CITATION:
R. v.
Lakatos
, 2011 ONCA 318

DATE: 20110421

DOCKET: C52772, C52090 and C51938

COURT OF APPEAL FOR ONTARIO

Rosenberg, Juriansz and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Janos Lakatos, Ferset Mohammad and Fyad Mustafa

Appellants

Frances S. Brennan, for the appellant, Janos Lakatos

Robert C. Sheppard, for the appellant, Ferset Mohammad

Dale E. Ives, for the appellant, Fyad Mustafa

Nadia Thomas, for the respondent

Heard: April 5, 2011

On appeal from the decision of Justice Paul F. Lalonde of the
          Superior Court of Justice, dated January 28, 2010.

ENDORSEMENT

Introduction

[1]

After being tried
    together by judge alone, Fyad Mustafa was convicted of: (i) unlawful
    confinement; (ii) uttering death threats; and (iii) possession of a firearm or
    imitation firearm to commit an offence.  Ferset Mohammad and Janos Lakatos were convicted of unlawful
    confinement.  They all appeal their
    convictions and Lakatos and Mohammad seek leave to appeal their sentences.  Their appeals were heard together.

[2]

The trial judge found
    all of the civilian witnesses in this trial to be incredible.  He cautioned himself about the lack of trust
    he could have in their testimony standing alone.  This was perhaps especially true regarding
    the evidence of the complainant, Samir El-Ghafari.  As a result, he instructed himself on the
    need to find confirmatory evidence to support the testimony of the allegations
    being made.

[3]

Here the guilt of the
    appellants rested almost entirely on the testimony of El-Ghafari.  Thus, the trial judge  as he noted
    searched for evidence from another source that would provide him with the
    confidence that El-Ghafari was telling the truth in the relevant aspects of his
    account of the events.

[4]

It is in connection
    with this chain of reasoning and analysis by the trial judge, which forms the
    core of the appellants grounds of appeal.  The principal arguments are addressed in two issues: (i) whether the
    trial judge properly approached the matter of confirmatory evidence to believe
    the testimony of El-Ghafari; and (ii) whether there were inconsistent verdicts
    as between Fyad Mustafa and Janos Lakatos?

Confirmatory evidence

[5]

The appellants argue that the evidence relied on
    by the trial judge for this purpose, either taken individually or in its
    totality, could not reasonably be sufficient to restore the trial judges
    confidence that El-Ghafari was telling the truth about what happened in the
    motel room and outside the motel room on the way to Bansies house.  We disagree.

[6]

Some of the evidence
    that the trial judge relied on to enable him to trust El-Ghafaris testimony
    includes:

·

the presence of a hammer, rope and duct tape in
    the motel room;

·

rubber based adhesive residue on the chair, the
    cuffs of the complainants sweater, and a wrapper in the cars back seat of the
    type often used in duct tape;

·

red marks on the complainants face and neck,
    and red indented lines on the complainants wrists and neck;

·

Bansies description of the complainants
    behaviour when he was in the washroom in Bansies house; and

·

the
officers testimony
    that the motel room was not set up for playing cards.

[7]

It was not necessary, as the appellants argue,
    that individual items of confirmatory evidence must specifically confirm that
    the criminal conduct amounted to a forcible confinement, or that a firearm was
    used:
R.
v.
J.K.
, [2011] O.J. No. 124
    (C.A.)
.  Rather, the confirmatory
    evidence needed only to give the trial judge a basis for accepting the
    testimony of El-Ghafari regarding relevant aspects of his account of the
    events.

[8]

The trial judge was
    entitled to find, as he did, that a gun was used by Mustafa.  He found that other evidence, including that
    noted above, allowed him to believe material parts of El-Ghafaris evidence.  This included the finding that El-Ghafaris
    belief was that, in all the circumstances, it was a gun he was being threatened
    with:
R.
v.
Charbonneau
, 2004 O.J. No. 1503 (C.A.).  The evidence was sufficient to allow the
    trial judge to reach this conclusion and the finding was reasonable.

[9]

Credibility of all of
    the witnesses, as it is in any trial, was a matter for the trial judge alone to
    determine.

[10]

We would apply the
    same analysis and conclusions to the offence of unlawful confinement.

Inconsistent verdicts

[11]

The trial judge acquitted Lakatos of all
    gun-related offences and noted: I do not have any circumstantial evidence to
    back up whatever El-Ghafari had to say on these charges and thus I find that
    there is insufficient evidence to convict Mr. Lakatos on these three remaining
    charges.  Mustafa argues that this
    verdict is inconsistent with the trial judges conviction of him on the same
    firearms charges.  We disagree.

[12]

To succeed on this
    ground Mustafa must persuade this court that his conviction represents such a
    repugnant and inconsistent verdict from that of Lakatos that no reasonable
    trier of fact could have arrived at this conclusion after proper consideration
    of the facts in the case:
R
. v.
Ertel
(1987), 35 C.C.C. (3d) 398 (Ont.
    C.A.) at 426-427.

[13]

Lakatos was in a
    fundamentally different position as described in El-Ghafaris testimony about
    the use of the gun, and in respect of the additional circumstantial evidence
    supporting that testimony.  For example,
    there was no evidence that Lakatos used the gun to assault El-Ghafari in any
    way.

[14]

The trial judge
    provides a clear and rational basis for reconciling the verdicts; Mustafa, in
    our view, has not met his onus.  This
    ground of appeal must fail.

[15]

The remaining grounds
    of appeal are without merit.  The appeals
    against conviction of all three appellants are dismissed.

Sentence appeal by Lakatos and Mohammad

[16]

All three of the appellants were in essence
    treated by the trial judge as first time offenders.  The Crown asked for a sentence between four
    and five years for each of them.  Mustafa
    and Mohammed each sought a six to nine month conditional sentence including
    house arrest for half of it.  Lakatos has
    not been successful in obtaining his refugee status.  He requested a sentence of time spent in jail
     three months  at 2:1.

[17]

They were each
    sentenced to a two years less one day conditional sentence  they are subject
    to house arrest for all of that time  followed by three years probation.  The trial judge held that this sentence could
    adequately denounce and deter these serious offences, provided the total
    period of community supervision is five years, provided the house arrest
    portion is punitive and long and encompasses the entire conditional sentence
    period set at the maximum allowable period.

[18]

Neither Lakatos nor
    Mohammad claim that their sentences are unfit or outside the appropriate range
    for similar offences and offenders.  Rather, they each argue that their lesser role in the offences warranted
    sentences that were less than they received.  Mohammad says his should be half that imposed on Mustafa; he seeks a
    12-month conditional sentence.  Lakatos,
    on the same basis, seeks a reduction in his sentence to that of time served.

[19]

The trial judge
    carefully reviewed the level of culpability of each of the appellants and
    weighed all the mitigating and aggravating factors.  He ultimately crafted sentences, including
    periods of probation for each, which he found would mirror many of the
    conditions already imposed as part of the conditional sentence.

[20]

We can find no error
    in principle with respect to the trial judges decision on any of the
    sentences.  And, in that regard his
    decisions are entitled to considerable deference, particularly, as the Crown
    notes, given that the sentences are at the low end of the range for similar
    offences.  Nevertheless, there is one
    aspect of the trial judges decision in connection with Lakatos that we believe
    needs to be spoken to.

[21]

Counsel
    for Lakatos also advised the trial judge that, regardless of [the courts]
    disposition here today, Lakatos would be immediately detained by immigration
    authorities and deported to Hungary.  The
    trial judges impression of Lakatos circumstances was described by him this
    way:

The Canadian Border Services Agency is poised to
    arrest him at the expiry of his sentence.  However, it seems that if a sentence to be served in the community is
    given, he will be allowed to serve his sentence here.

[22]

However, at the time of this appeal Lakatos had
    been placed into custody by immigration authorities pending the outcome of the appeal.  This court has since been advised that
    Lakatos will remain in custody until he completes his two year less one day
    conditional sentence and then be deported to Hungary.  In other words, he will not be serving his
    sentence in the community as the trial judge believed and intended; he will be
    incarcerated.

[23]

A fit
    sentence is one that usually describes a range of appropriate sentencing
    responses:
R. v. Hamilton
(2004), 72
    O.R. (3d) 1, at para. 85.  The issue of
    deportation is a factor that can be considered in deciding the appropriate
    sentencing responses and tailoring the sentence to best fit the crime and the
    offender:
Hamilton
, at para.
    156
.
Indeed the trial judge
    believed he was doing just that, except his information and belief was
    incorrect.

[24]

We believe
    that had the trial judge been aware of the real impact of his decision
    regarding Lakatos that he would have fashioned a different sentence.  It appears to us that it would have been one
    that minimized any period of incarceration.   And, as expressed in
Hamilton
,
    had he done so, this would have been an example of the human face of the
    sentencing process:
Hamilton
, at
    para. 158.

[25]

Thus, it
    seems appropriate, and necessary to give effect to the trial judges intention,
    that Lakatos incarceration should be minimized.  We would, therefore, set aside the sentence of two years less one day
    conditional sentence and substitute it for one of time served.  In doing so Lakatos period of incarceration
    will be minimized and the Canadian Border Services Agency can carry out its
    responsibilities.

[26]

In such a
    situation, it seems to us to be entirely in keeping with the principles and
    objectives of sentencing to impose the shorter sentence.   And, while this indulgence afforded to
    Lakatos may be a relatively minor one, there is no countervailing negative
    impact on the broader societal interests occasioned by the imposition of this
    sentence:
Hamilton
at para.
    158.  Lakatos is scheduled to be deported
    to Hungary immediately upon completion of his sentence.

[27]

For these
    reasons,
We
would grant leave to appeal the sentences
    of Lakatos and Mohammad.  We would,
    however, dismiss the appeal by Mohammad.  As for Lakatos,   We would set aside the conditional sentence
    imposed by the trial judge and replace it with a sentence of time served.

M.
    Rosenberg J.A.

R.G.
    Juriansz J.A.

H.S. LaForme J.A.


CITATION: R. v. Loy, 2011 ONCA 340

DATE: 20110429

DOCKET: C51379

COURT OF APPEAL FOR ONTARIO

Laskin, Juriansz and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

May Loy

Appellant

Daniel C. Santoro, for the appellant

Joseph Selvaratnam, for the respondent

Heard: April 29, 2011

On appeal from the conviction
          entered on September 10, 2009 and the sentence imposed on December 9, 2009 by
          Justice William A. Gorewich of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

Ms. Loy was convicted of possession of a substantial amount of
    methamphetamine for the purpose of trafficking and was sentenced to five years
    in prison (less eight months credit for onerous bail conditions).  She appeals
    both her conviction and sentence.

[2]

On her conviction appeal, she submits that the conviction was
    unreasonable.   Alternately, she submits that the trial judge reversed the
    burden of proof.  We do not accept Ms. Loys submissions.

[3]

We accept that the trial judge slightly misstated Officer Williamsons evidence
    about where he found the purse.  However, looking at the trial judges reasons
    as a whole it is evident he found that there was only one purse, that he
    accepted Officer Williamsons evidence the drugs were in the purse, and that
    the purse belonged to Ms. Loy.  On these findings of facts and credibility, the
    verdict was reasonable.  We see no basis for the argument that the trial judge
    reversed the burden of proof.

[4]

The sentence of five years for drugs with a street value of
    approximately $200,000 was not unreasonable.

[5]

Both the conviction and sentence appeals are dismissed.


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.

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.

CITATION:
R. v. M.J., 2011
          ONCA 278

DATE:
          20110407

DOCKET: C50252

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.J.

Appellant

Craig Parry, for the appellant

Benita
Wassenaar
, for the respondent

Heard and released orally: April 6, 2011

On appeal from the finding of guilt entered on December 2,
          2008, and the disposition imposed on March 17, 2009, by Justice Margaret F.
          Woolcott of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant stood trial on an information that
    charged him with sexual interference, invitation to sexual touching and sexual
    assault.

[2]

The trial took place on a single day, December 2, 2008.
    There were two witnesses, the complainant, aged 15, and the appellant, aged 19.
    Their testimony centered on sexual activities the complainant alleged took
    place between the two boys, next-door neighbours, for several years when the
    complainant was about 10 to 13 years old and the appellant was about 14 to 17
    years old.

[3]

The trial judge rendered her decision at the conclusion
    of the trial. She convicted the appellant on all three charges. He appeals his
    conviction. He abandoned his sentence appeal.

[4]

The appellant contends that the trial judge did not
    properly apply the criminal standard of proof in this case. Crucial components
    of this failure, asserts the appellant, were the trial judges treatment and
    non-treatment of serious inconsistencies between the complainants statement to
    the police and his testimony at the trial, her reasoning and lack thereof with
    respect to her rejection of the appellants testimony, and her formulation of
    her ultimate conclusion that the Crown had proved the case against the
    appellant beyond a reasonable doubt.

[5]

We admire the trial judges attempt to provide the
    parties with a comprehensive oral judgment at the end of a long trial day. We
    also recognize that an appellate court must be careful not to scrutinize too
    critically the oral reasons of a judge working in a busy trial court,
    especially when those reasons are anchored, at bottom, in her assessment of the
    credibility of only two witnesses, a youthful complainant and a youthful
    accused
who
chose to testify in his defence.

[6]

However, in the end we accept the appellants
    submissions on this appeal. The trial judges reasons, read as a whole, do not
    satisfy us that she properly applied the criminal standard of proof in this
    case.

[7]

The trial judge acknowledged that there were
    inconsistencies between the complainants police statement and his trial
    testimony. The complainant told the police that the sexual activities occurred 7
    or 8 or 25 or 30 times. He testified that they took place every time the boys
    met, hundreds of times. In his testimony, he acknowledged that these
    descriptions were vastly different. The complainant conceded in his testimony
    that yeah, thats another guess. He said that the sexual activity both
always
and
never
occurred when the appellant was babysitting him.
    Unfortunately, the trial judge ignored many significant inconsistencies or
    stated them baldly without addressing their impact.

[8]

The trial judge also appeared to treat the appellants
    testimony (we emphasize that both the complainant and the appellant were young
    people) quite critically. She said that he made cross-examination difficult
    because he asserted a blanket denial of all the alleged incidents. She stated,
    improperly, that the appellant could not give any reason why the complainant
    would have wanted to tell stories about him. She tended to inflate the
    appellants age and reduce the complainants age throughout her reasons,
    thereby creating an inaccurate age differential between the two boys.

[9]

Finally, and most importantly, the trial judges
    statement of her ultimate conclusion is, with respect, problematic. The trial
    judge was unable to find that any specific incident of abuse  relating to
    date, location or activity  actually took place. Moreover,  near the end of her reasons, she said:

I find myself in the position of not believing that
    the events  that is to say that the events vis-à-vis their frequency,
    vis-à-vis the exact details of the events, vis-à-vis always the exact location
    and the timing of the events  I find myself unable to make a finding that Mr.
    M. was accurate with respect to that. Having said that, however, I am not in a
    position of rejecting the evidence of Mr. M. when he says to me that there were
    sexual occurrences between him and Mr.
J..
And, I am
    not in a position of rejecting that those occurrences were on an ongoing basis.
    And, I am not in a position of rejecting that those occurrences included being
    touched by Mr. J., being invited by Mr. J. to touch Mr. J. and being
    sexually assaulted by Mr. J., i.e.
sodomization
.

[10]

This combination of a fairly sweeping rejection of the
    complainants evidence relating to important components of the alleged sexual
    activities and an almost half-hearted reliance on the residue of his testimony
    are not, in our view, sufficient to ground a conviction on the criminal
    standard of proof.

[11]

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

J. I. Laskin J.A.

J. C. MacPherson J.A.

Robert J. Sharpe J.A.


CITATION:
R. v.
Marquardt
, 2011
          ONCA 281

DATE: 20110408

DOCKET: C24367

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Tammy Marquardt

Appellant

James Lockyer, for the appellant

Gillian Roberts, for the respondent

Heard: February 10, 2011

On appeal from conviction for
          second degree murder entered by Justice John R. McIssac of the Superior Court
          of Justice, sitting with a jury, dated October 24, 1995, and pursuant to an
          order of the Supreme Court of Canada, dated April 30, 2009, remanding the
          case to the Court of Appeal for Ontario for consideration of the fresh
          evidence and whether the appellants conviction constitutes a miscarriage of
          justice.

By The Court:

[1]

This appeal originates in the reinvestigation of cases
    where Dr. Charles Smith had provided opinions and evidence as to the cause of
    death of children.  In 1993, the
    appellant, Tammy Marquardt, was charged with second degree murder of her two
    and a half year old son, Kenneth.  On October
    24, 1995, she was convicted of second degree murder and her appeal to this
    court was dismissed in 1998.  In 2009, as
    a result of the reinvestigation of the cases in which Dr. Smith had conducted
    the autopsy, the appellant applied for leave to appeal to the Supreme Court of
    Canada.  The application was granted and
    the case was remanded to this court for consideration of fresh evidence and
    whether the applicants conviction constitutes a miscarriage of justice.

[2]

Crown counsel agrees that much of the proposed fresh
    evidence should be admitted, the appeal allowed, the conviction quashed and a
    new trial ordered.  This is the
    disposition that the appellant sought on her appeal.  At the conclusion of oral argument we allowed
    the appeal and ordered a new trial, for reasons to follow. These are our
    reasons.

THE FACTS

Events leading up to the death

[3]

The appellant was 19 years of age when Kenneth was
    born.  By 1993, she was no longer living
    with the childs father and had begun a relationship with Rick Marquardt.  She moved in with him in September 1993.  Kenneth had several health issues including
    asthma and pneumonia.  However, the
    health issue that was to become a prominent feature of the case was the cause
    of the seizures that Kenneth suffered on several occasions.  It was the position of the defence at trial
    that Kenneth had epilepsy and that he died accidentally in the course of a
    seizure.  Prior to his death, the
    appellant took Kenneth to the hospital several times because of these
    seizures.  The last hospital attendance
    was in September 1993 when the appellant took Kenneth to Oshawa General
    Hospital.  He was then transferred to the
    Hospital for Sick Children in Toronto.

[4]

During the appellants pregnancy and thereafter, the
    appellant had several contacts with community social workers.  The Crown adduced evidence from some of these
    social workers about statements the appellant made concerning Kenneth.  For example, the appellant said that she
    occasionally experienced
blackouts, that
Kenneth was
    difficult to soothe, she imagined putting her arms around his neck, and placing
    her hand over his mouth to stop him from crying.  The appellant testified at trial that she was
    only expressing fears that she might unintentionally mishandle Kenneth arising
    from her exhaustion in caring for him.  In early 1993, Kenneth was placed in a foster home for several months at
    the request of the appellant because she was under stress and was worried she
    might hurt Kenneth.  In July 1993, the
    appellant told a supervisor at the Y.M.C.A., where she had gone to escape abuse
    from Mr. Marquardt, that she had squeezed Kenneths leg and caused a bruise.

[5]

On Saturday October 9, 1993, the appellant was home
    with Kenneth and Mr. Marquardt.  Around 8:00 a.m., Mr. Marquardt left the house in response to a call
    from a former girlfriend who was about to give birth and wanted him to be with
    her.  The appellant was alone with
    Kenneth thereafter.  The appellants
    version of events leading to the death are described as follows in her
    counsels factum:

Around 4:00 p.m., the Appellant woke up and went to
    the bathroom. She heard Kenneth calling her.  It was muffled but it sounded like Mommy, Mommy.  She called back that she would be there soon
    and finished in the bathroom.  When she
    went into the bedroom, Kenneth was rolled up in the bedding.  His head was at the foot of the bed and all
    twisted up in the sheets down to his chest.  He was tangled up and it was hard to get the sheets off him.  The Appellant was panicking.  Kenneth was saying Mommy, Mommy and she was
    saying Mommys here, its
ok,
Mommys going to get
    you out.  Then he was just saying Mom;
    it was faint and at this point she realized that there was something seriously
    wrong.  She finally untangled him from
    the bedding.  In her affidavit, she describes
    the passage of time:

When the police later asked me how long this all
    took I said about 20 minutes; that is how long it seemed to me.  For some reason, I noticed the clock in the
    bedroom said 4:33.  I later came to know
    that the 911 call was made at 4:38 so my time estimate was off; I can only say
    it seemed like an eternity as I tried to extricate Kenneth from the sheets.

Kenneth was white and he did not seem to be
    breathing.  She ran with him in her arms
    to the phone and called 911.

The Appellant tried to follow the 911 C.P.R.
    instructions but was unable to:

Q.        Why
    not?

A.        Because
    I could hardly breathe myself.

Q.        What
    do you mean you could hardly breathe yourself?

A.        I
    was crying a lot and really upset.

[6]

Emergency workers arrived at the apartment at 4:42 p.m.
    within five minutes of the call.  The appellant
    was visibly distraught.  She directed
    them to Kenneth.  He was lying motionless
    on a couch to which she had moved him.  His face was a grey-ashen colour and he was not breathing.  The appellant told the workers that he had a
    history of epilepsy.  Efforts at
    resuscitation at the apartment failed and he was transported immediately to
    Oshawa General Hospital.  He was later
    transferred to the Hospital for Sick Children.  The emergency physician who saw Kenneth was not satisfied with the
    appellants explanation for the childs condition and he asked that the
    Suspected Child Abuse and Neglect Unit become involved.  Kenneth died three days later when he was
    removed from life-support.  His liver,
    kidneys and heart valves were harvested for organ donation.

The evidence of Dr. Smith

[7]

Dr. Smith performed the autopsy.  He testified that the absence of the
    harvested organs was a minor inconvenience.  He testified that the cause of death was asphyxia which caused
    irreversible brain damage.    He defined
    asphyxia as a condition affecting the organs of the body or the body wherein
    there is impaired delivery or utilization of oxygen.  An injury occurs because either there is
    inadequate supply of oxygen or the oxygen which is present cannot be properly
    used.

[8]

Dr. Smith relied upon scattered
    petechial haemorrhages (tiny red spots) over the surfaces of Kenneths heart,
    lungs and thymus as evidence of asphyxia.  He also testified that he found microscopic haemorrhages in the small skeletal
    muscles of the neck, which he considered consistent with a non-accidental
    injury to the neck.  He further testified
    that the childs brain was extremely swollen, which was part of the
    asphyxia.  He put these findings together
    to provide this opinion to the jury:

So what Im left with in Kenneth is this: He has
    evidence of asphyxia.
I have no natural disease that explains the
    asphyxia.
I have some microscopic
    evidence of hemorrhage in his neck that would be consistent with neck injury,
    but I cant say whether that neck injury was accidental or non-accidental.  It would appear to be not a severe or
    prolonged neck injury if it was real such that we see the petechial changes in
    or around his eyes or in the region of his face.

So, what Im
    saying is that he died of asphyxia.
The asphyxia could be environmental, could be an environmental lack of
    oxygen,
could
be something like a plastic bag or a gentle
    suffocation.  It could be a neck
compression,
I cant rule that out, though I dont have
    incontrovertible evidence of that.
I
    have no evidence that he died of things like hotdogs, but then I wasnt there,
    so I cant make that statement.  [Emphasis added.]

[9]

Dr. Smith went on to testify that his findings were
    consistent with suffocation with a soft object, a pillow, a plastic bag or if
    someone held his nose and mouth closed and he was suffocated that way.  He discounted seizure as a cause of death as
    he had no evidence of that at all.  In
    particular, he testified that you dont have evidence of asphyxia from sudden
    and unexpected death in epilepsy (SUDEP).  However, he allowed that he was not an expert on this condition and the
    opinion of a pediatric neurologist would be better than his opinion on that
    issue.

[10]

Evidence was led at trial that Kenneth had had
    seizures, and that he was on medication for epilepsy:
dilantin
.  A blood test taken at the hospital indicated
    that the amount of
dilantin
in the childs body was
    below therapeutic level.  The evidence at
    trial respecting the seizures was inconsistent and two of the physicians
    testified that based on their review of the hospital records all but one of
    seven seizures suffered by Kenneth were associated with fever (febrile
    seizures).  Febrile seizure in young
    children was described at trial as a fairly mild condition, unlike epileptic
    seizures.  Dr. Logan, a pediatric
    neurologist, treated Kenneth following his admission to hospital on October 9,
    1993.  He testified that SUDEP was not
    applicable in Kenneths case.

The Appellants statements following the death

[11]

At trial, the Crown led evidence of the various
    statements the appellant made to emergency personnel, the police and hospital
    personnel.  The statements were
    consistent and were to the effect that she found Kenneth struggling in his bedclothes
    and that it took her 10 to 20 minutes to extricate him by which time he was not
    breathing.

[12]

The Crown also led evidence that two weeks after the
    death, the appellant was drinking with Mr. Marquardt and others.  According to Mr. Marquardt and the appellant,
    during the evening, she screamed several times that she had forgotten how to do
    C.P.R. and had killed Kenneth.  She asked
    to be taken to the cemetery where she kept shouting that she had killed Kenneth
    because she had forgotten how to do C.P.R.   However, contrary to the evidence of the
    appellant and Mr. Marquardt, the two other persons present testified that the
    appellant looked them in the eye and stated that she had killed Kenneth in the
    sense of an intentional killing.  They
    denied that she was simply expressing guilt over not being able to do
    C.P.R.

THE FRESH EVIDENCE

[13]

In 2005, the Chief Coroner directed a review of cases
    in which Dr. Smith had performed an autopsy or provided an opinion.  Professor Pekka Saukko of Finland was asked
    to review the appellants case.  Professor Saukko provided an opinion and later testified at the
Inquiry into Paediatric Forensic Pathology
(the
Goudge Inquiry
).  In Professor Saukkos opinion there was not
    sufficient evidence for Dr. Smith to have made the diagnosis of asphyxia.  In particular, that diagnosis could not be
    based only on petechial hemorrhages on the
heart, lungs and thymus, which
    are non-specific.  The cause of death
    should have been given as unascertained.  The other reviewing pathologists agreed with Professor Saukkos opinion.

[14]

The appellant retained Dr. Simon
    Avis, a forensic pathologist, to provide an opinion.  He agreed with Professor Saukko but, in
    addition, suggested that several possible causes of death could not be
    excluded, including SUDEP.  The Crown
    retained Dr. Christopher Milroy, also a forensic pathologist, to provide
    an opinion.  He also agreed with
    Professor Saukko that Dr. Smith had made significant mistakes and that the
    cause of death should have been described as unascertained.  He also agreed that a seizure disorder could
    not be excluded and that Dr. Smith was wrong to exclude SUDEP on purely
    pathological grounds.  At the suggestion
    of Dr. Milroy, the parties retained paediatric neurologists to provide opinions
    concerning SUDEP.  While the Crown
    submits that portions of the opinions provided by these experts, Dr. Elizabeth
    Donner (retained by the defence) and Dr. Carter Snead (retained by the Crown)
    went beyond the proper scope of expert evidence, much of the opinions are
    admissible.  Those opinions provide
    additional support for the possibility of SUDEP as a cause of death in
    Kenneths case. In particular, their analysis of the medical records supports
    the view that Kenneth had epilepsy and was not simply experiencing febrile
    seizures.

ANALYSIS

Admissibility of the Fresh Evidence

[15]

The evidence of Professor Saukko and Drs. Avis and
    Milroy is admissible as fresh evidence in this appeal.  Their evidence meets the test for fresh
    evidence as set out in
R. v. Palmer and
    Palmer
, [1980] 1 S.C.R. 759 and
Reference
    re: Truscott
(2007), 225 C.C.C. (3d) 321 (Ont. C.A.), and the test for
    expert evidence as laid down in
R. v.
    Mohan
, [1994] 2 S.C.R. 9.  The Crown
    accepts, and we agree, that this evidence is credible, reliable and could
    reasonably be expected to have affected the verdict.

[16]

The fresh evidence shows that Dr. Smith made several
    significant errors that could have misled the jury and led to a miscarriage of
    justice.
First and most importantly, the conclusion of a cause
    of death of asphyxia, based on the findings at autopsy such as petechial
    haemorrhages on the Kenneths organs and neck, was erroneous.  The fresh evidence demonstrates that petechial
    haemorrhages are non-specific findings and are not diagnostic of intentional
    suffocation as was suggested by Dr. Smith in his evidence.  The expert evidence demonstrates that the
    cause of death and manner of death, from a forensic pathologies perspective,
    are undetermined or unascertained.

[17]

Second, Dr. Smiths testimony, and particularly his use of the term
    asphyxia, was confusing and misleading.  In this regard we note the comments made by Commissioner Goudge
    concerning asphyxia in
Report of the
    Inquiry into Paediatric Forensic Pathology in Ontario
, vol. 3 (Toronto:
    Queens Printer for Ontario, 2008), at pp. 408-409:

It is clear that a pathologists opinion about the
    cause of death, if it is not carefully expressed, can be a major source of
    misunderstanding.  The best example that
    emerged from the Inquiry was the use of the term asphyxia.  Dr. Smith opined that asphyxia was the cause
    of death for a number of the cases under review.  Asphyxia, based on its Greek root, literally
    translates as stopping of the pulse.  However, the evidence at this Inquiry demonstrated that the term has
    commonly been used to mean simply that the deceased stopped breathing or was
    deprived of oxygen.  It has also been
    used frequently to denote mechanical asphyxia through the intervention of a
    third party.  The latter meaning is
    radically different from the former, in that it generally implies
    non-accidental injury.
One of the problems identified at the
    Inquiry was that Dr. Smith used the term asphyxia in inconsistent ways.  At times he used it in its more inculpatory
    sense as indicating mechanical asphyxia through the intervention of a third
    party.  At other times he used it in its
    more benign sense, although this distinction would not always be apparent to
    the police and others who received the opinions.   The situation was compounded by Dr. Smiths
    testimony.  He sometimes explained what
    asphyxia meant in ways that were, at best, confusing and nearly
    incomprehensible.
The varied
    meanings that can be given to the term asphyxia not only invite caution in its
    use but present a compelling argument to avoid its use altogether, if confusion
    and misunderstanding are to be avoided.  [Emphasis added.]

[18]

In his report, the Commissioner also referred to other
    troubling aspects of Dr. Smiths testimony in the appellants case related
    to the cause of death (see vol. 1, at p. 188):

Dr. Smith also from time to time used language in
    his testimony that was loose and unscientific.  Certain inappropriate expressions are found throughout his
    testimony.  The language of betting is
    one of them.  In Kenneths case, Dr.
    Smith testified that suffocation can occur without leaving any marks and that,
    if he were a betting man, he would say that suffocation was a better
    explanation for Kenneths death than manual or ligature strangulation.

[19]

Third, the fresh evidence suggests that the possibility the death was due
    to natural
causes,
in particular, SUDEP may not have
    been fully appreciated at the time of the trial.  Finally, it was an error for Dr. Smith to
    testify that the autopsy excluded SUDEP as a cause of death.

[20]

We are also of the view that much of the evidence of Drs. Donner and
    Snead concerning SUDEP meets the test for fresh evidence.  That evidence is helpful in understanding the
    likelihood that Kenneth had epilepsy and in understanding SUDEP.  While SUDEP as a possible cause of death was raised
    at trial, the evidence of Drs. Donner and Snead provides additional
    support for the proposition that SUDEP could not be excluded as a cause of
    death.  Their evidence, taken with the
    other expert evidence adduced on this appeal, could have left the jury with a
    reasonable doubt that the appellant caused the death of her child.

[21]

We do, however, agree with Crown counsel that some parts of the evidence
    of Drs. Donner and Snead are not admissible, in particular, the opinion of both
    experts that SUDEP was likely the cause of death.  In giving these opinions, these physicians
    went beyond their area of expertise.

The Order to be Made

[22]

The appellant agrees with Crown counsel that the
    appropriate order in this case is a new trial rather than an acquittal.  The fresh evidence completely undermines
    Dr. Smiths evidence to the effect that Kenneths death was caused by
    asphyxia and his suggestion that the most likely mechanism was manual
    strangulation and suffocation.  The
    pathological evidence now, at best, would classify the cause of death as
    unascertained.  The evidence of the
    paediatric neurologists, together with a better understanding of Kenneths
    history, suggests that SUDEP cannot be excluded as the cause of death.

[23]

However, as Crown counsel pointed out at the hearing of
    the appeal, there was other evidence in this case, including the statements
    made by the appellant before and after the death and her description of the
    events leading up to the death.  Some
    parts of that description could be found to be inconsistent with SUDEP as a
    cause of death.  That said
,
it would be open to the jury to accept the appellants
    explanations for her statements.  And,
    the expert evidence could, as we have said, raise a reasonable doubt as to the
    cause of death.  These are questions for
    a jury.

DISPOSITION

[24]

We conclude by returning to the order of the
    Supreme Court of Canada that remitted the case to this court.  The Supreme Court asked this court to
    consider the fresh evidence and whether the applicants conviction constitutes
    a miscarriage of justice.
It is manifestly in the
    interests of justice that the fresh evidence be admitted on this appeal since
    that evidence demonstrates that the appellants conviction constitutes a
    miscarriage of justice.  As we said at the
    hearing of the appeal, it is tragic that it has taken so long to uncover the
    flawed pathological evidence that so clearly contributed to the appellants
    conviction in 1995.

[25]

Accordingly, the fresh evidence, to the extent
    explained above, is admitted, the appeal is allowed, the conviction for murder
    set aside and a new trial order.

[26]

Finally, we wish to express our thanks to counsel for
    Ms. Marquardt and the respondent Crown for their assistance in this extremely
    difficult and complex case.

Signed:           M.
    Rosenberg J.A.

Robert J. Sharpe J.A.

David
    Watt J.A.

RELEASED: MR April 8, 2011


CITATION:
R. v. Mohamed, 2011
          ONCA 260

DATE:  20110405

DOCKET: C48749 and C49202

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Rosenberg and Goudge JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Abdi Omar Mohamed and Mohamed Hassan

Appellants

Apple Newton-Smith, for the appellant Abdi Omar Mohamed

Timothy Breen and Diana
Lumba
, for
          the appellant Mohamed Hassan

Lucy
Cecchetto
, for the respondent

Heard: February 22 and 23, 2011

On appeal from the convictions for second degree murder
          entered by Justice Todd Ducharme of the Superior Court of Justice, sitting
          with a jury, dated December 20, 2007 and sentences imposed on April 24, 2008.

By the Court:

[1]

The appellants Abdi Mohamed and Mohamed Hassan appeal
    from their conviction by a court composed of T. Ducharme J. and a jury on a
    charge of second degree murder.  For the
    following reasons the appeals are dismissed.

THE FACTS

[2]

On August 19, 2004, the victim, Ahmed Ali, was stabbed
    to death in a Toronto apartment following a brief argument.  In all, there were eight persons in the
    apartment at the time.  Most of them had
    been drinking for several hours.  Only
    one person, Yasmin Kamil, claimed to have actually witnessed the stabbing.  The appellants, who are brothers, did not
    testify.

[3]

The argument that led to the killing began when Mohamed
    demanded that another of the occupants give him his do-rag.  When the deceased intervened, Mohamed slapped
    him and then went out to the balcony.  The
    deceased began throwing beer bottles in Mohameds direction but none of them
    hit him.  Hassan and Ms. Kamil intervened
    to stop the deceased from throwing the bottles.  A fight then broke out between Hassan and the deceased.  The fight began in the living room but
    continued into a short hallway leading to the entrance door.  According to Ms.
Kamil
,
    the fight ended with Hassan and the deceased lying on the hallway floor
    apparently exhausted.  Hassan had a wound
    to his forearm.  The deceased was on the
    floor on his knees, facing the entrance door.  The deceased had a serious wound to his head. The floor of the apartment
    was littered with broken glass.

[4]

According to Ms.
Kamil
,
    Mohamed then came in from the balcony and stabbed the deceased several times in
    the back.  She did not see Hassan stab
    the deceased and did not see him with a weapon.  The appellants fled the apartment. However, Hassan briefly returned,
    stuck his head in the door and said thats how we do it.  The police recovered a knife with the
    deceaseds blood on it in a nearby park. Immediately after the killing, the
    appellants purchased bus tickets to Edmonton. They were arrested several hours
    later in Thunder Bay.

[5]

In all, the deceased sustained 31 sharp force
    injuries.  The most serious wounds,
    described by the pathologist as medically significant in that each alone
    could have caused death, were three deep wounds to the torso, one to the back
    and one to the head.  The most serious of
    the wounds to the torso was a deep wound to the heart.  The other two serious wounds to the torso cut
    the liver and the spleen.  There was a
    medically significant wound to the right side of the back and a deep injury
    extending through the thickness of the scalp and muscles to the surface of the
    bony skull.  There were a number of other
    sharp force injuries to the torso, face, head and upper limbs.  The deceased had defensive wounds to his hands.  The pathologist could not say what caused the
    injuries other than that they were caused by a cutting instrument with a sharp
    edge and a blunt edge.  The ultimate
    cause of death was blood loss.

[6]

Mohameds defence was a simple denial that he stabbed
    the deceased, although the trial judge put to the jury that they could find
    Mohamed was acting in defence of Hassan.  Counsel for Mohamed also sought to have the trial judge put provocation
    to the jury.  Hassan also denied stabbing
    the victim and he relied on Ms.
Kamils
testimony,
    since, as indicated, she saw only Mohamed stab the victim.

MOHAMEDS GROUNDS OF APPEAL

1.        The Answer to the Jurys Question
    Regarding Consensual Fight

[7]

During a break in the charge to the jury, the jury sent
    three questions to the trial judge, two of which were as follows:

Are we to understand/accept as fact/evidence that
    Abdi Mohamed sought to (a) defend his brother from an unlawful assault to the
    exclusion of (b) a consensual fight?

Is the jury permitted to interpret the nature of
    the initial conflict?

[8]

By this time, the trial judge had charged the jury on
    the defence of others under s. 37 of the
Criminal Code
, R.S.C. 1985,
c
. C-46.  In those directions, the trial judge had
    correctly broken down the elements of the s. 37 defence and told the jury that
    the first question they had to consider was whether Mohamed reasonably believed
    that Hassan was being unlawfully assaulted.  The trial judge had directed the jury as follows:

An unlawful assault is the intentional application
    of force, directly or indirectly, by any means, to the body of another person
    without the other persons consent. It does not matter whether Mohamed Hassan
    provoked the assault or even assaulted Mr. Ali first, nor is it necessary that
    Mohamed Hassan was actually assaulted, provided that Abdi Mohamed reasonably
    believed that Mohamed Hassan was being unlawfully assaulted.

[9]

While the trial judge initially interpreted the first
    question as relating to the initial fight between the deceased and Hassan, by
    the time he came to answer the question he seems to have viewed the question as
    relating to Mohameds actions in relation to the deceased.  He told the jury as follows:

With respect to the issue of whether you have to
    accept that Abdi Mohamed sought to defend his brother from an unlawful assault
    as opposed to a consensual fight, thats a good question, because it focuses on
    an important question you have to consider in terms of the justification of
    self-defence of others. And thats question  under Question 3B, which is, Did
    Abdi Mohamed use force to defend Mohamed Hassan from what he reasonably
    believed was an unlawful assault, as I told you, that focuses on the purpose
    with which Abdi Mohamed acted. If he acted to protect his brother, you continue
    on. If it was a consensual fight, if he just decided that he was going to fight
    Mr. Ali, then he did not have the intent to protect his brother.

Now, keep in mind, dont confuse, if you decide
    you dont want to conflate the two issues in the sense that if Mr. Ali decides
    to fight or  sorry. If Abdi Mohamed decides to fight Mr. Ali, that doesnt
    necessarily make it a consensual fight. You have to consider why hes doing
    that. If hes doing it to protect his brother, thats the issue.

[10]

The trial judge immediately then excused the jury at
    the request of Mohameds trial counsel (not Ms. Newton-Smith).  Trial counsel objected to one aspect of the
    trial judges answer because, in summarizing the Crown and defence positions,
    he had suggested that defence counsels position was that Mohamed was acting to
    protect his brother.  Defence counsels
    objection was to suggest that his position was that Mohamed was acting to
    defend his brother when in fact Mohameds defence was a complete denial that he
    stabbed the victim.  When the jury
    returned, the trial judge clarified defence counsels position.  Defence counsel raised no objection to the
    trial judges answer to the question about the consensual fight.

[11]

On appeal, Mohamed now submits that, in answering the
    question, the trial judge erred in failing to focus on the initial fight
    between the deceased and Hassan and to define for the jury the difference
    between an unlawful assault and a consensual fight.  In particular, counsel submits that the trial
    judge should have instructed the jury that, as a matter of law, individuals cannot
    legally consent to an assault causing serious hurt or non-trivial bodily
    harm.  Thus, counsel does not submit that
    the trial judges instructions were legally wrong, but rather the trial judge
    erred in failing to introduce into the jurys deliberation another issue, namely,
    the definition of a consensual fight.

[12]

We would not give effect to this submission.  The trial judges answer to the question
    refocused the jurys attention to Mohameds intent in stabbing the deceased and,
    in particular, whether he was acting to protect his brother.  The s. 37 defence was a weak one at
    best.  By the time Mohamed stabbed the
    deceased, the fight with Hassan was over and there was no evidence that Hassan
    was in fact in any danger.  The only
    possible way that Mohamed could rely on the s. 37 defence was if the jury had a
    reasonable doubt that he was using force because he reasonably believed Hassan
    was being unlawfully assaulted.  A
    diversion into issues about whether in fact the fight between Hassan and the
    deceased could have been consensual would not have assisted Mohamed.

2.         Failure
    to Leave Provocation

[13]

Although, as indicated, Mohameds defence was a
    complete denial, his counsel nevertheless urged the trial judge to put the defence
    of provocation to the jury on the basis that the deceased had thrown beer
    bottles in Mohameds direction.  The
    trial judge held that there was no air of reality to provocation.  On appeal, counsel submits that there was an
    air of reality to provocation based on the throwing of the beer bottles and the
    fight between the deceased and Hassan.  We agree with the trial judge that there was no air of reality to
    provocation.  In
R. v. Tran
(2010), 261 C.C.C. (3d) 435 (S.C.C.),
    at
para
. 23, Charron J. adopted the following summary
    of the elements of the provocation defence:

First, there must be a wrongful act or insult of
    such a nature that it is sufficient to deprive an ordinary person of the power
    of self-control as the objective element. Second, the subjective element
    requires that the accused act upon that insult on the sudden and before there
    was time for his passion to cool.

[14]

There was simply no evidence of a wrongful act or
    insult sufficient to deprive an ordinary person of self-control.  While the deceased may have thrown beer
    bottles in Mohameds direction, he was not hit or injured in any way.  He went out to the balcony and did not
    respond to the incident.  It is unclear
    how the fight between Hassan and the deceased could amount to a wrongful act or
    insult that was sudden and unexpected and would have deprived an ordinary
    person of self-control.  Mohamed had
    started the incident by slapping the deceased, but he then left the area.  When he returned, the fight was over.  The element of acting on the sudden in
    response to a wrongful act or insult is simply missing.

3.         Rolled-up
    Charge

[15]

Mohamed submits that the trial judge did not
    sufficiently direct the jury on the issue of intent for murder.  Counsel submits that even if provocation was
    not available as a defence, the various acts such as the throwing of the beer
    bottles and the fight with Hassan were relevant to the question of intent and
    should have been rolled-in to the charge on intent.  Counsel submits that these incidents could
    have clouded Mohameds judgment and caused him to act instinctively without considering
    the consequences of his actions.

[16]

In our view, the charge to the jury on intent was
    correct and sufficiently alerted the jury to the need to consider all the
    circumstances in deciding whether the appellant had the requisite intent for
    murder.  The trial judge told the jury to
    consider all of the evidence in dealing with the question of intent.  While he focused particularly on alcohol
    consumption as that might affect the question of intent, he did not do so to
    the exclusion of other relevant factors.  For example, the trial judge told the jury to consider how the fight
    started, the description of the fight and the speed with which the events
    occurred.  The following passage, near
    the end of the directions on intent, specifically dealt with the question of
    whether Mohamed acted instinctively:

And again, I remind you, Yasmin Kamil described
    Abdi Mohameds involvement as happening very suddenly and taking place very
    quickly.

You should consider this evidence, not just with
    respect to intoxication, but along with other evidence that might suggest that
    either Abdi Mohamed or Mohamed Hassan acted instinctively in the sudden
    excitement of the moment, without thinking of the consequences of what he did,
    and without either state of mind necessary to make the unlawful killing of
    Ahmed Ali murder.

If you have a reasonable doubt about either Mr.
    Mohamed -- Mr. Abdi Mohameds or Mr. Mohamed Hassans state of mind, you must
    not conclude he intended or meant to bring about the predictable consequences
    of what he did.

If, after taking into account the evidence of the
    consumption of alcohol, along with the rest of the evidence, you are not
    satisfied beyond a reasonable doubt that Abdi Mohamed had the required state of
    mind for second degree murder, you must find him not guilty of second degree
    murder but guilty of manslaughter. Your deliberations with respect to him would
    be over.

[17]

The purpose of the so-called rolled-up charge is to
    alert the jury to the need to consider all of the evidence that may be relevant
    to intent, and not to compartmentalize the evidence by restricting it to
    defences such as self-defence or provocation.  The concern that the jury will compartmentalize the evidence is greatest
    where a discrete defence has been left to the jury.  The danger is that the jury having rejected a
    defence, such as provocation, may fail to again consider the provocation
    evidence when dealing with the issue of intent.

[18]

In this case, however, provocation was not left to the
    jury as a separate defence and the trial judge did tell the jury to consider
    all of the circumstances, including whether the appellant acted instinctively
    in the sudden excitement of the moment.  There could be no concern that the jury would not consider all of the
    circumstances in the face of explicit and repeated instructions to do so.  Provocation not having been left to the jury
    as a discrete defence, there was no need for the trial judge to refer to
    provocation or provocative acts as an element of a rolled-up charge; what was
    required was a reference to the need to consider the evidence and how that
    might affect Mohameds state of mind.  The charge to the jury did that.

[19]

Accordingly, Mohameds appeal from conviction is dismissed.

HASSANS GROUNDS OF APPEAL

1.         The
    Crowns Jury Address

[20]

The trial judge ruled that he would not instruct the
    jury that Hassan could be guilty of murder on the basis that he was a party to
    a killing by Mohamed.  Hassan submits,
    however, that the trial judge erred in failing to correct a portion of the
    Crowns jury address where he invited the jury to convict Hassan on the basis
    of party liability.  We do not agree with
    this characterization of the Crowns jury address.  The Crowns position was that both accused
    were responsible for the killing.  Crown
    counsel was entitled to rely on the
accuseds
 acts,
    including the acts that they did together such as fleeing the scene together
    and Hassans statement to the occupants of the apartment:  thats how we do it.  That comment was a particularly damning piece
    of evidence against Hassan and Crown counsel was careful to remind the jury
    that it was evidence against only Hassan.  He did not attempt to leverage the comment into an admission of party
    liability.  As Crown counsel said:

Im only asking you to consider what it tells you
    about what Mohamed Hassans attitude was about what he did and his own
    understanding of his own action in the context of what he did and what he must
    have observed his brother doing.  At the
    very least, it shows Mr. Hassan acknowledged participating in what had just
    happened, and in view of his own conduct as taken quickly with his brother.

[21]

This was an entirely appropriate comment by Crown
    counsel and in no way suggested that Hassan was liable for murder simply as a
    party.  In his charge to the jury, the
    trial judge told the jury that they had to determine the individual liability
    of each accused.  There was no suggestion
    of party liability.  We would not give
    effect to this ground of appeal.

2.         Causation

[22]

Hassan submits that, since he could not be convicted as
    a party to the offence, the Crown had to establish that his own acts caused the
    death of the deceased.  He submits that
    the trial judge had to direct the jury that they could find that Mohameds acts
    of stabbing the deceased were intervening acts breaking the chain of causation
    from the acts of Hassan.  In our view,
    the charge to the jury was sufficient.  The trial judge directed the jury as follows concerning the need for
    proof of causation:

Now, for an act to cause someones death, it must
    be a significant contributing cause of death.
There must not be anything that
    somebody else does later that results in the acts of either Abdi Mohamed or
    Mohamed Hassan no longer being a contributing cause of Mr. Alis death.
It is of no concern to you that proper
    medical treatment might have saved Mr. Alis life.  [Emphasis added.]

[23]

Trial counsel for Mr. Hassan, not Mr. Breen, did not
    object to the charge to the jury on causation.  In any event, intervening act was not a real issue in the case.  The deceased suffered over 30 wounds.  He died from loss of blood caused by multiple
    sharp force injuries.  The testimony from
    Ms. Kamil, which was so central to Hassans defence, described only injuries
    inflicted by Mohamed to the deceaseds back.  Her testimony did not account for the serious wounds to the torso,
    including the deep wound to the heart.  This was not a case calling for an explicit direction on intervening act
    beyond the correct instructions set out above.  The intentional acts of both accused in stabbing the deceased were
    significant contributing causes of death through loss of blood.

3.         Self-defence

[24]

Hassan submits that the trial judge erred in failing to
    leave self-defence to the jury.  We agree
    with the trial judge that there was no air of reality to self-defence on
    Hassans part.  There was no evidence
    from any witness from which it could be found that Hassan stabbed the deceased
    in self-defence.  And, there was nothing
    in the circumstances that could raise a reasonable doubt that Hassan stabbed
    the deceased in self-defence.  There was
    no evidence that Hassan stabbed the wounded victim to defend himself.

4.         The Jurys Question about Yasmin Kamils
    Evidence

[25]

During their deliberations, the jury asked the
    following question:

At one point [
Yasmin

Kamil
] made a statement that nobody stabbed anybody except
    the two brothers. That is what I want to tell you. This statement was either
    made to the police or at the preliminary trial. When asked during the
    examination or cross-examination did she accept saying the statement? Does she
    acknowledge making this statement? Does she acknowledge that this was true? If
    not, what does she change the statement to?

[26]

The trial judge responded to the question by repeating
    verbatim the portion of Ms. Kamils evidence to which the jury was
    referring, which arose in re-examination.  He concluded his review of the re-examination with this part of Ms.
    Kamils evidence:

What I mean is that three people involved in the
    fighting, two of them were boxing each other, struggling in all this, a
nd the other one stabbed and killed
.  [Emphasis added.]

[27]

Given Ms. Kamils evidence, the jury could have no
    doubt that her reference to the other one stabbed and killed was to Mohamed,
    not Hassan.  The trial judge then directed
    the jury as follows:

So returning to your question, obviously Yasmin
    Kamil did acknowledge making the statement, and there is no issue that the
    question -- the statement you asked about was made to the police at 11:18 on
    the evening of these events.

You asked,
Does
she accept
    that this was true?

She was not asked whether or not this statement was
    true, and as it came out in re-examination, there was no opportunity for her to
    be cross-examined about it.

You asked,
If
not, what
    does she change the statement to?

Now, given that she wasnt asked if it was true,
    the if not doesnt arise, but given that youve asked about changes to her
    testimony, I think I should review with you the inconsistencies in her
    statements about this and what she said about those.

[28]

The trial judge then dealt at length with some of the
    inconsistencies with Ms. Kamils evidence in a way that was favourable to
    Hassan, concluding by reminding the jury that Ms. Kamil testified that she did
    not see a weapon in Hassans hands at any point during his fight with the
    deceased.  Hassan submits, however, that
    the trial judge should have instructed the jury that while Ms.
Kamil
acknowledged making the statement, she did not adopt
    the statement as true in the sense of saying that she had seen both brothers
    stab the deceased.

[29]

We would not give effect to this submission.  The trial judge was bound by the evidentiary
    record.  In the charge to the jury, the
    trial judge had correctly instructed the jury about the use of prior
    inconsistent statements.  In his answer
    to the jurys question, he correctly set out the portion of the testimony that
    related to the jurys question and, in fairness to Hassan, went on to remind
    the jury about her testimony concerning whether Hassan had a weapon.  There was nothing more the trial judge could
    do or should have done.

[30]

Accordingly, Hassans appeal from conviction is
    dismissed.

Signed: Winkler C.J.O.

M.
    Rosenberg J.A.

S.T.
    Goudge J.A.

RELEASED: WW April 5, 2011


CITATION:
R. v.
Nilsen
, 2011 ONCA 322

DATE: 20110427

DOCKET: C48387

COURT OF APPEAL FOR ONTARIO

Rosenberg, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Sandra
Nilsen

Appellant

Sandra
Nilsen
, in person

Geoffrey
Uyeno
, for the respondent

Heard: April 12, 2011

ENDORSEMENT

[1]

At the conclusion of the appellants oral argument in
    this case, we indicated that we did not need to hear from the prosecutor and
    that the appeal was dismissed, with reasons to follow.  These are those reasons.

[2]

The appellant appeals from the decision of Trafford J.
    dismissing her application for
certiorari
to quash her convictions for offences of dog running at large contrary to a
    City of Toronto By-law and fail to exercise reasonable precautions to prevent
    the dog from biting or attacking another domestic animal and being owner of a
    dog that bit or attacked another domestic animal both contrary to the
Dog Owners Liability Act.
Trafford J. held that
certiorari
was not available and that the appellant should have
    pursued her appeal rights under the
Provincial
    Offences Act
to the Provincial Offences Appeal Court.  We agree with that decision.  Section 141(3) of that Act provides:  No application shall be made to quash a
    conviction, order or ruling from which an appeal is provided by this Act,
    whether subject to leave or otherwise.  That provision makes it clear that
certiorari
is not available in these circumstances and that the appellant was required to
    pursue her appeal remedies.

[3]

All of the issues that the appellant attempted to raise
    before Trafford J. and again in this court could be raised by way of appeal
    including her complaints about the conduct of the prosecutor, the conduct of
    the justice of the peace, the validity of the
informations
,
    the allegations concerning the transcript, the sufficiency of the evidence and
    the amount of the penalties.  Other
    complaints by the appellant that she claims go to jurisdiction of the
    provincial offence court are without merit.  In particular, her claim that she was not properly served, that the city
    official did not have the authority to swear the information, and that city
    officials trespassed on her property did not affect the courts
    jurisdiction.  Finally, there is no merit
    to the appellants claim of illegal merger.  The justice of the peace had jurisdiction to try the offences.  That there may have been other orders made,
    such as the interim order of July 25, 2005, did not affect the jurisdiction of
    the trial court.

Signed:           M.
    Rosenberg J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.


CITATION:
R. v. Pham, 2011
          ONCA 271

DATE: 20110407

DOCKET: C50881

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Appellant

and

Nghia

Dinh
Pham

Respondent

Kevin Wilson, for the appellant

Kim Schofield, for the respondent

Heard and endorsed: April 1, 2011

On appeal against acquittal by Justice Brent Knazan of the
          Ontario Court of Justice dated July 13, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The question of whether a person has a reasonable
    expectation of privacy for purposes of s. 8 of the
Charter i
s context driven.

[2]

In this case, the respondent was in the premises at the
    time of the search and the trial judge found that in the context of his
    baby-sitting duties, he had possession and control and the ability to admit or
    exclude others from the premises. In our view, that finding was open to him and
    we see no basis for interfering with it or the conclusion flowing from it that
    the respondent had the necessary standing to attack the search warrant.

[3]

At trial, the Crown conceded a breach of s. 8 in
    relation to the adequacy of the search warrant. As this was a pre-
Grant
case, the trial judge applied the
Collins
test in his 24(2) analysis.

[4]

In doing so, he failed to make clear findings as to
    where the police conduct fell on the continuum of misconduct scale, as
    described in cases such as
R. v. Blake
,
    2010 ONCA 1 at para. 23.  In addition, he
    failed to make findings that address the impact of the breach on the
    respondents
Charter
protected
    interests.

[5]

In view of this, we are unable to carry out the
    analysis now required by
Grant
.

[6]

Accordingly, we would allow the appeal, set aside the
    verdict of acquittal and order a new trial.


WARNING

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

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

provide
:

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

(a)
any
of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION:
R. v. R.B., 2011
          ONCA 328

DATE: 20110427

DOCKET: C45738

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. B.

Appellant

Dirk
Derstine
and Daniel Stein, for
          the appellant

Dena Bonnet and Lisa
Joyal
, for the
          respondent

Heard:  March 8, 2011

On appeal from the conviction entered by Justice Robert M. Thompson
          of the Superior Court of Justice, dated December 10, 2002 and from the
          sentence imposed by Justice Thompson, dated June 30, 2006.

By the Court:

[1]

The appellant appeals his conviction and sentence. Following
    a jury trial, the appellant was convicted of two counts of historical sexual
    assault and sentenced to an indeterminate period of incarceration as a
    dangerous offender.

Conviction Appeal

[2]

In oral argument, the appellant focussed on the
    sentence appeal. Counsel relied upon the factum with respect to the appeal
    against conviction. We dismiss that appeal for the following reasons.

[3]

The trial judge did not err in admitting the facts read in on the
    appellants guilty pleas in relation to sexual offences against five other boys
    as similar fact evidence. The evidence was properly admissible to prove that
    the sexual assaults occurred. Although his reasons for concluding that the
    probative value of this evidence outweighed its prejudicial effect were
    limited, his ruling was not undermined by any legal error o
r
    misapprehension of material evidence and was not unreasonable.

[4]

The trial judge also did not err in admitting reply
    evidence by the Crown. The appellant raised the defence of alibi for the first
    time during his testimony. Given the late notice and expansive nature of the
    alibi defence, the Crown had no option but to call rebuttal evidence and did
    not improperly split its case by leading evidence that directly supported the
    allegations. Although one of the witnesses in reply made an utterance which
    corroborated a complainants evidence, the Crown could not have anticipated
    that she would do so. Neither that statement nor the testimony of the other civilian
    reply witness prejudiced the appellant.

[5]

We also reject the submission that the detectives
    evidence in re-examination on reply that in his experience an accused who
    presented an alibi usually did so at the time of the investigation was an
    improper attack on the appellants credibility. It followed questions by
    defence counsel during the cross-examination about the reasonableness of the
    delay in disclosing the alibi and the right to silence. It was a brief, general
    statement to respond to the issue raised by the defence and was not oath
    attacking evidence in these circumstances. In any event, defence counsel at
    trial did not object to this evidence and did not request any form of limiting
    instructions.

[6]

We do not give effect to the grounds of appeal against
    conviction.

Sentence appeal

[7]

The appellant does not dispute that he met the criteria
    for a dangerous offender designation. Rather, he submits that the sentencing
    judge erred by failing to make a long- term offender (LTO) order in place of
    the dangerous offender designation.

[8]

The appellant submits that the sentencing judge erred
    in his approach to issues involving anti-androgen medication and the role of
    the National Parole Board, and by ignoring important evidence relating to the
    reasonable possibility of the eventual control of the appellants risk in the
    community. He also seeks to admit fresh evidence regarding his suitability to
    take sex drive reducing medication.

[9]

A LTO order is available only if there is a reasonable
    possibility that an offenders risk can be addressed and eventually controlled in
    the community  supervised during the currency of the LTO supervision order and
    unsupervised at the completion of the order. The statutory scheme contemplates
    a dangerous offender designation, and not a long-term offender order, where a
    sentencing judge is not satisfied that this criterion has been met.

[10]

As a 43-year-old acknowledged alcoholic and homosexual
    pedophile with a criminal record for nine sexual offences, the appellant poses at
    least a moderate to high risk to re-offend if released into the community.
    While the appellant has shown some willingness to deal with his problems and
    has responded well to treatment in a structured environment, he has re-offended
    each time he has been released from prison, even while on community
    supervision. The experts agreed that sex drive reducing medication, taken by a
    willing and motivated patient, as part of a treatment plan, could reduce the
    risk of re-offending.

[11]

We do not agree that the trial judges reasoning with
    respect to the appellants potential for treatment with sex drive reducing
    medication was tainted with legal and factual error for the following
    reasons.

[12]

The sentencing judge rightly understood that the parole
    board could order that a LTO take medication as prescribed by his qualified
    medical practitioner, but that a psychiatrist could not administer medication
    if consent was withdrawn either capriciously or reasonably, based upon
    potential side effects. The sentencing judge noted that a condition requiring
    an offender take medication as prescribed was not the same as a condition that would
    ensure that an offender could be released only if he was, in fact, taking the
    medication. The sentencing judge found that without the medical component of
    any treatment and release plan, the appellant was bound to re-offend. There was
ample  evidence
to support such a finding.

[13]

The sentencing judge did not materially misapprehend
    the process or the ability of the parole board to deal with any breach of a LTO
    condition. It may well be possible to fashion a condition to ensure that the
    appellant could be released only if taking the medication as initially
    recommended by a psychiatrist. However, the sentencing judge recognized that
    there are many factors which independently make the successful enforcement of a
    condition requiring that the appellant continue to take medication problematic.
    The sentencing judge found that he lacked reasonable assurance that the medical
    component of the controls would be implemented and enforced. Further, the
    appellant would not be found in breach of such a condition under s. 753.3(1) of
    the
Criminal Code

if he had a reasonable excuse
    for refusing to take the prescribed medication.

[14]

In these circumstances, the sentencing judge did not err by focussing
on
    whether the appellant would consent to take the medication. The evidence of the
    appellants attitude towards treatment was a factor that was highly relevant to
    the assessment of risk. Given the circumstances of this case, where the risk is
    created by a life-long condition, and controlling the risk is premised to a
    significant extent, if not entirely, upon the appellants willingness and
    capacity to take the medication, both during the currency of and potentially following
    the expiry of any LTO supervision order, the judge was appropriately concerned
    with whether the evidence specific to this offender demonstrated a sufficient motivation,
    commitment, and capacity to take the medication on an ongoing basis.

[15]

The sentencing
    judge did not ignore evidence of the appellants motivation for change. The
    appellant had responded well to programs while incarcerated and had expressed a
    willingness to take the medication to his defence expert. Nonetheless, the
    appellant did not testify and there was limited evidence regarding the
    appellants willingness and capacity to take the medication.

[16]

In the end, the sentencing judge found that the
    evidence that the appellant could be treated with sex drive reducing medication
    amounted merely to hope and speculation that his risk to children could be
    controlled if he were released back into the community. Reading the reasons as
    a whole, it is clear that the sentencing judge understood and applied the
    correct test of whether there was a reasonable possibility of eventual control
    in the community of the appellants risk to re-offend. He made no error in
    principle and his findings were supported by the evidence.

[17]

Although the fresh evidence provides further evidence
    of the appellants physiological suitability to start the medication and of his
    taking of test doses, it does not go far enough to demonstrate his suitability
    and his genuine motivation to do so, particularly on a longer term basis.

[18]

Despite the additional evidence related to the
    side-effects of the medication, the evidence is clear that both the
    side-effects and patient tolerance of the side-effects are highly variable.

[19]

Further, the appellant did not provide an affidavit as
    part of the fresh evidence application, nor, other than the test doses, has he
    begun actually taking the medication.

[20]

As we have said, the appellants risk is created by a
    life-long condition and controlling that risk is premised almost entirely upon
    his willingness and capacity to take the medication on a long-term basis. In
    the circumstances, in our view, the fresh evidence simply does not go far
    enough to demonstrate the appellants motivation, commitment, and capacity to
    take the medication on an ongoing basis.

[21]

Accordingly, we not satisfied that the fresh evidence
    could reasonably have affected the outcome of the dangerous offender application.

[22]

As a result, we conclude that the sentencing judge did
    not err in declaring the appellant to be a dangerous offender or in finding
    that he did not meet the criteria for a long-term offender designation. The
    appeal from conviction and sentence is therefore dismissed.

RELEASED:  April 27,
2011
JS                                    Janet
    Simmons J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.