at para. 8, citing

R. v. Joanisse

(1995), 102 C.C.C. (3d) 35
    (Ont. C.A.), at pp. 59-61, [1995] O.J. No. 2883, at paras.63-81, leave to
    appeal refused, [1996] S.C.C.A. No. 347. When the ineffective representation
    "undermine[s] the appearance of the fairness of the trial, or the
    reliability of the verdict," then a miscarriage of justice is made out:
R.
    v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 120.

[10]

Trial
    counsel testified that he developed concerns about J.F.s mental health at the
    outset of his retainer based on what he called the bizarre behaviour
    underlying the charges. On November 25, 2009 trial counsel requested the court
    to order
that J.F. be
    psychologically and psychiatrically assessed
under s. 34 of the
Youth Criminal Justice Act
, S.C. 2002, c. 1. He explained that
    he did so
[t]o provide a basis for [J.F.s] mother and father to
    move forward  given his cognitive issues, given his mental health issues,
    given all the issues that underline the behaviour that brought him before the
    court.

[11]

The
    first psychiatric report was by Dr. Jose Mejia, dated April 2010. Dr. Mejias
    diagnosis was that J.F. suffers from pervasive developmental disorder not
    otherwise specified, a learning disability, and adolescent antisocial
    behaviours. Dr. Mejia noted that J.F. was [c]ognitively speaking  impressed
    to be of average to superior intelligence with no obvious deficits, and that
    criminal responsibility may be in question given [J.F.s] cognitive
    difficulties. That being established and despite his superficial capacity to
    distinguish right from wrong, his appreciation of the consequences of his
    actions could certainly be severely compromised.

[12]

Trial
    counsel agreed: It was so apparent to anybody who talked to [J.F.], anybody
    who met with his parents, anybody who knew his background that he was suffering
    from significant mental illness.

[13]

Trial
    counsel requested the report to be provided through the court under s. 34 of
    the
Youth Criminal Justice Act
,
    he said, in order to spare J.F.s parents the costs of the assessments, but the
    effect of doing so was to make the content of the reports immediately available
    to the Crown.

[14]

Based on Dr. Mejias report the Crown sought an assessment
    under s. 672.11 of the
Criminal Code
, R.S.C. 1985, c. C-46,

to determine whether J.F. was criminally responsible for the
    offences charged. J.F. complains that trial counsel did not oppose the
    application and made no submissions. Trial counsel explained: I did not oppose
    the Crowns application as I did not have the grounds to do so.

[15]

J.F.
    was sent for an NCR assessment to Dr. Komer who provided two reports to the
    court. The details of the reports will be discussed below. In his first report Dr.
    Komer declined to carry out an NCR assessment because J.F. was denying any
    specific intent or of having committed his alleged offences.

[16]

After
    J.F. pleaded guilty on June 7, 2010, the Crown sought an assessment for NCR
    purposes. On that occasion trial counsel said: [N]otwithstanding the  [J.F.s]
    instructions, Your Honour, I think my friend is  that the grounds upon which
    she requests an assessment is appropriate. Trial counsel then asked the court
    to tell J.F. that he had to be cooperative with the assessment order.

[17]

Following
    J.F.s guilty plea, Dr. Komers second report led to the NCR finding. At the
    NCR hearing on June 25, 2010 the trial judge had the three reports, the one
    from Dr. Mejia and the two from Dr. Komer, and reached the NCR verdict. Trial
    counsel did not oppose the NCR verdict. He stated on the record: I take no
    issue with the finding otherwise being requested of you by learned counsel. Trial
    counsel did not seek to rebut the court-ordered assessment. He testified:

[J.F.] didnt have sufficient
    funds and that was reviewed with him. He knew his mother and father did not
    have the monies to otherwise do that.

[18]

J.F.s
    factum fairly states the evidence:

The Appellant testified that he never gave Trial Counsel
    instructions to not oppose the finding. Trial Counsel agreed and testified that
    he did not seek some of the necessary instructions from the Appellant because
    he did not believe that they would be understood. Trial Counsel stated that he
    could not have directly asked the Appellant if he took issue with the finding
    of NCR, as the Appellant would not have known the difference. Trial Counsel
    ultimately could not recall if he asked the Appellant if he took issue with
    NCR.

[19]

There
    is real doubt as to whether J.F. or his parents fully understood the course
    that trial counsel embarked upon, apparently without informed instructions.

B.

Neither J.F. nor his Parents Fully Understood the Implications of an NCR
    Finding

[20]

There
    is considerable discrepancy in the evidence of J.F. and trial counsel about
    what J.F. was told, when he was told, and what he knew about the consequences of
    an NCR finding to which J.F. asserted that he was utterly opposed. Although
    trial counsel asserted that he provided full information to J.F. and to his
    parents, he acknowledged receiving a telephone call from J.F.s mother asking:
    What does being found not criminally responsible mean for [J.F.]? She
    followed up with a letter to trial counsel on June 18, 2010 in which she said:
    [J.F.] does not understand the full impact of an NCR label. She added: Neither
    do we as parents for that matter.

[21]

Trial
    counsel gave evidence about what he discussed with J.F. regarding the impact of
    an NCR finding from contemporaneous notes from June 23, 2010 when he met J.F.
    in the holding cells, and from June 25, 2010, the day of the NCR hearing. He
    also met with J.F. after the hearing. Trial counsel said: Ive told [J.F.]
    that hes not going to be hospitalized forever. Trial counsel testified he had
    said something like, some six months to a year. J.F., for his part, testified
    that after the hearing trial counsel told him that he would not be in the
    hospital for a long time: [H]e said I would not be in the hospital
    indefinitely. He said that to me specifically.

[22]

There
    is real doubt as to whether J.F. or his parents fully understood the impact of
    an NCR verdict on J.F.s liberty interest.

C.

The Guilty Pleas were Problematic

[23]

The
    context for the guilty pleas was set by Dr. Komers first report, dated May 17,
    2010. Although he opined that J.F. was fit to stand trial, Dr. Komer declined
    to carry out an NCR assessment. He explained why he could make no NCR finding
    then:

His denial of any specific intent
    or of having committed his alleged offences, has limited my ability to express
    an opinion about his criminal responsibility with regards to mental disorder at
    the time of his alleged offences. I would recommend that he be assessed
    regarding his criminal responsibility with regards to mental disorder should it
    be determined that [J.F.] committed his alleged offences. He does, however,
    have difficulty understanding the consequences of his behaviour as a result of
    his Aspergers Disorder.

The implication was that unless J.F. pleaded guilty, no
    NCR finding could be made.

[24]

Arson
    was the most serious charge, and Dr. Komers first report suggested J.F.s lack
    of intent as a possible defence:

[J.F.] said that he was bored
    while on the bus and while playing with a lighter and looking in another
    direction out a window, papers accidentally set on fire. He said that he
    attempted to put the fire out and tried to tell the bus driver what happened.
    He minimized his actions on the bus and stated I dont see anything illegal
    about what happened a tiny little one minute mistake.

[25]

J.F.
    argues that trial counsel could have pursued the issue of whether the fire on
    the bus was accidental. The complaint is that trial counsel did not pick up on
    this important detail and provide a full defence.
J.F.
    insisted that he did not think he was guilty of arson. Trial counsel told him
    that he was guilty, and that his parents could not afford to pay for a trial.

[26]

On
    June 7, 2010 J.F. followed trial counsel's instructions to agree with the
    process, and pleaded guilty to each of the charges as read. The Crown then
    read in the facts at the end of which trial counsel said: He believes those facts
    are pretty close to what occurred. Is that correct, [J.F.]? To which J.F.
    responded: Yes. The trial judge made the finding of guilt and again referred J.F.
    to Dr. Komer for an NCR assessment.

[27]

There
    is real doubt as to whether J.F.s plea was informed, unequivocal and voluntary.

D.

Dr. Komers NCR Conclusion was not
    Unreasonable

[28]

In
    his second report, dated June 22, 2010, Dr. Komer opined that J.F. was not
    criminally responsible for the charged offences. The Crown argues that in light
    of the evidence given by Dr. Mejia and Dr. Komer, a finding that J.F. was NCR
    would have been made in any event.

[29]

Dr.
    Komers second report relies on his first report, which recounted J.F.s
    version of events surrounding the alleged offences: He denied having made any
    threats through the Internet and said that charges related to this are false.
    Dr. Komer then related J.F.s statements about the fire on the bus set out
    above. He went on:

[J.F.] said that he pointed a
    knife at himself because he thought the police officer was going to kill him
    and he preferred to kill himself. When asked if he felt remorseful for his
    actions he stated I dont believe I did anything wrong. You have to do
    something wrong to feel sorry and I look at it as everyone makes mistakesI
    dont think theres anything to feel sorry about. Everybody could make that
    mistake.

[30]

Dr.
    Komer gave a summary opinion in the first report, finding:

[J.F. suffers from] a pervasive
    developmental disorder, Aspergers Disorder. He has impaired social
    interaction, displayed repetitive and stereotyped behaviours and had significant
    impairment in functioning. [J.F.s] problems have been severe and pervasive.
    [He] also has a conduct disorder. He has previously been identified as having
    borderline intellectual functioning, an attention deficit hyperactivity
    disorder and a bipolar disorder.

[31]

In
    his second report Dr. Komer added more of J.F.s comments on the charges, some
    of which Crown counsel brought to the courts attention, including the
    following:

[J.F.] stated, I dont think words
    of any kind are threateningonly actions is the important thing.

[J.F.] discussed circumstances surrounding his index offences.
    His responses were consistent with the reports from his parents about what he
    told them. He acknowledged having made threats through the Internet to the
    victims and said that he did nothing wrong, should not have been charged, is
    not remorseful, feels victimized by being charged and should be thanked for his
    actions. Regarding the threats to Ms. Crane, [J.F.] stated it is an
    abomination to try to limit whats in peoples mindI think it was good in a
    senseIm speaking what comes to my mindwhat I did was an honour. He said
    that Ms. Crane would not have felt threatened at all and should have accepted
    what was communicated to her and not called the police. With regards to the
    threats to Mr. Bell about Ms. Bell, [J.F.] stated, I was enjoying myself
    speaking my mind what came to my head. I always feel good inside releasing my
    thoughts. He said that if he didnt send the threat, he would have obsessed
    over and over. [J.F.] stated, I would be shocked if someone told me that
    people actually did get concerned about people speaking their mind. With
    regards to the threat to Mr. Audet, he stated, I thought it was a comedian
    joke when someone told me the police were coming to arrest me. [J.F.] said
    that Mr. Audet did not feel threatened at all and should have seen him as an
    honourable person.

These facts are undoubtedly telling about J.F.s
    mental state.

[32]

Dr.
    Komers NCR opinion is set out in the last paragraph of his second letter:

In my opinion, [J.F.] was not criminally responsible with
    regards to mental disorder at the time of his index offences. [J.F.] lacked a
    knowledge of the wrongfulness of his actions as a result of his Aspergers
    Disorder.

[33]

J.F.
    relies on this sentence to argue that the diagnosis of Aspergers Disorder was
    the sole or main basis of the NCR finding, which, based on several authorities,
    was unreasonable.

[34]

Perhaps
    this interpretation of Dr. Komers opinion unfairly decontextualizes the opinion
    sentence, as can be seen when the summary paragraph is read as a whole:

In summary, [J.F.] is a 17-year-old youth who has, in my
    opinion, a pervasive developmental disorder, Asperger's Disorder. He has
    impaired social interaction, displayed repetitive and stereotyped behaviours
    and had significant impairment in functioning. [J.F.s] problems have been
    severe and pervasive. [J.F.] also has a conduct disorder. He has previously
    been identified as having borderline intellectual functioning, an attention
    deficit hyperactivity disorder and a bipolar disorder. [J.F.] is, in my
    opinion, fit to stand trial. In my opinion, he was not criminally responsible
    with regards to mental disorder at the time of his index offences. [J.F.] lacked
    a knowledge of the wrongfulness of his actions as a result of his Asperger's Disorder.
    He is an individual who would likely best be managed and function in a
    structured, supportive, supervised, predictable and reliable environment. He
    has difficulty with inconsistencies, change, social cuing, anger management and
    relationships. [J.F.] is, in my opinion, a significant threat to the safety of
    the public.

[35]

However,
    I need not determine whether the NCR verdict was based on a flawed psychiatric
    report and is unreasonable, in light of the disposition.

E.

Disposition

[36]

I
    would not impugn the good faith of trial counsel. Nonetheless, it is plain that
    he stepped outside of his role as defence counsel, and did not provide
    effective assistance. This not only effectively left J.F. defenceless in the
    face of the prosecution, but smoothed the way to an NCR verdict that J.F. did
    not want pursued. Trial counsels request for an assessment under s. 34 of the
Youth Criminal Justice Act
paved the way
    to an NCR verdict. It is not clear on the evidence whether trial counsel got
    instructions from J.F. or his parents to request the s. 34 report, but it is clear
    that J.F. and his parents did not fully understand the implications of the inexorable
    process that trial counsel deliberately initiated. Trial counsel's personal commitment
    to a mental health outcome, which he sincerely thought was in J.F.s long term
    best interests, blinded him to the defence possibilities and led him to
    encourage J.F. to plead guilty, even in the face of a possible defence to the
    most serious charge. Consequently, the entire process was so deeply flawed that
    neither the guilty pleas nor the NCR verdict can stand.

[37]

J.F.
    is a very troubled young man. Crown counsel advised the court in oral
    submission that the hospital where J.F. is detained considers him to be
    dangerous to public safety and will certify him on a Form 1 under the
Mental Health Act
, R.S.O. 1990, c. M.7,
if he is successful in this appeal.

[38]

Even
    so, J.F. was entitled to a procedurally fair process with respect to the
    charges he was facing, but that was denied to him by the ineffective assistance
    of trial counsel.

[39]

For
    the reasons set out above, I would strike the guilty pleas and direct a new
    trial, and I would set aside the NCR verdict.

Released: May 30, 2019

P. Lauwers J.A.

I agree. K.
    Feldman J.A.

I agree. I.V.B. Nordheimer J.A.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

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

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

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

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.B., 2019 ONCA 361

DATE: 20190503

DOCKET: C65189

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.B.

Appellant

Ian McCuaig, for the appellant

Candice Suter, for the respondent

Heard: May 1, 2019

On appeal from the conviction entered on September 5,
    2017 Justice James W. Sloan of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault and sexual interference
    after a trial before a judge of the Superior Court of Justice sitting without a
    jury. At the conclusion of the hearing we dismissed the appeal with reasons to
    follow. We now provide those reasons.

The Background Facts

[2]

The complainant was 31 years old when she testified. She gave evidence
    of three separate incidents involving the appellant. These, she said, took
    place when she was nine or ten years old and the appellant was visiting and
    looking after her.

[3]

In her testimony, the complainant had some difficulty recalling the
    precise timing and details of these incidents. However, her evidence was
    confirmed in part by the testimony of others, namely, her childhood best friend,
    her friends father, and her mother.

[4]

The appellant testified at trial. He denied the incidents described by
    the complainant or that he had ever engaged in any inappropriate sexual contact
    with her. An integral part of the defence position was that the timeline relied
    upon by the Crown, and reflected in the counts on the indictment, was flawed.
    No such conduct
could
have occurred because the appellant had no
    relationship with the complainant or her mother at that time.

[5]

The trial judge rejected the appellant's testimony. He did not believe
    him, nor did his evidence raise a reasonable doubt about the appellant's guilt.
    The complainants testimony, coupled with the balance of the evidence, satisfied
    the judge beyond a reasonable doubt about the appellant's guilt.

The Arguments on Appeal

[6]

In this court, the appellant contends that the trial judge erred in
    reaching his conclusion that guilt had been proven beyond a reasonable doubt by
    applying uneven scrutiny to the evidence of the complainant and that of the
    appellant. This uneven scrutiny, the appellant says, is made clear by three
    specific errors on the part of the trial judge:

i.

in concluding that the evidence of the witness, R.C., contradicted the
    appellant's testimony when it in fact bolstered or supported it;

ii.

in relying on prior consistent statements of the complainant as
    bolstering her credibility; and

iii.

in
    finding that the complainant had no motive to lie and impermissibly relying on
    this finding to bolster the complainant's credibility.

Discussion

[7]

As this court has said many times when an argument of uneven scrutiny is
    advanced, it is a very difficult claim of error to put forward successfully. It
    fails in this case.

[8]

In our view the appellant has not pointed to anything in the record or
    the reasons that confirms that the trial judge actually applied different
    standards of scrutiny in his assessment of the evidence of the complainant, on
    the one hand, and the appellant, on the other. Without more, the fact that the
    trial judge believed the evidence of the complainant and disbelieved that of
    the appellant does not establish that the judge applied uneven scrutiny in
    doing so.

[9]

We are not satisfied that the trial judge misstated R.C.'s evidence in a
    way that contradicted the appellant's evidence or that he used such a mistaken
    view of that evidence to reject the timeline described by the appellant. The
    trial judge reached his conclusion about the no-contact date having considered
    R.C.'s evidence alongside the evidence of his daughter. This conclusion was
    open on the evidence.

[10]

Nor
    are we persuaded that the trial judge improperly used evidence of the
    complainant's prior disclosure of the incidents to R.C., her family doctor, and
    in a failed report to police in 1997. We do not read the trial judge's reasons
    as indicative of use of these statements as evidence that the incidents
    disclosed by the complainant had occurred. In our view, fairly read, the
    reasons make it clear that the use of this evidence was for the entirely
    permissible purpose of understanding the narrative and assessing the
    complainant's credibility. See,
R. v. Dinardo
, [2008] 1 S.C.R. 788, at
    paras. 36-38.

[11]

Finally,
    we do not accept that the trial judge erred by confusing the absence of evidence
    of a motive to lie with absence of a motive to lie and using it as supportive
    of the credibility of the complainant. The trial judge simply concluded that
    there was no evidence in the record of any motive to lie on the part of the
    complainant. He did not consider that there was no motive to lie nor did he use
    such an absence of motive to buttress the credibility of the complainant.

Conclusion

[12]

It
    is for these reasons that the appeal was dismissed.

David Watt J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Koningen, 2019 ONCA 391

DATE: 20190513

DOCKET: C56707

Feldman, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karen Koningen

Appellant

Travis Hughes, for the appellant

Sean Horgan, for the respondent

Heard: May 3, 2019

On appeal from the conviction imposed on November 29,
    2012 by Justice Gregory A. Pockele of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from a conviction for fraud exceeding $5000,
    contrary to s. 380(1)(a) of the
Criminal Code
, arising out of
    misrepresentations related to receipt of social benefits from the Ontario Works
    program.

[2]

A benefits recipient has a continuing obligation to report any changes
    in income, assets, or living circumstances immediately. The significance of a
    benefits recipient failing to fulfil this obligation is that Ontario Works is
    thereby deprived of the information it needs to assess continued entitlement to
    benefits.

[3]

The appellant initially qualified for benefits in October 2007 while
    living in rented accommodation on South Street in London, Ontario with her two
    children. When the appellant first qualified for Ontario Works benefits, she
    was assessed as a sole-support parent of two children, with no income. She
    provided requisite details of her living arrangements and rent. She signed and
    initialed documents explaining her obligation to advise of any change to her
    status. There is no dispute that the appellants initial statements to Ontario
    Works about her living circumstances were accurate when they were made. The
    main issue at trial was whether there were significant changes in the
    appellants living circumstances that she failed to report.

[4]

In July 2008, the appellant moved with her children to a rented home on
    Paperbirch Crescent in London. She notified Ontario Works as required, and
    submitted a copy of her Tenancy Agreement signed in June 2008. The Tenancy
    Agreement indicated that she was renting the upper portion of the residence for
    $700 per month. She requested payment for first and last months rent. Lisa
    Dalla Costa, a case worker for the City of London, called the person identified
    in the Tenancy Agreement as the landlord  James Weedmark  to verify the
    information provided. She had already determined that he was not the owner of
    the property. He advised her that he was in fact renting the residence and
    lived in the basement with his children. The only concern Ms. Dalla Costa had
    at that time was that an Ontario Works recipient is not entitled to
    reimbursement for last months rent in advance when subletting, and she advised
    the appellant of that. There was no concern at that time that there had been
    any changes to the appellants benefit unit  the appellant and her two
    children.

[5]

In September 2009, the appellant moved again, to an address on
    Sunningdale Road. This time she did not advise Ontario Works, which continued
    her benefits on the basis of the rent payable under the June 2008 Tenancy
    Agreement from the Paperbirch residence.

[6]

In December 2009, Ontario Works received an anonymous complaint that the
    appellant had undisclosed income and had moved without informing Ontario Works.
    Ontario Works began an investigation and placed a hold on the appellants
    benefit payments.

[7]

Ontario Works was not able to substantiate the claim of undisclosed
    income. However, when the Ontario Works eligibility review officer, Barbara
    Bourne, contacted the registered owner of the Paperbirch residence, she was informed
    that the appellant had moved to a residence on Sunningdale Road with Mr.
    Weedmark, who was characterized by the owner as the appellants spouse. A
    subsequent conversation with the landlord at Sunningdale revealed that the
    Sunningdale landlord also understood the appellant and Mr. Weedmark to be
    living as spouses.

[8]

At that point, Ontario Works had two concerns: (1) the appellant had not
    disclosed a change in residence (including the quantum of rent payable at the
    new residence), and (2) the appellants benefit unit had potentially changed
    such that she was no longer a sole-support parent. Both of these changes could
    potentially impact her entitlement to receive benefits, or at least the quantum
    of that entitlement. Based on information from the owner of the Paperbirch
    residence that the house had been rented out as a single dwelling, and
    information from the owners of both Paperbirch and Sunningdale that they
    understood the appellant and Mr. Weedmark to be spouses, Ontario Works
    suspected that the appellant and Mr. Weedmark had been living with their
    respective children as a single family unit. It concluded that the June 2008
    Tenancy Agreement that indicated that the appellant was renting accommodation
    from Mr. Weedmark and living upstairs with her two children and no one else,
    was a deception.

[9]

From the perspective of Ontario Works, the significance of the apparent
    deception was that it was prevented from making inquiries about Mr. Weedmarks
    income to determine whether the appellant now had more resources at her
    disposal than previously. It was possible that Mr. Weedmark had little or no
    income, and that cohabitation would not impact on the appellants benefits. But
    Ontario Works was prevented from determining the true state of affairs, and
    whether the appellants benefit entitlement should be reduced.

[10]

In
    January 2010, Ontario Works mailed the appellant a notice requiring her to
    attend a meeting to address their concerns. She did not attend. Ontario Works
    rescheduled the meeting for February. Again, she did not attend. She was sent a
    notice of overpayment of approximately $14,000 comprising of the funds she had
    been paid under Ontario Works since July 2008. The notice also explained how to
    appeal that determination. She did not appeal, and her file was closed on the
    basis of her failure to make any contact with Ontario Works.

[11]

The
    appellant did not testify at trial, but a video statement made to police was
    tendered. That exhibit has been lost. On agreement of the parties, a summary of
    her statement was provided on appeal. The summary indicates she knew that she
    was obligated to advise Ontario Works of any changes in her circumstances. She
    advised that the monthly rent she actually paid to Mr. Weedmark at Paperbirch
    had been variable and was sometimes less than $700. (She did not state whether
    the monthly rent of $700 was nevertheless owed by her to Mr. Weedmark, whether
    she had in fact paid him or not.) She stated that her rent increased after
    moving to Sunningdale. She denied that she and Mr. Weedmark were spouses at
    Paperbirch, but acknowledged they became engaged on December 31, 2009, some
    four months after moving to Sunningdale. She maintained that she did not have
    any spousal relationship with Mr. Weedmark prior to the suspension of her
    benefits at the end of December.

[12]

She
    stated that in January 2010, she was advised by the Paperbirch owner that
    Ontario Works had called about her. At that point, she stated, she contacted
    Ontario Works through Ms. Bourne, and provided her with information, including
    particulars of the Sunningdale lease.

[13]

The
    trial judge did not find the appellant credible. He rejected her evidence that
    she contacted Ms. Bourne in January 2010. Nevertheless, he was not prepared to
    find that the appellant and Mr. Weedmark had been living as spouses at any
    relevant time. The trial judge held that this question was immaterial to
    whether the appellant had deceived Ontario Works as to changes to her living
    circumstances that she had an obligation to disclose.

[14]

No
    evidence was tendered that could enable the court to determine whether the loss
    was less than the full amount received from July 2008 forward. That is, there
    were no calculations from Ontario Works to determine what the appellants
    entitlement (if any) would have been had she been cohabitating with Mr.
    Weedmark at Paperbirch or Sunningdale or both. Calculations could not be done
    because there was no evidence at trial of Mr. Weedmarks income.

[15]

The
    trial judge entered a conviction for fraud over $5,000. At sentencing, the
    trial judge acknowledged that had the appellant undergone a reassessment with
    Ontario Works, it might have turned out that she would have been eligible for
    some amount of benefits even if she had been cohabitating with Mr. Weedmark.
    But she did not seek a reassessment, and the trial judge concluded that her
    lack of cooperation should not be rewarded.

Analysis

[16]

The
    trial judge committed two errors that necessitate allowing the appeal. First,
    the trial judge failed to make a clear finding as to whether the appellant was
    co-habitating with Mr. Weedmark. Second, the trial judge misapprehended the
    evidence with respect to the June 2008 tenancy agreement, which may have
    impacted his assessment of the appellants credibility.

(1)

Co-habitation

[17]

The
    trial judge was correct in stating that the question of whether the appellant
    and Mr. Weedmark were spouses was not dispositive. The salient issue is whether
    the appellant was in a shared living arrangement with Mr. Weedmark, whether as
    spouse or otherwise, at Paperbirch or Sunningdale or both, prior to January
    2010. The trial judge did not make a clear finding on this question. The
    appellant insisted that the information in the June 2008 Tenancy Agreement was
    accurate, and that she lived separately from Mr. Weedmark at Paperbirch. The
    trial judge made no findings as to what the living arrangements were at
    Paperbirch. In fact, the only evidence at trial that was contrary to the
    appellants position was the landlords testimony that the Paperbirch residence
    was configured as a single family dwelling and he believed it was used as such.
    Although the trial judge found that the appellant and Mr. Weedmark were
    sharing a residence at Paperbirch, this finding is ambiguous between
    co-habitation (which would have to be disclosed to Ontario Works) and subletting
    a portion of the residence (which is what was disclosed to Ontario Works). In
    the absence of an express finding that there was co-habitation, it was not open
    to the trial judge to draw the inference that the June 2008 Tenancy Agreement
    did not represent the actual state of affairs, or that the appellant intended
    thereby to deceive Ontario Works.

(2)

Misapprehension of evidence

[18]

Furthermore,
    the trial judge misapprehended the evidence in finding that the appellant was a
    party to the lease between the owner of the Paperbirch residence and Mr.
    Weedmark. Although the appellant is listed in the lease under the category of
    tenants/occupants/children, together with her children, she is not a
    signatory to the lease. Mr. Weedmark is the only signatory to that lease. This
    misapprehension appears to have contributed to the trial judges conclusion
    that the June 2008 Tenancy Agreement was not
bona fide
, which in turn
    was stated as a reason not to accept the appellants evidence that she had
    advised Ontario Works of her move to Sunningdale.

[19]

With
    respect to Sunningdale, although the trial judge stated that he accepted the
    appellants statement that she was co-residing with Mr. Weedmark, it appears
    from the record before us that the appellant did not concede that they had
    co-habitated prior to January 2010. She did concede that she and Mr. Weedmark
    co-habitated at Sunningdale
after
January 2010, which is the period
    after her benefits were suspended. There was therefore no admission of
    co-habitation (as opposed to occupying different parts of the same residence)
    prior to that time, and the trial judge misapprehended this evidence in coming
    to this finding.

[20]

This
    misapprehension of the evidence figures prominently in the verdict as it lies
    at the core of the trial judges reasons for why he rejected the appellants
    credibility. This trial largely turned on that credibility assessment.
    Accordingly, it played a central part in the trial judges reasoning process
    resulting in the conviction appealed from:
R. v. Morrissey
, (1995) 22
    O.R. (3d) 514,

at para. 93 (C.A.).

DISPOSITION

[21]

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

K. Feldman J.A.

B.W. Miller J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kwok, 2019 ONCA 406

DATE: 20190515

DOCKET: C63920

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Evan Kwok

Appellant

Taufiq Hashmani and Daniel Michael, for the appellant

Vanita Goela, for the respondent

Heard: May 13, 2019

On appeal from the conviction entered by Justice Joseph
    F. Kenkel of the Ontario Court of Justice, dated January 12, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellants factual guilt was never
    an issue. He raised various
Charter
issues at trial. The trial judge rejected the arguments. The appellant renews
    the arguments on appeal.

[2]

The initial stop was a highway traffic
    stop. The officer, based on his observations, quickly formed reasonable grounds
    to believe the appellant was in possession of marihuana. That subjective belief
    was objectively justified on the evidence.

[3]

The search at the scene of the arrest
    was a lawful incident of the arrest. The officer had safety concerns and
    grounds to believe that the appellant was concealing evidence in his pants. The
    search was not a strip search and was not significantly more intrusive than a
    pat down search. It may be that the interaction at the roadside went on longer
    than it should have. The trial judge acknowledged this, but did not find the
    delay rendered the manner of search unreasonable. We agree.

[4]

The appellant was advised of his right
    to counsel in an appropriate manner. He invoked his right to counsel. The
    officer continued to question the appellant about the object in his pants. The
    questions were motivated primarily by the officers belief that the appellant
    had drugs in his pants. He also had safety concerns.

[5]

Assuming without deciding that the nature
    of the questioning went beyond what was appropriate to address officer safety
    concerns and constituted a breach of the s. 10(b) requirement that the officer
    refrain from questioning the appellant until he had a chance to speak to
    counsel, we are satisfied that the breach would not have led to the exclusion
    of the cocaine under s. 24(2) of the
Charter
.

[6]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lai, 2019 ONCA 420

DATE: 20190521

DOCKET: C65278, C65279

Hourigan, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Lai and Kevin Lai

Appellants

Michael Crystal, for the appellants

Ghazala Zaman, for the respondent

Heard: May 6, 2019

On appeal from the convictions entered by Justice Mitch
    Hoffman of the Ontario Court of Justice on February 1, 2018.

REASONS FOR DECISION

OVERVIEW

[1]

Gary Lai and Kevin Lai, the appellants, were each convicted of three
    counts of possessing narcotics for the purpose of trafficking, and possession
    of proceeds of crime. The evidence supporting these convictions arose from a contentious
    warrantless search of their apartment, which led to a further search pursuant
    to a warrant. The trial judge found the warrantless search to be
    unconstitutional, but admitted the evidence that was seized during the
    execution of the warrant.

[2]

The appellants appeal their convictions, arguing that the trial judge
    erred in his s. 24(2) analysis. They ask us to set aside their convictions,
    order the evidence to be excluded, and acquit them of all of the charges.

[3]

At the end of the oral argument we allowed the appeal. We set aside the
    convictions, ordered the evidence excluded, and substituted verdicts of
    acquittal on all charges. These are our reasons.

MATERIAL FACTS

[4]

Police officers responded to sounds of a domestic disturbance in an
    apartment unit. Based on information received, they had ample grounds to attend
    the apartment unit to investigate. When police arrived at the apartment unit,
    they knocked on the door. One of the appellants, Gary Lai, partially opened the
    door. Their interaction with Gary Lai at the door, along with the information
    previously received, provided the police with objective grounds to enter the
    apartment on an exigent basis to verify the safety of anyone who may be inside,
    pursuant to the common law authority confirmed in
R. v. Godoy
, [1999]
    1 S.C.R. 311 [a
Godoy
search].

[5]

One of the officers [the searching officer] entered and searched the
    apartment. Although he did not find anyone in need of assistance, he saw cash
    and drugs. A search warrant was obtained which led to the seizure of
    approximately 3,000 grams of marijuana, 35 grams of cocaine, 140 MDMA
    methamphetamine capsules, and $36,000. The appellants, Gary Lai and Kevin Lai,
    were charged with possessing these narcotics for the purposes of trafficking,
    and with possession of proceeds of crime.

[6]

At their trial, the appellants brought an s. 8 unreasonable search or
    seizure
Charter
challenge to the admissibility of all of the seized evidence.

[7]

The trial judge held that the appellants s. 8 rights were indeed
    breached. He found that although the officers had objective grounds to enter
    and search the apartment to conduct a
Godoy
search, he was not
    satisfied that this is why the searching officer entered.

[8]

The trial judge was troubled by the searching officers claim that he did
    not smell the odour of marijuana until he stepped into the apartment, after his
    one to two minute-long exchange with Gary Lai through the partially opened
    door. The other officer, who was not immediately next to the door, testified
    that he could smell a strong odour of marijuana as soon as the door was opened
    a crack. The trial judge inferred that the searching officer must also have
    smelled it immediately, and it was likely that he did not accurately relate when
    he smelled the marijuana to the court in an attempt to strengthen his
Godoy
grounds.

[9]

The searching officer also responded to a hypothetical question about
    what he would have done if no-one answered the door, by saying he would have probably
    gotten a landlord with a key. The trial judge treated the searching officers
    readiness to delay entry while retrieving a key as being inconsistent with a
    belief that there was an exigent need to enter to protect life and safety of
    any occupants.

[10]

Despite
    finding that the Crown had not established the subjective grounds necessary for
    a
Godoy
search, he denied the appellants s. 24(2) application for exclusion,
    admitted the evidence, and found the appellants guilty of the offences charged.

ISSUES

[11]

The
    appellants appeal their convictions. The heart of their appeal is that the trial
    judge committed two material errors in his s. 24(2) analysis. They say the
    trial judge:

A.

failed to consider the
    searching officers misleading testimony in his s. 24(2) analysis, when this
    should have been a significant, if not determinative, consideration; and

B.

erred by giving undue
    emphasis to the objective grounds for the search, improperly diminishing the
    impact of the lack of subjective grounds.

[12]

If
    we find error, the appellants ask this court to conduct a proper s. 24(2)
    analysis, exclude the evidence, and order their acquittal.

ANALYSIS

A.

The trial judge failed to consider the SEARCHING Officers Misleading
    Testimony

[13]

A
    finding that an officer intentionally attempted to mislead a court about a
    constitutional violation that has occurred is an important pro-exclusionary
    consideration in an s. 24(2) application:
R. v. Pino
, 2016 ONCA 389, 130
    O.R. (3d) 561, at para. 103. In
R. v. Harrison
, 2009 SCC 34, [2009] 2
    S.C.R. 494, McLachlin C.J. said for the majority, at para 26:

I note that the trial judge found the officers in-court
    testimony to be misleading. While not part of the
Charter
breach
    itself, this is properly a factor to consider as part of the first inquiry
    under the s. 24(2) analysis given the need for a court to dissociate itself
    from such behaviour.

[14]

The
    trial judge gave no consideration to the searching officers misleading testimony
    in arriving at his s. 24(2) decision.

[15]

Initially,
    the Crown sought to answer this ground of appeal by challenging the trial
    judges factual finding that the searching officer did not have subjective
    grounds. There are indeed some curiosities in the trial judges reasoning on
    this point. During oral argument, however, the Crown acknowledged that it was
    bound by the trial judges factual finding that the searching officer did not
    have the subjective grounds he claimed in his testimony. The Crown is bound by
    that finding, and so too are we.

[16]

The
    Crown also attempted to overcome the absence of consideration of the searching officers
    misleading testimony during the trial judges s. 24(2) analysis by urging that he
    never made a finding that the searching officer intentionally misled the court.
    Hence, this consideration is irrelevant.

[17]

We
    acknowledge that the trial judge did attempt to gently couch his finding by
    stating at one point that he did not need to determine whether the searching
    officer lacked believability or lacked reliability. We take believability
    to be a reference to the credibility or honesty of the searching officers
    testimony, and reliability to refer to those factors that can cause honest testimony
    to be mistaken, such as a compromised opportunity to observe, memory problems,
    or ineffective communication: see
R. v. Norman
(1993), 26 C.R. (4th)
    256 (Ont. C.A.), at p. 274. In other words, the trial judge did say that it was
    not necessary for him to decide whether the searching officer was being
    dishonest or was mistaken when he provided his inaccurate testimony.

[18]

In
    spite of this, when the trial judges decision is looked at as a whole, it is
    clear that the trial judge found on the balance of probabilities that the searching
    officer was not being truthful when he claimed that he was conducting a
Godoy
search. The trial judge twice ventured that the problem was likely with
    the searching officers credibility.

[19]

Both
    reasons offered by the trial judge for rejecting the searching officers
    subjective-belief testimony are purely about credibility, and have nothing to
    do with reliability.

[20]

Specifically,
    an honest mistake by the searching officer about when he first smelled
    marijuana would logically have no bearing on his claim that he searched the
    apartment because he honestly believed that someone inside could be in peril.
    The inaccurate claim that he did not smell the marijuana until he was inside
    was relevant only on the theory that he gave this inaccurate information as a
    strategy to avoid the suggestion that he entered because of the smell of
    marijuana. In the words of the trial judge, it was likely  an attempt to
    strengthen [the searching officers
Godoy
] grounds.

[21]

Similarly,
    the admission by the searching officer that he would have sought the landlord
    has no logical relevance to whether he accurately remembered his actual subjective
    reason for entering. Its logical relevance is that an admission in his testimony
    that he was prepared to wait for a key to be obtained is inconsistent with the
    state of mind he claimed to have, requiring an exigent entry to protect life
    and safety.

[22]

Finally,
    in commenting on the seriousness of conducting a search without subjective
    grounds, the trial judge said [i]t is serious
Charter
infringing
    State conduct when a [c]ourt does not find upon reliable and believable
    evidence on that point. Manifestly, the trial judge did not find the sworn
    testimony offered by the searching officer about his
Charter
grounds
    to be believable.

[23]

It
    was therefore an error for the trial judge not to consider the searching officers
    misleading testimony when determining whether exclusion of the evidence was
    required.

B.

THE TRIAL JUDGE ERRED IN ThE usE OF THE OBJECTIVE GROUNDS

[24]

The trial judge found that a search
    without subjective grounds is serious
Charter
infringing State conduct
    that pushes strongly towards exclusion. He also found that the impact of the
    exclusion of reliable evidence on such serious charges pulls moderately
    towards inclusion. He therefore reasoned that whether the evidence is excluded
    would depend on the second
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353

consideration  the impact of the breach on the
Charter
-protected
    interests of the accused.

[25]

We take no issue with any of this. He
    erred, however, in making this critical determination on the second
Grant
consideration.
    He was wrong to have accepted the Crowns argument that the
Charter
breach
    had little impact on the
Charter
-protected interests of the appellants,
    because the public does not have the right or reasonable expectation to be
    free from a search even of a dwelling where objective reasonable serious public
    safety grounds exist.

[26]

First, the underlying legal proposition
    that he accepted  there is no right to be free from an objectively reasonable
    search even into an area an individual enjoys a very high expectation of
    privacy  is wrong in law. As the trial judges own holding on the
Charter
breach
    reflects, a person with a reasonable expectation of privacy in a place has the
    constitutional right to be free from an illegal search. A search without
    subjective grounds is illegal, even where objective grounds would have existed
    had the officer acted on those grounds:
R. v. Feeney
, [1997] 2 S.C.R.
    13, at para. 29.

[27]

Second, the trial judge misconceived
    the second
Grant
factor: As the Supreme Court said in
Grant
, at
    para. 76:

This inquiry focusses on the
    seriousness of the impact of the
Charter
breach on the
Charter-
protected
    interests of the accused. It calls for an evaluation of the extent to which the
    breach actually undermined the interests protected by the right infringed.

[28]

The extent to which the breach
    undermines the substantial privacy interest in a dwelling house does not vary
    depending upon whether, in spite of the breach, objective grounds existed. The
    trial judge erred in finding that it does.

[29]

We also agree with the appellants that
    the effect of the trial judges reasoning was to trivialize improperly the
    subjective component of the reasonable grounds test. The net effect of the
    trial judges reasoning was to denude his determination that a search without
    subjective grounds is serious
Charter
infringing conduct, by finding
    that the absence of subjective grounds was outpointed by the presence of
    objective grounds.

[30]

In
R. v. Caslake
, [1998] 1
    S.C.R. 51, at para. 27,

Lamer C.J. explained why the subjective
    component of the reasonable grounds standard is important:

The
Charter
requires that
    agents of the state act in accordance with the rule of law. This means that
    they must not only objectively search within the permissible scope, but that
    they must turn their mind to this scope before searching. The subjective part of
    the test forces the police officer to satisfy him or herself that there is a
    valid purpose for the search  before the search is carried out. This accords
    the ultimate purpose of s. 8, which, as Dickson J. stated [in
Hunter v.
    Southam Inc.
, [1984] 2 S.C.R. 145] is to prevent unreasonable searches
    before they occur.

[31]

The trial judge also committed a
    conceptual error by using the objective grounds for a
Godoy
search to
    mitigate the impact of the breach, after finding that the searching officer did
    not conduct a
Godoy
search. In
Caslake
, Lamer C.J. made clear
    that a court cannot justify a search based on the existence of objective
    grounds for a form of search that was not undertaken. In that case, the
    officers purported inventory search could not be justified based on the fact
    that he would have had objective grounds if he had conducted a search incident
    to arrest. The same principle applies to mitigation. It is improper to diminish
    the seriousness or impact of an illegal search because the searching officer
    would have had objective grounds had he conducted a different kind of search.

[32]

Unfortunately, the trial judges s.
    24(2) decision was undertaken without considering the effect of the searching
    officers misleading testimony on the repute of the administration of justice,
    and it was premised on a legal error. He also misapplied the second branch of
Grant
,
    and his decision had the effect of trivializing the important subjective
    component of the reasonable grounds standard. The trial judges s. 24(2)
    decision cannot stand.

C.

The EVIDENCE sHOULD HAVE BEEN
    EXCLUDED

[33]

This is an appropriate case for us to
    determine the s. 24(2) issue, as the trial judges factual findings are clear.
    The problems were with his analysis.

[34]

The trial judge stopped short of
    finding that the searching officer used the
Godoy
search as a Trojan horse
    or pretense for a drug search without grounds. We therefore cannot take up the
    appellants invitation to rely on this to find the breach to have been serious.

[35]

Nonetheless, the breach is serious. We
    agree with the trial judge that it is a serious breach to conduct a search
    without subjective grounds.

[36]

Moreover, while we stop short of
    endorsing the appellants claim that misleading testimony about a
Charter
breach
    requires exclusion on its own, the searching officers misleading evidence does
    significantly aggravate the seriousness of the breach. As Cronk J.A. said in a
    passage in her dissenting decision in
R. v. Harrison
, 2008 ONCA 85,
89
    O.R. (3d) 161,
at para. 160:

[T]he integrity of the judicial
    system and the truth-seeking function of the courts lie at the heart of the
    admissibility inquiry envisaged under s. 24(2) of the
Charter
. Few
    actions more directly undermine both of these goals than misleading testimony
    in court from persons in authority. Our system of criminal justice is fashioned
    on the collective expectation of the community that police officers who testify
    in a criminal case will do so honestly and impartially, unmotivated by
    self-interest or the desire to secure a conviction. The central importance of
    this expectation cannot be overstated where the testimony is received in a
    criminal trial involving allegations of serious constitutional violations by
    the police.

[37]

The Supreme Court of Canada ultimately
    agreed with the outcome of Cronk J.A.s dissenting decision, and this specific
    passage found favour when it was quoted from by McLachlin C.J.
at para.
    26
.

[38]

The second
Grant
consideration
    also strongly supports exclusion. Contrary to the finding of the trial judge,
    the impact of the search on the
Charter
-protected interests of the
    appellants was considerable. The police entered their dwelling house illegally,
    violating their privacy interests.

[39]

We accept the trial judges conclusion
    that the final
Grant
consideration pulls moderately towards inclusion. There
    is apt to be some damage to the repute of the administration of justice by
    jettisoning the reliable, crucial evidence that is needed to sustain serious
    charges.

[40]

Given that the first two
Grant
considerations
    strongly favour exclusion, however, this courts decision in
R. v. McGuffie
,
    2016 ONCA 365,
131 O.R. (3d) 643,
at para. 63 would
    counsel exclusion. In our view that is the appropriate outcome, especially
    considering the trial judges conclusion relating to the searching officers
    testimony. We exclude the evidence obtained both during the initial search and
    the subsequent search with a warrant.

CONCLUSION

[41]

We therefore allow the appeal, set
    aside the convictions, order the exclusion of the evidence seized from the
    apartment and substitute verdicts of acquittal on all of the charges.

C.W. Hourigan J.A.
David M. Paciocco J.A.
Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Majeed, 2019 ONCA 366

DATE: 20190506

DOCKET: C60866

Feldman, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Majeed

Appellant

Michael Dineen, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: May 2, 2019

On appeal from the conviction entered on June 15, 2015 by
    Justice Brownstone of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for obtain credit by false
    pretences and the finding of guilt on inducing a person to act on a false
    document. In oral argument counsel identified the issue in the following way:
    he submitted that the trial judge effectively found that the mortgage broker,
    who had the same knowledge of the scheme as the appellant, could have been
    simply naive, and that that finding was inconsistent with the finding of
    fraudulent conduct by the appellant beyond a reasonable doubt.

[2]

We do not accept this submission. Looking at the reasons as a whole and
    the role that each of the parties played in the process, while the mortgage
    broker should have perceived that the rental agreements were false based on the
    email correspondence leading to their submission, the appellant was the one who
    submitted them. In that regard, the trial judge found at para. 25:

The email correspondence dated March 16, 2013 and April 5, 2013
    between Mr. Majeed and Mr. Vaz referred to in paragraphs 11 and 12 above, makes
    it abundantly clear that Mr. Majeed played an active role in the drafting of
    the rental agreements that were to be submitted to MCAP.

[3]

That finding was available on the record and is sufficient to ground the
    conviction. As the trial judge stated at the end of para. 25:

It is sufficient that the Crown prove beyond a reasonable doubt
    that Mr. Majeed knew that he was submitting false documents to MCAP via Mr.
    Vaz.

[4]

As a result the appeal is dismissed.

K.
    Feldman J.A.

B.W.
    Miller J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Majeed, 2019 ONCA 422

DATE: 20190522

DOCKET: C64676

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Majeed

Appellant

Michael Dineen, for the appellant

Jeremy D. Tatum, for the respondent

Heard and released orally: May 16, 2019

On appeal from the conviction
    entered by Justice S. Nakatsuru of the Superior Court of Justice, dated October
    5, 2017, and the sentence imposed on December 15, 2017.

REASONS FOR DECISION

The Conviction Appeal

[1]

There is one ground of appeal. The appellant submits that the trial
    judge erred in holding that the appellant had failed to establish a breach of
    s. 11(b) of the
Charter
,
e
ven
    though this case was before the courts for a significant period of time. We
    disagree with this submission.

[2]

The trial judge correctly and concisely outlined the approach to s.
    11(b) claims mandated by
Jordan
: see
Majeed
, 2017 ONSC 3554.
    In applying the Jordan analysis, the trial judge calculated the net delay at 50
    months, some 20 months above the
Jordan
cap (reasons, para. 13). The
    appellant does not take issue with this calculation.

[3]

The trial judge found that the Crown had established three
    specific events that qualified as exceptional circumstances and which, taken
    together, justified a 10-month delay in the completion of the preliminary
    inquiry. Taking that 10 months in account, the delay for s. 11(b) purposes was
    just under 40 months, still 10 months over the
Jordan
cap.

[4]

The trial judge next
    considered, and accepted, the Crowns submission that the complexity of the
    prosecution constituted an exceptional circumstance. In reaching that
    conclusion, the trial judge considered not only the complexity of the case in
    terms of the number of accused, the number of witnesses, the nature of the
    evidence, and the number of issues, but also took into account the steps taken
    by the prosecution to properly manage that complexity and mitigate any delay
    caused by it (see reasons, paras. 30-47).

[5]

The trial judge accepted
    and relied on the unchallenged affidavit of the lead investigator. He described
    the explanation proffered in the affidavit for the progress of the prosecution
    as detailed and thoughtful: reasons, para. 48. The trial judge ultimately
    concluded:

I find that the Crown made reasonable efforts to manage this
    complex case. While I agree it is the Crown who drives the prosecution, the
    Crown developed and organized a reasonable plan to try and get to the destination,
    the completion of the trial, by the most direct and quickest route possible.
    While there will always be unexpected obstacles to overcome and decisions that
    with reflection the Crown may have wanted to re-visit, the Crowns response to
    the particular complexity of this case while perhaps not perfect was reasonable
    and acceptable within the meaning of a s. 11(b) analysis.

[6]

The trial judge addressed the defence submission that, although the
    prosecution did have a plan to manage the prosecution, that plan came too late
    and was implemented after too much delay (reasons, paras. 50-52). The trial
    judge was concerned by this submission, but ultimately decided that the steps
    taken to address the complexity of the case were sufficiently timely in all of
    the circumstances.

[7]

As is hopefully apparent from the brief summary above, the s. 11(b)
    analysis required in this case demanded extensive fact-finding by the trial
    judge and an appreciation of how the criminal process works, not only in the
    Superior Court but in the Ontario Court of Justice. The trial judge was well
    positioned to do both. We defer to his assessments, absent palpable and
    overriding error. We find none.

[8]

The appellant focuses on two aspects of the s. 11(b)
    analysis. He submits that the trial judge erred in accepting that the delay
    caused by the last-minute replacement of the preliminary inquiry judge who had
    become ill was justified as an exceptional circumstance for the purposes of the
Jordan
analysis.  The appellant
    accepts that some delay was justified in that one could not expect that the
    replacement judge would be available for all 26 days that had been scheduled
    for the preliminary. The appellant submits, however, that the unavailability of
    the replacement judge for 8 of those 26 days went beyond what could be viewed
    as reasonable and resulted in a delay of about four months.

[9]

The trial judge was no
    doubt very familiar with the way matters are scheduled in the Ontario Court of
    Justice. Ontario Court of Justice judges have ongoing matters that are
    scheduled from time-to-time, sometimes well in advance. Neither party saw fit to
    adduce any evidence on the question of whether the replacement judges unavailability
    for 8 out of 26 days should be considered normal, abnormal or something in
    between. The trial judge was left to his own experience and understanding of
    the way the process operates and can reasonably be expected to operate. We
    cannot say he was wrong in failing to parse the delay flowing from the
    replacement of the preliminary inquiry judge in the manner now urged by the
    appellant. We would not give effect to that ground of appeal.

[10]

The appellants second
    argument, that the trial judge was wrong in treating the complexity of the case
    as an exceptional circumstance for the purposes of the
Jordan
analysis, also engages factual considerations. More
    specifically, the appellant argues that while the prosecution was admittedly
    complex and the Crown admittedly took steps to address the management of the
    prosecution, the Crown failed to act quickly enough to prepare and implement a
    litigation plan that would address and mitigate delays flowing from the
    complexity.

[11]

In our view, whether the
    Crown acted quickly and effectively enough was the kind of factual
    determination that lies at the heart of the trial judges fact-finding role. We
    see no reason to interfere with his conclusion in that regard. This ground of
    appeal must also be rejected.

[12]

The trial judge went on
    to consider whether the transitional exceptional circumstance could also
    justify the delay for the purposes of s. 11(b). He held that it could. In light
    of our conclusion that the motion was property dismissed without regard to the
    transitional exceptional circumstance argument, we need not consider that part
    of the trial judges analysis.

[13]

The conviction appeal is
    dismissed.

The Sentence Appeal

[14]

Counsel for the appellant acknowledges, and we think properly so, that
    the sentence imposed was within the range of sentences recognized by this court
    as appropriate for large-scale criminal frauds. Counsel submits, however, that
    the trial judge made a factual error in respect of the timing of certain
    professional accreditations obtained by the appellant. Counsel points out that
    these credentials were obtained after the fraud and that the trial judge erroneously
    found that they were used in the commission of the fraud. The trial judge went
    on to treat this as an aggravating factor.

[15]

It
    would appear that the trial judge made the factual error identified by counsel.
    However, that error was not material to the determination of the ultimate
    sentence. These were serious frauds, ending only with the arrest of the appellant
    and others. The sentence was fit and we would not interfere. Leave to appeal
    sentence is granted and the appeal is dismissed.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mehedi, 2019 ONCA 387

DATE: 20190510

DOCKET: C66009

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Moving Party

and

Golam Mehedi

Appellant/Responding Party

Golam Mehedi, in person

Karen Papdopoulos, for the moving party

Heard: in writing

On appeal from the judgment of
    Justice Anne London-Weinstein of the Superior Court of Justice, dated October
    11, 2018, dismissing an application for certiorari setting aside the order of
    Justice of the Peace Donald Buchanan of the Ontario Court of Justice, refusing
    to issue process.

REASONS FOR DECISION

[1]

In an application in writing directed to the Registrar, the Crown seeks
    an order under s. 685 of the
Criminal Code
summarily dismissing Mr.
    Mehedis appeal from the order of London-Weinstein J. that dismissed Mr.
    Mehedis application for
certiorari
from the order of a Justice of the
    Peace that refused to issue process on an information that Mr. Mehedi had laid
    before the justice.

[2]

The Crowns request was directed to a panel of this court for
    determination. We have reviewed the material filed by Mr. Mehedi on his appeal
    including his factum. We have also reviewed the written request of the Crown
    under s. 685(1).

[3]

Section 685(1) reads:

Where it appears to the registrar that a notice of
    appeal, which purports to be on a ground of appeal that involves a question of
    law alone, does not show a substantial ground of appeal, the registrar may
    refer the appeal to the court of appeal for summary determination, and, where
    an appeal is referred under this section, the court of appeal may, if it
    considers that the appeal is frivolous or vexatious and can be determined
    without being adjourned for a full hearing, dismiss the appeal summarily,
    without calling on any person to attend the hearing or to appear for the
    respondent on the hearing.

[4]

We are satisfied that s. 685(1) applies to Mr. Mehedis appeal. Mr.
    Mehedi continually states, in his grounds of appeal, that the
certiorari
judge erred in law in various different ways. While he does allude to certain
    factual matters in his grounds of appeal, the thrust of his complaint with the
    decision of the
certiorari
judge is that she erred in law in
    dismissing his application. Thus, s. 685(1) is properly invoked.

[5]

In our view, this appeal should be summarily dismissed for three
    reasons.

[6]

First, the appeal is, on its face, frivolous, this is to say, it is completely
    devoid of merit. The issues raised by Mr. Mehedi were fully canvassed by the
certiorari
judge. None of Mr. Mehedis complaints regarding the decision of the
certiorari
judge demonstrate any error of law.

[7]

Second, on March 20, 2019, Molloy J. found Mr. Mehedi to be a vexatious
    litigant. She ordered that he be enjoined from instituting or continuing any
    proceedings in any Superior Court in Ontario for review of lower court
    proceedings or Crown action with respect to any private criminal information,
    except with leave of a judge of the Superior Court of Justice. Mr. Mehedi has a
    history of attempting to institute private prosecutions. Molloy J. expressly
    included in her order that the term any Superior Court in Ontario included
    the Court of Appeal for Ontario. Mr. Mehedi had not obtained an order of a
    Superior Court judge granting him leave to continue with this appeal.
[1]

[8]

Third, Mr. Mehedi contends, in his Notice of Appeal, that the underlying
    application was not one for
certiorari
but, rather, says that it was a
    summary conviction appeal. This is clearly not the case. The offences alleged
    are hybrid offences. Under s. 34(1)(a) of the
Interpretation Act
, R.S.C.,
    1985, c. I-21, they are deemed to be indictable unless and until a contrary
    election of mode of procedure is made. As the informant, Mr. Mehedi, has no
    right of appeal to this court. We would observe that, even if Mr. Mehedi were
    correct in his contention, that this is a summary conviction appeal, then he
    does not have a right of appeal to this court. Rather, he requires leave to
    appeal which he neither sought nor obtained.

[9]

For these reasons, this appeal is dismissed.

David Watt J.A.
G. Pardu J.A.
I.V.B. Nordheimer J.A.

[1]

In relying on this ground, we do not comment on the
    jurisdiction of Molloy J. to make the order that she did:
Ontario v. Strang
,
    2018 ONCA 844. However, unless and until that order is successfully appealed,
    and reversed, it remains an order of the Superior Court of Justice that Mr.
    Mehedi is required to obey.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Menezes, 2019 ONCA 384

DATE: 20190508

DOCKET: C66673

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Menezes

Appellant

David Menezes, in person

Louis P. Strezos, duty counsel

Andrew Hotke, for the respondent

Heard: May 7, 2019

On appeal from the sentence imposed on January 16, 2019
    by Justice Richard Blouin of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appeal is dismissed as abandoned, on the basis that the St. Lawrence
    Valley Correctional and Treatment Centre has communicated that it will receive
    the appellant immediately as he continues to serve his sentence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Praljak, 2019 ONCA 394

DATE: 20190513

DOCKET: C61244

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mladen Praljak

Appellant

Mladen Praljak, in person

Michael Dineen and Svibor Gamulin,
amicus curiae

John Patton, for the respondent

Heard and released orally: May 8, 2019

On appeal from the conviction entered on October 10, 2012
    and the sentence imposed on January 14, 2013 by Justice Michael R. Dambrot of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of the second degree murder of his wife. The
    wifes mother, who lived with the couple, testified that she heard her daughter
    scream, ran to see what was happening and found her lying on the floor with
    three stab wounds to her torso. The appellant was holding a knife by the
    kitchen sink. After the mother left to phone 911, the appellant cut his wrists
    causing life-threatening injuries.

[2]

At trial, the theory of the Crown was that the appellant attempted to
    carry out a planned murder/suicide. The defence advanced at trial, at which the
    appellant did not testify or call evidence, was that an unknown assailant had
    gained access to the house and stabbed the victim before the appellant
    discovered her.

[3]

The appellant was sentenced to life imprisonment with parole
    ineligibility of 15 years. He appeals his conviction and sentence.

[4]

Amicus
, on behalf of the appellant, submits that the trial
    judge failed to properly answer a question from the jury about the mental state
    required for murder, did not provide adequate instruction about what to make of
    the appellants apparent suicide attempt, and that his instructions as a whole
    were unbalanced.

[5]

We would not give effect to these submissions. Jury instructions must be
    understood as a whole in the context of the evidence at trial and the positions
    the parties took at trial.

[6]

In this light, we are not persuaded the trial judge made any reversible
    error in responding to the jurys question. The trial judge engaged counsel in
    fashioning his response and defence counsel agreed with the answer the trial
    judge proposed to give. The answer that was given was correct in the context of
    the evidence at trial. We are satisfied that the standard stated in paragraph
    65 of
R v. Walle
, 2012 SCC 41, was met. At the end of the day, the
    jury was properly instructed about the mental state required for murder and was
    made to understand in clear terms that, in assessing the specific intent for
    murder, it should consider the whole of the evidence that could realistically
    bear on the accuseds mental state at the time of the alleged offence. The
    trial judge alerted the jury to the pertinent evidence and the amount of detail
    he provided was a matter for his discretion.

[7]

The trial judges instructions about the appellants post offence
    conduct and his suicide attempt were adequate considered in the context of this
    trial and the positions of the parties. The trial judge reviewed his proposed
    instructions with counsel before delivering them. Defence counsel made no
    objection at trial. Any additional instruction about the suicide would also
    have had to address the inferences that supported the Crowns theory that this
    was a planned murder/suicide.

[8]

Finally, we are not persuaded the instructions were unbalanced. As the
    trial judge noted, an accurate review of the evidence at trial would
    necessarily reflect the fact that the Crown had called all the evidence at
    trial. The trial judge did highlight the defences arguments, included that
    relating to the trail of blood leading out the door, which
amicus
highlighted. The trial judge was entitled to ensure the jury understood all the
    evidence relating to that and all other issues.

[9]

The appellant advanced separate submissions on this appeal. Some were in
    the nature of giving evidence that he could have given at trial. The main
    thrust of his argument, however, was to question the integrity of the evidence
    and the exhibits introduced at trial, which he claims were tampered with. The
    materials filed in the Crowns supplementary appeal book make apparent that the
    appellants claims are entirely baseless.

[10]

The
    appeal from conviction is dismissed.

[11]

The
    appellant did not address the sentence appeal. The factum filed indicates the
    single issue is the period of parole ineligibility. The trial judge made no
    reversible error in fixing the appellants parole ineligibility at 15 years in
    the circumstances of this case. Fifteen years of parole ineligibility falls
    within the range for domestic homicide cases.

[12]

Leave
    to appeal sentence is granted, but the appeal from sentence is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

Paul Rouleau J.A.