COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Belisle, 2012
    ONCA 303

DATE: 20120510

DOCKET: C52278

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy Belisle

Appellant

Candice Suter, for the appellant

Gillian Roberts, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Joseph
    M. Fragomeni of the Superior Court of Justice, sitting with a jury, on April
    15, 2009.

Gillese J.A.:

[1]

After a trial by jury, Timothy Belisle (the appellant) was found guilty
    of first degree murder in connection with the fatal stabbing of Norman Anderson
    (Mr. Anderson or the victim) on January 26, 2008.  Mr. Belisle was sentenced to
    life imprisonment with no parole eligibility for 25 years.

[2]

Mr. Belisle appeals against conviction.

[3]

At the conclusion of the oral hearing of the appeal, the court advised
    counsel that the appeal was dismissed and that reasons would follow.  These are
    the promised reasons.

FACTS IN BRIEF

[4]

On the day in question, the appellant was drinking and socializing with
    his friends, Brent Tester and Yvonne Barry.  At some point during this time,
    Mr. Andersons name was mentioned.  According to Ms. Barry, the appellant reacted
    by becoming very angry and reaching for a knife.  However, he calmed down.
    Later that day, the appellant, Mr. Tester and Ms. Barry decided to visit Mr.
    Anderson at his home, where he lived with his common-law spouse, Jean Brunetti.
    They drove there in Mr. Testers car.

[5]

Initially the visit was friendly.  Everyone gathered in Mr. Andersons
    garage where he was working on fixing a car.  Then an altercation took place in
    which Mr. Anderson suffered a single fatal stab wound.  There was no tension among
    the people in the garage nor were any harsh words spoken before the victim said
    asshole or Fuck you, Tim and then made a loud moaning noise.

[6]

Mr. Tester and Ms. Brunetti tried to pull the appellant off of the
    victim.  Mr. Tester noticed that the appellant held a bloody knife; he tried to
    pull the appellants right arm (knife arm) back.  Ms. Brunetti jumped on the
    appellants left side.  When Mr. Tester managed to pull the appellants right
    arm back, she saw that the appellant held a knife which was covered in blood.

[7]

Mr. Tester, Ms. Barry and Ms. Brunetti testified.  The appellant did not
    testify or call any evidence at trial.

[8]

After handing out a draft of his charge and giving counsel time to
    consider it, the trial judge held an extensive pre-charge conference.  At the
    pre-trial conference, defence counsel asked that the defences of intoxication
    and provocation be left with the jury.  He did not ask for the defence of
    accident to be left with the jury.

[9]

The trial judge ruled that the defence of intoxication should go to the
    jury but found that there was no air of reality to a defence of provocation.

[10]

Following
    the charge to the jury, neither counsel raised any objections.  When the trial
    judge asked for comments, defence counsel responded with Well done, Your
    Honour, thank you very much.  The trial judge answered by asking specifically
    if there were any comments respecting the contents of the charge.  Defence
    counsel replied that he had no submissions.

THE GROUNDS OF APPEAL

[11]

For
    the first time on appeal, the appellant argues that the trial judge erred in
    failing to:

1.

give the jury an
    instruction on post-offence conduct;

2.

give a
Vetrovec
instruction in relation to the evidence of Mr. Tester and Ms. Barry;

3.

leave the
    defence of accident with the jury;

4.

properly
    instruct the jury on the elements of manslaughter;

5.

adequately charge
    the jury on the additional requirements of causation applicable to first degree
    murder;

6.

leave with the
    jury Ms. Barrys belief that the victim had a reputation for selling drugs.

[12]

The
    court called on the Crown in respect of only the sixth ground.

Post Offence Conduct

[13]

The
    appellant complains that the absence of an instruction on post-offence conduct
    gave rise to a significant risk that the jury would misapply the evidence.  The
    conduct in question consisted of two statements that the appellant made on
    the date in question.

[14]

The
    first statement was made when, shortly after the stabbing, Ms. Brunetti went
    into the living room and attempted to call 911.  The appellant asked who she
    was phoning and Ms. Brunetti answered to the effect that they had to phone for
    an ambulance.  The appellant said, Youre not phoning anyone, hes dead.  Ms.
    Brunetti screamed, Hes dead? and the appellant replied, No, not yet.

[15]

In
    its closing address, the Crown submitted that this amounted to evidence that the
    appellant was capable of forming the intention to have Mr. Anderson die, and
    that it provided evidence of planning and deliberation.

[16]

The
    appellant made the second statement shortly after interfering with Ms.
    Brunettis attempt to call 911, when he returned to the garage.  According to Mr.
    Tester, the appellant said to him, Shut up, or Ill kill you too.

[17]

The
    Crown submitted that the second statement was evidence of intention that the
    appellant was prepared to kill Mr. Tester just as he had killed Mr. Anderson.

[18]

A
    warning is required when evidence of post-offence conduct is introduced to
    support an inference of consciousness of guilt:  see
R. v. White
, 2011
    SCC 13, [2011] 1 S.C.R. 433, at para. 22.  In such circumstances, the danger
    exists that a jury may fail to take account of alternative explanations for the
    accuseds behaviour and may mistakenly leap from such evidence to a conclusion
    of guilt: see
White
, at para. 23.

[19]

The
    Crown did not rely on either of the two statements for a consciousness of
    guilt inference.  Rather, as indicated above, it relied on the evidence for
    clear and specific inferences related to intention.  In these circumstances, I
    do not see that the evidence could be misused, so no special warning was
    required.

[20]

Counsels
    considered position to not request an instruction on post-offence conduct or to
    complain about its absence supports the conclusion that no such instruction was
    required in this case.

A
Vetrovec
Instruction

[21]

Yvonne
    Barry and Brent Tester were both important Crown witnesses in that they
    provided evidence of the events around and during the stabbing which supported
    the Crowns case for murder.  However, their evidence was confirmed by the
    evidence of Jean Brunetti and the forensic evidence.  Moreover, their evidence
    was important to the defence because the evidence of drinking came from them
    and that evidence was essential to the defence of intoxication.

[22]

As
    mixed witnesses  that is, witnesses called by the Crown but who provide
    evidence that assists the defence  it was a matter for the trial judges
    discretion as to whether to give a
Vetrovec
warning:  see
R. v. Tran
,
    2010 ONCA 471, 103 O.R. (3d) 131, at para. 27.  I see no basis to interfere
    with the exercise of that discretion.

[23]

Had
    the trial judge given such an instruction, it would have hurt the defence in
    this case, given that it could have neutralised the evidence of drinking.  Instead,
    the trial judge carefully reviewed the two witnesses evidence and gave careful
    instructions on how to assess credibility and reliability, and the significance
    of prior inconsistent statements.  In so doing, the trial judge gave the jury
    the tools they needed to properly scrutinize Ms. Barry and Mr. Testers
    evidence while not neutralizing its ability to support the defence.  Again, the
    failure of defence counsel to request a
Vetrovec
warning or to complain
    about its absence is telling.

The Defence of Accident

[24]

I
    see no air of reality to the defence of accident.  Unsurprisingly, the defence
    did not ask that this defence be left with the jury.

[25]

The
    appellant did not testify or call any evidence so any air of reality would have
    had to have come from the Crowns case.  The evidence of the three witnesses to
    the stabbing was consistent: there was no fight or even tension until the
    stabbing and the stabbing occurred before the intervention of any of the
    witnesses, who tried to get the appellant away from the victim.  Furthermore,
    the nature of the stabbing itself suggests an intentional act.  The appellant
    brought a large knife to the scene, which he kept concealed until the attack.
    He stabbed the victim only once.  The stab wound began at the victims mid to lower
    back, went between several ribs, through the lower lobe of the right lung, and
    ended at the spinal column.  The knife had a 19 cm. blade that went through the
    victims winter coat and clothing and 18 cm. into his body.  As well, the statements
    that the appellant made after the stabbing, discussed above in the section on
    post-offence conduct, suggest the stabbing was intentional.

Manslaughter

[26]

The
    trial judge followed the model jury instructions on first degree murder.
    Accordingly, he instructed that if the jury concluded that the appellant caused
    the victims death by an unlawful act but did not have the intent for murder,
    the proper verdict was manslaughter.

[27]

The
    appellant complains that the instruction on manslaughter was inadequate because
    it did not refer to the essential elements of the offence of manslaughter.  I would
    not accept this submission.

[28]

The
    trial judge did not explicitly instruct the jury that the unlawful act must be
    objectively dangerous in that a reasonable person in the circumstances would
    think it likely to cause a risk of harm that is more than brief or minor in
    nature.  Instead, he instructed the jury that the unlawful act was the
    stabbing, an obviously objectively dangerous act.  The instructions were
    consistent with the evidence in the case, the way in which it was argued, and
    the real issue, which was the appellants intention.

Causation

[29]

The
    appellant complains that the trial judge failed to charge the jury adequately
    as to the requirement of causation because he failed to instruct the jury that
    they must be satisfied beyond a reasonable doubt that the appellant
    participated in the murder in such a manner that he was a substantial cause of
    Mr. Andersons death and that there was no intervening act of another which
    resulted in the appellant no longer being substantially connected to Mr.
    Andersons death.

[30]

A
    single test  the
Smithers
test  for causation applies to all forms of
    homicide:  the impugned act must be a significant contributing cause of
    death, beyond something trifling or minor: see
R. v. Nette
, 2001 SCC 78,
    [2001] 3 S.C.R. 488, at paras. 71-72. It is only in the context of a
    constructive first degree murder under s. 231(5) of the
Criminal Code,
    R.S.C. 1985, c. C-46,
that there is an additional requirement of causation:
    see
Nette
, at para. 73.  This was a planned and deliberate first degree
    murder under s. 231(2) of the
Criminal Code
, not a constructive first
    degree murder.  The trial judge followed the model jury instructions and
    correctly instructed the jury on the requirements of causation in this case.

[31]

In
    any event, causation was not in issue in this case.  There was never any
    question that the stabbing killed Mr. Anderson.  The issue was whether the
    Crown had proved that the act of stabbing was intentional and done with the
    requisite intent for murder.

The Victims Reputation

[32]

Ms.
    Barry gave evidence that Mr. Anderson had a reputation for being a drug
    dealer.  The trial judge instructed the jury that the evidence had no
    evidentiary value as it was hearsay, since Ms. Barry was only recounting what
    she had heard.  He stated that it was not admissible to prove the truth of its
    contents or for any other purpose.

[33]

The
    appellant submits that this evidence ought not to have been entirely excluded
    from the jurys consideration since it was relevant not for the truth of its
    contents but in establishing Ms. Barrys beliefs about whether the victim was
    someone from whom she could expect to obtain drugs.  This evidence, it was
    argued, could have provided an explanation for why the appellant and the others
    decided to visit the victim.  That is, the evidence was significant to the
    issue of the appellants intent.

[34]

In
    my view, the charge was correct in the circumstances of this case.  At best,
    the evidence could only have been admissible in relation to Ms. Barrys belief
    that she could buy drugs from the victim.  However, that was not Ms. Barrys
    evidence, as she consistently denied that she asked the victim for drugs or
    that she had any intention of doing so.  (The evidence that she asked to buy
    drugs from the victim came from Ms. Brunetti.)

[35]

In
    any event, it was the appellants intention, not Ms. Barrys, that was at
    issue.  As the evidence of Ms. Barrys beliefs went to her state of mind and
    not that of the appellant, I see no error in the trial judges instruction to
    the jury on this point.

DISPOSITION

[36]

Accordingly,
    I would dismiss the appeal.

Released: May 10, 2012 (M.R.)

E.E.
    Gillese J.A.

I agree
    M. Rosenberg J.A.

I agree
    Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Boca, 2012
    ONCA 367

DATE: 20120531

DOCKET: C54405

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Boca

Appellant

Ronald Ellis, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: May 4, 2012

On appeal from the conviction entered on September 24,
    2010 by Justice John L. Getliffe of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of 10 counts of distributing child
    pornography contrary to s. 163.1(3) and 11 counts of possession of child
    pornography contrary to s. 163.1(4) of the
Criminal Code
.

[2]

The appellant submits that his s. 10(b)
Charter
right to
    counsel was breached and that the trial judge erred in admitting three
    statements he gave to the police. He asks that the appeal be allowed and an
    acquittal entered.

[3]

The following facts provide sufficient context for our decision.  The
    police identified the internet protocol address of a computer sharing child
    pornography files. After determining the municipal address for the computers
    location they obtained a search warrant for the residence at this address. Upon
    entering the basement of the house, the police found three bedrooms that were
    rented out by the owner. The appellant was seated on a couch in the common area
    of the basement. Another man, Todd Blunt, emerged from his room. The third
    tenant was not at home.

[4]

The police spoke to the two men and showed them the warrant. The
    appellant submits that at this point he was detained. The appellant identified
    his bedroom.  This is the first statement the admissibility of which is
    challenged.

[5]

The police determined that there was a computer in the common area and
    another in the appellants bedroom. At this point neither man had been given the
    right to counsel.

[6]

Blunt left the area when the police learned he did not own or use a
    computer.

[7]

One of the officers went upstairs to speak with the landlord. In the
    meantime, another performed a cursory examination of the appellants computer
    and determined it contained child pornography. The appellant was called into
    the room where the officer confronted him with the images and questioned him
    about them. The appellant initially denied all knowledge of the images but
    subsequently admitted he was responsible for them. This is the second statement
    at issue. At this point the appellant had still not been given his s. 10(b)
    right to counsel. He was immediately arrested following his confession and at
    that point he was read his right to counsel and cautioned. The appellant
    indicated he understood and was transported to the station.

[8]

Two broken USB drives were found in the appellants pocket in a search
    incident to arrest. The appellant admitted they contained child pornography and
    that he had broken them on the way over to the police station.

[9]

When the appellant was booked into cells he was again given the
    opportunity to consult counsel. He declined. Later that evening police
    conducted a digitally recorded interview. Before the interview, the appellant
    was informed of his right to counsel and given the opportunity to exercise it.
    Again, he declined.

[10]

In
    the course of the 37 minute interview the appellant described how he accessed
    and made available child pornography using the Limewire program on his
    computer. This is the third statement at issue.

[11]

The
    trial proceeded as a blended
voir dire
. The appellant claimed his s.
    10(b) right to counsel had been violated and sought to have his various
    inculpatory statements excluded from evidence. The trial judge found that at the
    time of the first statement the appellant was not detained and there was no
    violation of his s. 10(b) right to counsel.  He found that the appellant was
    detained at the time of the second statement and therefore that the statement
    was obtained in violation of s. 10(b). He also found there was no violation of
    s. 10(b) in relation to the third statement. The trial judge declined to
    exclude any of the statements under s. 24(2). In light of the trial judges
    ruling, the court entered convictions on all charges.

[12]

The
    appellant submits that the trial judge erred in admitting the three statements.

[13]

In
    our opinion the trial judge did not err in admitting the first and third
    statements.  In relation to the first statement, in the context of executing a
    search warrant for child pornography at a residence occupied by numerous
    tenants, the police were entitled to ask some preliminary questions to
    determine how to proceed. The appellants identification of his room arose
    during this preliminary stage. He was neither physically detained nor subjected
    to any coercive demand or direction.  As a result the appellants right to
    counsel under s. 10(b) was not infringed.

[14]

The
    trial judge found that the third statement was not tainted by the breach of the
    appellants s. 10(b) right to counsel in relation to the second statement. We
    agree. Prior to the third statement, the appellants right to counsel was
    addressed on several different occasions. The appellant chose not to contact
    counsel. The appellant understood his rights and did not want to exercise them.
    The third statement was given in a different location, several hours after the
    alleged breach of the appellants right to counsel in relation to the second
    statement, and the appellant does not submit that the statement was involuntary.
    The fact that the appellant had already made several incriminating admissions
    in his second statement, standing alone, is not a basis from which to infer
    that the third statement is tainted.

[15]

As
    a result, even if the second statement was obtained in a manner that was a
    serious breach of the appellants s. 10(b) right to counsel and the trial judge
    erred in not excluding it under s. 24(2), our agreement with the trial judges
    finding that the third statement was not tainted means that the appellant was
    properly convicted.

[16]

Accordingly,
    the appeal is dismissed.

K.M. Weiler J.A.

David Watt J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bruyere, 2012
    ONCA 329

DATE:  20120517

DOCKET: C49833

Doherty, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicolaas Bruyere

Appellant

Jonathan Dawe, for the appellant

Lucas Price, for the respondent

Heard and released orally:  May 10, 2012

On appeal from the conviction entered on June 25, 2008
    and the sentence imposed on November 21, 2008 by Justice J.F. McCartney of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The trial judge found that the appellant was arbitrarily detained at the
    roadside and that the search of his vehicle which led to the discovery of the
    cocaine was unreasonable.  The trial judge, however, declined to exclude the
    evidence under s. 24(2).  The appellant was convicted of three drug related
    offences.  He appeals.

[2]

The appellant argues that while the trial judge correctly found that his
    constitutional rights were violated, he erred in not excluding the evidence.
    The appellant also makes a separate argument in respect of one of the
    convictions.  We see no merit to that ground and do not propose to address it.

[3]

In response, the Crown argues that the trial judge erred in holding that
    the appellants rights were violated, but that in any event, he correctly
    refused to exclude the evidence.

I

the alleged
Charter
breaches

[4]

The trial judge found that Officer Cowles did not have sufficient
    grounds to justify the investigative detention of the appellant and his
    passenger at the roadside.  Cowles had followed a vehicle that was driven by
    the appellant from a hotel.  There were two persons in the vehicle.  Cowles
    could not identify either man.  He instructed another officer to pull the
    appellants vehicle over as it headed toward Fort Frances on the TransCanada
    Highway.  Cowles suspected that one of the occupants in the vehicle was a man named
    Hyatt.  Cowles had received information from Sergeant Hill to the effect that
    Hyatt had just completed a drug transaction at the hotel and was couriering the
    drugs back to Fort Frances.  The appellant had not been identified as having
    any involvement in this transaction.

[5]

The evidence on the
voir dire
into the constitutionality of the
    stop came primarily from Officer Cowles and Detective Hill.  Their evidence
    conflicted on several points and was unclear on others.

[6]

The trial judge ultimately approached the constitutionality of the
    search as depending on whether Cowles had reasonable grounds to suspect that
    Hyatt was in the vehicle when he ordered it stopped.  The trial judge referred
    to the parts of Cowles evidence which could support the existence of that
    suspicion.  He ultimately concluded, however, that Cowles evidence, considered
    in its totality, did not provide a basis for a reasonable suspicion.  The trial
    judge described Cowles as not having anything more than a hunch.

[7]

The trial judge did not misapprehend the evidence and on this record we
    see no basis upon which we can reverse the trial judges finding of fact.

[8]

The Crown argued that Sergeant Hill, the officer in charge of the investigation,
    who was not actually at the scene of the detention, but who was providing
    information to Cowles, did have sufficient grounds to justify the detention of
    the appellant.  Crown counsel argues that Hills reasonable suspicion rendered
    the detention constitutional under s. 9, even if Cowles did not have reasonable
    grounds to suspect that Hyatt was in the car.

[9]

We need not decide whether Hills beliefs and the grounds for those
    beliefs were relevant to the constitutionality of the detention of the appellant
    at the roadside.  Assuming that his belief and the grounds for that belief were
    relevant, on the evidence, Hill was in no better position than Cowles to come
    to any conclusion as to whether Hyatt was in the vehicle.  Ultimately, the reasonableness
    of the detention and the constitutionality of the stop turned on whether there
    were reasonable grounds to suspect that Hyatt was in the vehicle.

[10]

Consequently,
    whether one looks at Cowles grounds for detaining the vehicle, Hills grounds
    for detaining the vehicle, or combines the two, the result is the same.  The
    stop was arbitrary in that there were no reasonable grounds to suspect that
    Hyatt was in the vehicle before the officers stopped the vehicle.  The evidence
    discovered in the search of the vehicle which followed immediately after the
    identification and arrest of Hyatt constituted evidence obtained in a manner
    that infringed the appellants rights under s. 9 of the
Charter
.

II

the admissibility of the evidence under section 24(2)

[11]

The trial judge applied the
Collins
test to the admissibility
    of the evidence having found a breach of the
Charter
:

R. v. Collins
,
[1987] 1 S.C.R. 265.  We are invited to
    re-examine the admissibility of the evidence under s. 24(2) using the formula
    set out in
R. v. Grant
, [2009] S.C.J. No. 32.

[12]

In
    assessing the admissibility under the approach outlined in
Grant
, we
    are instructed to defer to the trial judges findings of fact:  see
R. v.
    Beaulieu
, [2010] S.C.J. No. 7.  Deference does not, however, mean that the
    findings of fact are unreviewable.

[13]

Counsel
    for the appellant argues that the finding of exigent circumstances made by the
    trial judge is unsupportable on the law of exigent circumstances as most
    recently described in
R. v. Kelsy
,
2011 ONCA 605.  We agree with this submission.  The police had no safety
    concerns and they had no reasonable grounds upon which to believe that there
    were drugs in the car before they stopped the car and identified Hyatt as one
    of the occupants.

[14]

The
    trial judges finding of exigent circumstances was an important consideration
    in his ultimate determination that the evidence discovered as a result of the
    unlawful detention was admissible.  That finding must be set aside.

[15]

Counsel
    for the appellant also challenges a second finding of fact made by the trial
    judge in his s. 24(2) analysis.  The trial judge found that although Cowles did
    not have reasonable grounds to detain the appellant, Sergeant Hill, who was
    effectively in charge of the investigation, likely had enough information to
    detain the vehicle in question on an investigative detention basis.  As
    indicated above, we see no basis upon which to conclude that Detective Hill had
    better grounds to stop the vehicle than did Officer Cowles.  The trial judge
    used his finding of Sergeant Hills grounds to detain the vehicle to mitigate
    the unconstitutional stop.  That finding, with respect, is unsupported by the
    evidence and should not have figured in the s. 24(2) analysis.

[16]

This
    court will not defer to the trial judges analysis given the two errors
    described above.  The question becomes  what should this court do?

[17]

The
    court can either redo the s. 24(2) analysis using
Grant
and relying on
    the trial judges findings save those that are not supported by the evidence,
    or the court, having found error, can remit the matter for a new trial.  In
    many ways, the former is the preferable approach.  However, we are satisfied
    that on this record that approach is not available.

[18]

On
    the trial judges approach, which turned exclusively on Officer Cowles beliefs,
    he did not have to address and resolve much of the conflicting evidence given
    by Officer Cowles and Sergeant Hill.  This court does not have the benefit of
    any findings of fact in respect of that evidence.  On the state of this record,
    we do not think the appellate forum is the appropriate one in which to make
    those findings. We are satisfied that the admissibility of the evidence must be
    determined in a trial forum in which the conflicting evidence can be properly
    assessed.

[19]

The
    appeal is allowed, the convictions are quashed and a new trial is ordered on
    all counts.

Doherty
    J.A.

Janet
    Simmons J.A.

H.S.
    LaForme J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Charbonneau, 2012
    ONCA 314

DATE: 20120514

DOCKET: C49981

Weiler, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Charbonneau

Appellant

Brian Snell, for the appellant

Eric Siebenmorgen, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Catherine
    D. Aitken of the Superior Court of Justice, sitting with a jury, on February 3,
    2006.

By the Court:

1.

Introduction

[1]

Following a jury trial before Aitken J., the appellant was
    convicted of sexual assault. The only evidence at trial directly implicating
    the appellant in the sexual assault was the testimony of the complainant. The
    main issue at trial was identification.

[2]

On appeal, the appellant argues that the trial judge erred in her
    instructions to the jury concerning eyewitness identification evidence. In
    addition, he submits that the trial judge erred in ruling that, in the event
    the appellant elected to testify, he would be subject to cross-examination on
    his criminal record.
[1]

[3]

For the reasons that follow, we would dismiss the appeal.

2.

Background

[4]

The complainant was 49 years old at the time of the
    assault. She suffers from paranoid schizophrenia. She reported the alleged
    assault to the police approximately three weeks after she says it occurred. Her
    videotaped statement to the police was admitted as evidence at the trial, on
    consent, under s. 715.2 of the
Criminal Code
. The complainant also
    gave oral evidence.

[5]

The complainant said she met her assailant on two occasions
    before the assault occurred: once, at his apartment, for coffee; and on a
    second occasion, briefly, at her apartment. She said she accompanied the
    appellant to his apartment on the day of the assault after running into him at
    a mall. She described his apartment as being in the basement of a red brick
    house near the mall.

[6]

About a week after the assault, the complainant once again saw
    her assailant at the mall. She wrote down the licence number of the white van
    he was driving as 933 1K7.

[7]

Police subsequently arrested the appellant, who lived in a
    basement apartment of a red brick house. The license number of his white van
    was 933 1KE. A sketch of the lay-out of his apartment prepared by one of the
    arresting officers closely matched a sketch prepared by the complainant during
    her interview with the police. And whereas the complainant had described the
    appellants bed as having a brown comforter with a big tiger on it, police found
    a blue comforter with a big picture of a wolf on it.

[8]

In her videotaped statement to the police, the complainant
    described her attacker as follows:

dirty,
    dark, stable brown (dark, almost black), curly, wavy hair;

nose
    that looks like a hook;

brown
    eyes;

missing
    teeth;

deep
    voice;

big
    hands;

approximately
    5' 8" in height (about six inches taller than the complainant);

kind
    of fat, on the heavy side;

shoe
    size unknown;

a
    lot of wrinkles; and

about 60 years old.

[9]

Almost three weeks after her interview with the police, the
    complainant picked the appellant's photograph out of a photographic line-up
    presented to her by the police. The appellants photograph was the fifth
    photograph in the photographic line-up booklet. The officer who conducted the
    identification procedure testified that the complainant said, thats not him,
    when shown each of the first four photographs. When she saw the fifth
    photograph, the complainant said, thats him.

[10]

The fifth photograph was the only photograph in the booklet
    depicting a man with a full moustache. The complainant had not mentioned facial
    hair in her videotaped statement to the police. Moreover, the photograph
    demonstrates that the appellant has blue eyes, not brown eyes as described by
    the complainant.

[11]

When asked at trial who she thought was in the photograph she
    selected during the photo line-up, the complainant answered: [w]ell, the face
     the face, I remember  the face looked the same, but the hair and moustache
    looked different. She said, [h]is  When I seen him, his hair and moustache
    wasnt even like that. When asked in what way it wasnt like that, she said,
    [l]ike a brush cut. It was grey  pepper/salt, and he had a grey moustache.
    This description was very different from her description of the appellants
    hair in her videotaped statement to the police, in which she described her
    attackers hair as dark brown, curly and wavy and made no mention of a
    moustache or facial hair.

[12]

After watching her videotaped statement to the police at trial,
    the complainant said she made two mistakes in her description of the
    perpetrator in the statement: his hair and his name. In her videotaped
    statement to the police, the complainant said her attackers name was Mark
    Williams  as opposed to Marc Charbonneau.

[13]

The trial was held almost two years after the date of the sexual
    assault. The appellant was in the courtroom at the time. However, when the
    complainant was asked to look around the courtroom during her examination
    in-chief, she said she did not recognize the appellant, unless hes gained a
    lot of weight, or something.
[2]

3.

Discussion

(i)

Did the trial judge err in her instructions to the jury concerning
    eyewitness identification evidence?

[14]

In his factum, appellants counsel argued that the eyewitness
    identification evidence in this case was so flawed as to make the guilty
    verdict unreasonable. During oral argument, appellants counsel acknowledged
    that, when combined with the circumstantial evidence of identity, the
    identification evidence was sufficient to support a guilty verdict.
    Nonetheless, appellants counsel maintained that the trial judge made
    reversible errors in her instructions to the jury concerning the eyewitness
    identification evidence.

[15]

In particular, the appellant submitted that the errors and
    inconsistencies in the complainants descriptions of her attacker made her
    identification of the appellant virtually no identification at all. This was
    particularly the case given that the complainant was unable to identify the
    appellant in the courtroom at trial.

[16]

The appellant argued that, in these circumstances, the trial
    judge should have told the jury that the complainants inability to identify
    the appellant in the courtroom, combined with her inconsistencies when
    describing her attackers physical appearance, required the jury to be
    extremely cautious before accepting the complainants evidence. Moreover, the
    trial judge should have specifically instructed the jury that the errors and
    inconsistencies in the complainants description were capable of raising a
    reasonable doubt. Finally, in her charge to the jury the trial judge should
    have emphasized that there is no link between a witnesss certainty at the time
    of a photo line-up identification and the reliability of that identification.

[17]

Instead, the trial judge gave the following concluding
    instruction on identification, which on appeal the appellant claimed undermined
    some of the trial judges earlier cautions:

It is not necessary that an identification witness  such as
    [the complainant], in this case  be free from doubt about the correctness or
    certainty of her identification, or that she continued to be able to identify
    the accused as the offender, at the time of trial. What is required, however,
    before you find [the appellant] guilty of the offence, is that you be satisfied,
    beyond a reasonable doubt, on the whole of the evidence, that it was [the
    appellant] who committed the offence.

I should also add that, at no time, while giving her
    evidence in court, did [the complainant] express any doubt about her
    identification at the time of the photo line-up.
What she did express was
    that, today, she did not recognize [the appellant], and was not able to say,
    today, that he was her assailant. [Emphasis added.]

[18]

The appellant argued that the inadequacies of the charge to the
    jury could be analogized to those in the charge at issue in
R. v. Richards
(2004), 70 O.R. (3d) 737 (C.A.). In
Richards
, this court concluded
    that the shortcomings of the charge necessitated a new trial.

[19]

We do not accept the appellants submissions. The trial judge
    began her instructions on eyewitness identification evidence with the standard
    instruction that juries must be very cautious about relying on eyewitness testimony
    to find someone guilty of a criminal offence. She told the jury that miscarriages
    of justice have occurred because eyewitnesses have made mistakes in identifying
    the persons whom they saw committing the crime and that honest witnesses can
    make mistakes and yet appear convincing.

[20]

The trial judge did tell the jury that the complainants
    description of her attacker matched, in many respects, the description given by
    the arresting officer. And she did state that, apart from the complainants
    descriptions of the attackers hair and moustache, the jury might find her
    evidence quite consistent. However, the trial judge also said that [i]t was
    obvious that the complainant was not clear about her assailants hair and
    moustache. In addition, the trial judge reminded the jury that the complainant
    did not recognize the appellant in the courtroom. Later, when reviewing the
    evidence and the position of the defence, the trial judge also reminded the
    jury of the specific errors and inconsistencies in the complainants eyewitness
    evidence identifying the appellant as her attacker.

[21]

In our view, it would have been preferable had the trial judge
    omitted the part of her instruction we have emphasized above in para. 17,
    reminding the jury that the complainant did not express any doubt about her
    identification at the time of the photo line-up. As the trial judge had already
    told the jury, honest and convincing eyewitnesses can still make mistakes.

[22]

That said, read as a whole, the trial judges instructions were
    sufficient to bring to the jurys attention: the frailties in eyewitness
    identification evidence, generally; the errors and inconsistencies in the
    complainants eyewitness identification evidence, specifically; and the
    requirement that the jury was not to convict the appellant unless satisfied of
    his guilt beyond a reasonable doubt. Unlike
Richards
, it was evident
    in the case at bar that the trial judge made a concerted effort to balance in
    her charge: (i) the specific frailties of the complainants evidence, and (ii) the
    evidence which supported the complainants testimony.

[23]

We also agree with counsels acknowledgment that, when combined
    with the circumstantial evidence of identity, the identification evidence was
    capable of supporting a guilty verdict. Accordingly, we do not give effect to
    this ground of appeal.

(ii)

Did the trial judge err in ruling that, in the event the appellant
    elected to testify, he would be subject to cross-examination on his criminal
    record?

[24]

At the conclusion of the Crowns case, defence counsel at trial
    (not Mr. Snell) brought a
Corbett
[3]
application seeking a ruling that the Crown be prohibited from cross-examining
    the appellant on two convictions for sexual assault entered in 1992. Although
    the trial judge ruled that the Crown could cross-examine the appellant on these
    two entries, she qualified her ruling by directing that the Crown could not
    refer to the sexual nature of the assaults.

[25]

On appeal, the appellant argues that the trial judge erred in
    holding that the appellant could be cross-examined on the two convictions at
    issue. Specifically, the appellant argues that the trial judge erred because,
    in reaching her decision, the trial judge relied, in part, on the fact that
    appellants counsel had cross-examined the complainant (and other witnesses)
    about the complainants mental health.

[26]

We do not accept the appellants argument. Even if the trial
    judge erred in this aspect of her reasoning, we see no error in the remainder
    of her reasons nor in her ultimate decision on the
Corbett
application.

[27]

The appellant had multiple entries
    for assault and other offences in his criminal record. However, the trial judge
    noted that deleting reference to the 1992 convictions from his records would
    suggest that there was a significant period in which the appellant lived a
    law-abiding life in the community when, in reality, he was serving a
    penitentiary sentence. As well, the trial judge noted, the sentences he
    received for the 1992 convictions were significantly longer than any other
    sentence he has received. In her words, allowing cross-examination on these
    convictions would allow the jury to fairly gauge just how hardened a criminal
    they consider [the appellant] to be, and what impact his criminal record has on
    their assessment of his credibility.

[28]

Throughout her reasons on the
Corbett
application, the
    trial judge properly focused on the need to weigh the probative value of the
    evidence to the jurys assessment of the appellants credibility against the prejudicial
    effect of its inclusion.

[29]

Moreover, it was appropriate for
    the trial judge to sanitize the appellants record by requiring the sexual
    assaults from 1992 to be described only as assaults:
R. v. Batte
(2000), 145 C.C.C. (3d) 498 (Ont. C.A.), at para. 51.
    Doing so reduced any potential prejudice to the appellant.

[30]

Even if the trial judge erred by considering
    the questions about the complainants mental health in the course of her ruling
    on the
Corbett
application, we
    are of the opinion that
there was no
    reasonable prospect that the application would have been decided differently if
    the error had not been made
: see s.
    686(1)(b)(iii) of the
Criminal Code.

4.

Disposition

[31]

The appeal is therefore dismissed.

Signed:        Karen M. Weiler J.A.

Janet Simmons J.A.

E. A. Cronk J.A.

Released: JS MAY 11, 2012

[1]

At the outset of his oral argument, appellants counsel
    abandoned the second ground of appeal listed in his factum: the trial judge
    erred in instructing the jury to ignore the complainant's mental disability.
    During the course of oral argument, appellants counsel acknowledged that,
    taking account of the circumstantial evidence of identification, the verdict is
    not unreasonable.

[2]
The arresting officer testified at trial. He was asked to compare the
    appearance of the appellant at arrest and at trial. He observed, among other
    things, that the appellant was heavier at the trial than he was at the time of
    arrest.

[3]

R. v. Corbett
, [1988] 1 S.C.R. 670.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Cole, 2012 ONCA 347

DATE: 20120525

DOCKET: C54302

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Anne-Marie Cole

Respondent

Jennifer Mannen, for the appellant

Richard Posner, for the respondent

Heard: April 27, 2012

On appeal from the decision of Justice L. B. Roberts of
    the Superior Court of Justice, sitting as a summary conviction appeal court, on
    August 16, 2011.

Watt
    J.A.:

[1]

The Attorney General seeks leave to appeal from a decision of a judge of
    the Superior Court of Justice, sitting as a summary conviction appeal court
    (the appeal judge), setting aside the respondents conviction of operating a
    motor vehicle with a prohibited concentration of alcohol in her blood.

THE BACKGROUND

[2]

The circumstances in which the issues raised arise can be stated
    briefly.

The Trial Proceedings

[3]

On the third date scheduled for her trial, the respondent did not appear
    because her counsel had apparently not reminded her of the trial date.  Counsel
    was able to contact the respondent on the trial date, but the respondent failed
    to attend because of her employment obligations.

[4]

The presiding judge was unimpressed with the respondents failure to
    appear and her assignment of priority to her work obligations rather than to
    her appearance for trial. The judge noted that the offence was alleged to have
    occurred nearly two years earlier.

[5]

The presiding judge, apprised that a s.650.01 designation had been filed
    by counsel shortly after the respondents first appearance in answer to the
    charges, announced that he would case manage the prosecution. In order to do
    so, the presiding judge arraigned the respondent
in absentia
and
    entered a plea of not guilty when counsel, who appeared by designation, said
    she had no instructions on how the respondent wished to plead. Crown counsel
    elected to proceed by summary conviction.

[6]

As a result of an outstanding disclosure request that had not been
    answered, the judge granted an adjournment request by counsel for the respondent
    and fixed a new trial date about three months later.

[7]

The trial proceeded as scheduled after the judge dismissed an
    application by the respondent to recuse himself on the basis of a reasonable
    apprehension of bias.  The trial judge convicted the respondent of operating a
    motor vehicle with a prohibited concentration of alcohol in her blood.

The Summary Conviction Appeal

[8]

On her appeal to the Superior Court of Justice, the respondent
    challenged her conviction on two grounds:

i.        that
    the trial judge erred in proceeding with the respondents      trial in the
    absence of the respondent, thus infringing her right          to be present at
    trial and demonstrating a reasonable      apprehension of bias against her; and

ii.       that
    the trial judge erred in failing to exclude, on account of        constitutional
    infringement the results of breath tests         administered to the
    respondent.

The Decision of the Summary Conviction Appeal Judge

[9]

The appeal judge concluded that the trial judge had erred in exercising
    his discretion under s. 803(2) of the
Criminal Code
to proceed in the
    absence of the respondent.  The error, the appeal judge said, was the product
    of several factors:

i.        a
    mischaracterization of the respondents failure to attend as a

refusal
    to appear, rather than as an inadvertent failure to         appear for want of
    timely reminder;

ii.       a
    failure to accord the proper weight to the reasons for non-       attendance;
    and

iii.      an
    invocation of s. 803(2)(a) for the purpose of administrative    convenience.

[10]

The
    appeal judge characterized the arraignment and entry of a plea as an
    infringement of the respondents right to be present at her trial, allowed the
    appeal, quashed the conviction and ordered a new trial.

The Application for Leave to Appeal

[11]

The
    Attorney General seeks leave to appeal from the decision of the appeal judge on
    three grounds involving questions of law alone. The grounds advanced allege
    errors by the appeal judge in her interpretation of some statutory provisions
    and her failure to consider the applicability of others.

ANALYSIS

Leave to Appeal

[12]

It is well-settled that leave to appeal
    under s. 839(1)(a) of the
Criminal Code
should be granted sparingly. Two key variables inform the
    decision about whether leave to appeal should be granted:

i.

the significance of the legal issues
    raised to the general administration of criminal justice; and

ii.

the merits of the proposed ground of
    appeal.

Leave to appeal may be
    granted where the merits of the proposed questions of law are arguable and the
    proposed questions have significance beyond the four corners of the case. And
    leave to appeal may also be granted where there appears to be clear judicial
    error in the decision below, even if we cannot say that the error has
    significance to the administration of criminal justice beyond the specific
    case:
R. v. R. (R.)
,
2008 ONCA 497, 234 C.C.C. (3d) 463, at paras. 32 and 37.

[13]

I am satisfied that this is a case in
    which we should grant leave to appeal. The grounds raised involve issues of
    statutory interpretation and the applicability of remedial provisions in
    summary conviction proceedings where no prejudice to the accused has occurred.
    The merits of the appeal are strong. The issues raised extend well beyond the
    circumstances of this case.

The
    Merits of the Appeal

[14]

In
    my view, the reasons of the appeal judge reflect legal error and cannot stand.

The Designation of Counsel and its Effect

[15]

In
    summary conviction proceedings, a defendant may appear personally, or by
    counsel, or by agent. Under s. 800(2) of the
Criminal Code
, a summary
    conviction court may order the defendant to appear personally and, if the court
    thinks fit, issue an arrest warrant to compel the defendants attendance.

[16]

On
    April 21, 2008, about 21 months prior to the appearance in issue, the
    respondent signed a designation under s. 650.01 of the
Criminal Code
.
    By that document, the respondent designated her counsel to appear on her behalf
    in any proceedings where her (the respondents) attendance was not required by
    law or judicial order. That designation was in force on the date about which we
    are concerned.
[1]

[17]

Section
    650.01(2) states the effect of filing a designation. Among other things, when a
    designation is filed, the appearance of designated counsel is equivalent to the
    presence of the accused, unless the presiding judge orders otherwise: s.
    650.01(3)(b).  It follows, in my view, that the appeal judge erred in
    concluding that the physical absence of the respondent on the date of
    arraignment and entry of a plea of not guilty contravened her right of presence
    under s. 650 of the
Criminal Code
. The respondent, though physically
    absent herself, was present through the operation of s. 650.01(3)(b) of the
Criminal
    Code
.

The Procedural Proviso

[18]

Even
    if the actual physical presence of the respondent were required to ensure
    compliance with s. 650(1) of the
Criminal Code
, which, in my view, it
    was not, what occurred plainly fell within the grasp of the curative proviso in
    s. 686(1)(b)(iv).

[19]

Unfortunately,
    the appeal judge was not asked to consider and did not, on her own motion,
    consider the potential applicability of s. 686(1)(b)(iv) of the
Criminal
    Code
to the breach she found of s. 650(1) of the
Criminal Code
.

[20]

The
    procedural proviso in s. 686(1)(b)(iv) permits an appellate court to dismiss an
    appeal from conviction where three conditions precedent are satisfied:

i.

the error made at trial was a procedural irregularity;

ii.

the trial court had jurisdiction over the class of offence of which the
    appellant was convicted; and

iii.

the appellate court is satisfied that the appellant suffered no
    prejudice as a result of the error (procedural irregularity).

[21]

The
    respondents actual absence from arraignment was, at best, a procedural
    irregularity, as much as is the exclusion of an accused from part of his or her
    trial in proceedings by indictment:
R. v. F.E.E
., 2011 ONCA 783, 108
    O.R. (3d) 337, at para. 31; and
R. v. Simon
, 2010 ONCA 754, 104 O.R.
    (3d) 340, at para. 122.

[22]

The
    presiding judge had jurisdiction over the class of offence with which the
    respondent was charged.  Both offences could be prosecuted by indictment or by
    summary conviction.  Once the trial Crown had elected to proceed by summary
    conviction, the judge had jurisdiction over the class of offence as a summary
    conviction court under s. 785(1) of the
Criminal Code
.

[23]

The
    respondent suffered no prejudice by the arraignment and entry of the plea of
    not guilty in her physical absence from the courtroom.  No evidence was
    adduced. The disclosure issue that remained outstanding required an
    adjournment. The adjournment was granted to a date about three months later
    when the trial proceeded in the respondents actual presence.

[24]

The
    presiding judge appears to have regarded the arraignment and entry of a plea
    (of not guilty) as essential for him to case manage what he considered a
    prosecution approaching vulnerability under s. 11(b) of the
Charter
.
    He was wrong.  Judicial case management is not dependant on arraignment or
    plea. Nor is it the exclusive preserve of the trial judge or a judge seized
    of a case.

[25]

This
    case was a routine alcohol-driving prosecution: two prosecution witnesses and a
    couple of exhibits. The only case management required was selection of a
    trial date in consultation with counsel and the trial co-ordinator.

The Additional Grounds

[26]

On the summary conviction appeal, the
    respondent sought to set aside her conviction on two other grounds.  She argued
    that the conduct of the trial judge on the arraignment and entry of the plea,
    and later on a motion for recusal or mistrial, gave rise to a reasonable
    apprehension of bias.  She also contended that the trial judge was wrong in
    failing to exclude evidence of the results of two breath tests administered
    shortly after the respondents arrest. The appeal judge rejected both
    arguments.

[27]

On the hearing of this appeal, Mr.
    Posner relied upon his written submissions on these issues as a basis upon
    which we should dismiss the appeal, even if we considered the appeal judge was
    wrong in her decision about the breach of the respondents right of presence.

[28]

I am satisfied that the appeal judges
    disposition of these additional grounds was correct.

CONCLUSION

[29]

In
    the result, I would grant leave to appeal, allow the appeal, set aside the
    order of the appeal judge, and restore the conviction recorded and sentence
    imposed at trial.

Released:  May 25, 2012 JL

David
    Watt J.A.

I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.

[1]
The form of designation used in this case is identical to Form 18 under the
Criminal
    Proceedings Rules
of the Superior Court of Justice.  The
Rules of the
    Ontario Court of Justice in Criminal Proceedings
do not appear to provide
    a form for use under s. 650.01.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Halliday, 2012 ONCA 351

DATE 20120525

DOCKET: C54229

Rosenberg, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Shane Halliday

Appellant

Michael Dineen, for the appellant

Eliott Behar, for the respondent

Heard: April 17, 2012

On appeal from the conviction entered by Justice Wren of
    the Ontario Court (General Division) on June 8, 1999, and the sentence imposed
    on June 4, 2001.

ENDORSEMENT

[1]

The appellant appeals from the finding by Wren J. in 2001 that the
    appellant is a dangerous offender and from the sentence of indeterminate
    detention. Through no fault of the appellant and his current counsel, there has
    been an extremely long delay in perfecting this appeal. Because of the delay,
    an order was made for updated psychiatric reports. Those reports have now been
    filed and the authors of those reports, Dr. Bradford and Dr. Klassen, were
    cross-examined prior to the hearing. We have also received other material
    relating to the appellants behaviour and progress in the penitentiary. The
    appellant agrees that the dangerous offender designation and indeterminate
    sentence were proper when made back in 2001. He submits, however, that the
    recently filed reports show that he should be given a determinate sentence to
    be followed by a long-term supervision order. For the following reasons we do
    not accept that submission and the appeal is dismissed.

[2]

The predicate offence that led to the dangerous offender finding
    occurred in 1997. The appellant had recently been released from prison and had
    begun a relationship with N.H., which she then ended. When the appellant was
    rebuffed in an attempt to resume the relationship, he went to the apartment of
    a friend of N.H., A.L. He gained entry to the apartment by a ruse. He then held
    a knife to the complainants throat and violently raped her vaginally and
    anally. The complainant was later treated for knife wounds and injuries to her
    genital area. The offence had a devastating psychological impact on the
    complainant.

[3]

At the dangerous offender hearing, the prosecution led evidence of
    numerous sexual offences committed by the appellant from 1987 to his
    imprisonment in 1994. Beginning in 1987 and for a four year period he
    frequently assaulted his then girlfriend, J.W., when she was between the ages
    of 13 and 17. These assaults included physical violence with his fists
    requiring medical attention, stabbing her in the arm, violence with knives
    generally and multiple sexual assaults at knifepoint. When this victim finally
    ended the relationship, the appellant raped her sister, S.W., at knifepoint in
    1993.

[4]

In 1992, when another girlfriend, A.S., broke off her relationship with
    the appellant, the appellant broke into her apartment and threatened her with a
    wrench. The appellant confined this 17-year-old victim for 30 to 60 minutes,
    until another male intervened. The appellant was charged and released on bail.
    Friends of the appellant threatened to kill the victim unless she dropped the
    charges. In the end, the victim failed to attend court and the charges had to
    be withdrawn.

[5]

Two months after raping S.W., the appellant raped another 17-year-old
    woman, T.F-L. The appellant had had a relationship with this woman, which ended
    when the appellant was jailed. In May 1993, they agreed to meet. The appellant
    took her to a field on a pretence that they were going to meet a friend. The
    appellant pulled out a knife and raped the victim while holding the knife to
    her throat. The assault had a devastating impact on the victim, who described
    extreme anxiety, panic attacks and sleep disorders.

[6]

On October 3, 1994, the appellant pled guilty to the sexual assaults
    involving T.F-L. and S.W. The appellant admitted through counsel that he
    required treatment. The presiding judge imposed a sentence of two years and
    four months imprisonment, in addition to 16 months pre-sentence custody, and
    recommended treatment, including sex offender treatment. Once he reached the
    penitentiary, the appellant refused to take any treatment. The appellant was
    classified as being at high risk for violent recidivism.  He was held in prison
    until the warrant expiry date. Ten months after being released, the appellant
    raped A.L., the victim of the predicate offences.

[7]

The psychiatric and other evidence at the dangerous offender hearing
    overwhelmingly established that the appellant was a dangerous offender and that
    an indeterminate sentence was the only possible disposition. The appellant has
    displayed aggressive behaviour from a very young age and by age 12 was drinking
    heavily and taking drugs. Despite an impressive amount of social service
    intervention, the appellant made no improvement. He either failed to respond to
    treatment programs or withdrew from them. In addition to his record for sexual
    offences, the appellant has a significant youth and adult record for theft, mischief,
    assault with a weapon, escape from lawful custody, possession of a weapon and
    break and enter. He also fared badly in various institutions, acquiring an
    extensive adult institution record.

[8]

The psychiatric diagnosis at the dangerous offender hearing was that the
    appellant had an antisocial personality disorder and sexual paraphilia that was
    most unlikely to respond to treatment. The various actuarial tools used by the
    experts scored the appellant as extremely likely to re-offend.

[9]

The fresh evidence paints a slightly more optimistic picture for the
    appellant. After years of refusing treatment, the appellant had begun to
    participate in some treatment programs and in particular had completed a high
    intensity sex offender treatment program. That said, the diagnosis and risk of
    re-offending remains largely unchanged.

[10]

Dr.
    Klassen, who also testified at the original dangerous offender proceeding,
    concluded that the appellant suffered from personality disorder of an
    antisocial type with borderline traits, alcohol dependence disorder, and a
    paraphilic coercive disorder involving a preference for non-consenting sexual
    interaction. The actuarial tools,
inter alia
, showed the appellant to be
    100% likely to re-offend within ten years. Dr. Klassen was of the view that
    there was no reasonable possibility of eventual control of risk in the
    community. The appellant would require a significant period of behavioural
    quiescence and clear substance abstinence, in the institution, along with
    evidence of increased commitment to self-change, and reflection, prior to
    contemplation of (even limited) community release.

[11]

Dr.
    Bradford agreed with Dr. Klassens psychiatric diagnosis of the appellant.
    However, he also believed that the appellant suffered from adult ADHD. He was
    of the opinion that there was a reasonable possibility of eventual control of
    the appellants risk in the community if the appellant underwent
    pharmacological treatment for ADHD and pharmacological castration and was
    subject to random urinalysis for substance abuse. Dr. Bradford was critical of
    the actuarial instruments, being of the opinion that research did not support
    the use of these instruments for determining whether an accused should be
    indefinitely incarcerated.

[12]

Correctional
    records filed on the appeal showed that the appellant had an extensive history
    of institutional charges up until 2009. Thereafter, his behaviour had improved
    and he was now classified as medium security.

[13]

In
    his very helpful submissions, Mr. Dineen mounted a substantial attack on the
    use of the actuarial instruments upon which Dr. Klassen relied. These
    instruments have come into use as a way of providing a more objective measure
    of dangerousness than may be possible through purely clinical observation. In
    our view, this is not an appropriate case to determine the usefulness of these
    instruments. Evaluation of these instruments would require a proper record,
    which was lacking in this case. All that was before us was Dr. Bradfords
    scepticism about the utility of the instruments and some journal articles filed
    by the appellants counsel. Most significantly, neither experts opinion
    depended upon these instruments.

[14]

In
    our view, the fresh evidence does not warrant allowing the appeal and
    substituting a determinate sentence followed by a long-term supervision order.
    A long-term supervision order is appropriate where there is a reasonable
    possibility of eventual control of the risk in the community: see
R. v.
    Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357. The long-term supervision order
    must be capable of reducing the threat to an acceptable level. The fresh
    evidence does not meet that test. Even Dr. Bradfords opinion was premised on
    successful use of a number of different pharmacological and behavioural tools.
    Given the appellants long history of serious sexual offences and violent
    conduct and his resistance to treatment, it was nothing more than a hope that
    the appellants dangerousness might be controlled in the community.

[15]

The
    appellants participation in the high intensity sex offender treatment program
    is to be commended, as is his most recent conduct in the institution. However,
    it must be borne in mind that the appellant has previously expressed an
    interest in treatment, at the 1994 sentencing and the 2001 dangerous offender
    proceeding. In both cases, he subsequently refused treatment. The most recent
    interest in treatment while this appeal was pending, some eight years after the
    dangerous offender finding, must be viewed with scepticism. It is too slender a
    foundation to warrant putting the safety of the public at risk, given the
    appellants history.

[16]

Given
    the record that was before the sentencing judge as supplemented on this appeal,
    the conclusion of this court in
R. v. T.L.
, 2008 ONCA 766, at paras. 5-7
    applies:

We confess to some difficulty in understanding why an appeal
    would be allowed when everyone agrees that even if the LTO order was available
    to the appellant at the time of sentencing, he was properly declared a
    dangerous offender at the trial. In other words, it is conceded by everyone
    that the dangerous offender order was the correct order. We do, however,
    acknowledge that on sentence appeals from time to time this court considers
    evidence of post sentencing events that may cause the court to vary a sentence
    that was fit when imposed.

The appellant's argument is based exclusively on alleged post
    sentence changes in the appellant which at best make him a potential candidate
    for an LTO designation. Dr. Ben-Aron's opinion is guarded but hopeful. There
    are however many contingencies or uncertainties that would have to be fully
    explored before the ultimate merits of the release of the appellant into the
    community could be determined.

From an institutional perspective, we think the parole board
    exercising its jurisdiction under section 761 of the
Criminal Code
is in
    a much better position than a trial court to make the necessary assessments.
    There would be many problems associated with a new dangerous offender hearing
    so many years after the relevant events, not the least of which would be the
    possibility of re-traumatizing all of the victims through the need to appear
    and testify at a new hearing.

[17]

It
    may be that in a proper case, this court could allow an appeal from a dangerous
    offender finding where the fresh evidence is sufficiently compelling to show
    that the original order was unnecessary. That is not this case. Accordingly,
    the appeal is dismissed.

Signed:        M. Rosenberg J.A.

E.E.
    Gillese J.A.

 Alexander
    Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Johnson, 2012
    ONCA 339

DATE: 20120523

DOCKET: C53880

Laskin, Armstrong and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frederick Johnson

Appellant

Alex Burns, for the appellant

Scott Latimer, for the respondent

Heard: October 21, 2011

On appeal from the sentence imposed by Justice M. Agro of
    the Ontario Court of Justice on February 2, 2011.

R.A. Blair J.A.:

Overview

[1]

Mr. Johnson has committed 26 bank robberies over the past 14 years.
    Twenty-five were committed while he was in the community on parole or other
    form of release from custody.

[2]

In November, 2010, Mr. Johnson was serving the remaining 9 years of a 12-year
    sentence imposed in 2004 following his conviction on 6 counts of robbery.  On
    November 16th of that year, he was released from the penitentiary on a
    temporary absence pass.  He did not return.

[3]

Over the next three weeks Mr. Johnson robbed nine more banks.  For these
    crimes, Justice M. Agro of the Ontario Court of Justice sentenced him to a
    total of 14 years, to run consecutively to the 9 years remaining on his
    previous sentence.  Mr. Johnson submits that a total of 23 years is simply too
    much.  He asks us to reduce the sentence or, in the alternative, to order that
    the sentence be varied to run concurrently with the previous sentence.

[4]

I would not do the latter, but for the reasons that follow I would grant
    leave to appeal and vary the sentence to a global sentence of 20 years.

Facts

[5]

The appellant is an inveterate, if not incorrigible, bank robber.  In
    1997, he was sentenced to two years imprisonment for a single bank robbery.
    In 2000, he was sentenced to eight years on ten counts of bank robbery,
    consecutive to any sentence he was then still serving.  In 2004, he was
    sentenced to 12 years imprisonment on another 6 counts of bank robbery,
    consecutive again to any other sentence he was already serving.  The robbery
    spree leading to the current convictions and sentences in February, 2011, involved
    nine further banks. He was on parole, statutory release or a temporary absence
    pass when he committed all of his robberies, except the first.  He was 54 years
    old when he committed the current offences.

[6]

The appellants
modus operandi
is what is known as the “note pass” robbery.  He gives the teller a note indicating that he is armed and demanding money.  There is no physical or verbal violence or brandishing of weapons.  The appellant was not wearing a disguise during the current robberies and the judge found that he did not have or use a weapon.  His crimes appear to have been driven by his addiction to drugs.

[7]

In the appellants favour, when he was arrested by the police he made a
    full confession, accepted responsibility for the robberies, and co-operated
    fully.  He pled guilty to all nine counts at an early stage of the proceedings
    thus saving court resources and sparing his victims the necessity of attending
    to testify.

[8]

As aggravating factors, the sentencing judge took into account that the
    robberies were committed while the appellant was on a temporary absence pass,
    that they involved the threat of a weapon, that bank employees are a vulnerable
    segment of society, and that the appellant has an extensive criminal record,
    including (but not limited to) the convictions for the robbery offences
    outlined above.

[9]

The sentencing judge concluded that a 14-year sentence concurrent on
    each of the 9 counts and consecutive to the sentence the appellant was then
    still serving was appropriate in all the circumstances.  Speaking directly to
    the appellant, she said:

Having weighed the aggravating circumstances, the mitigating
    circumstances, taking [into] account the facts, taking into account your
    background, I am of the view that the principles of sentencing that are to be
    addressed here are general and specific deterrence, denunciation and the
    protection of society, and in particular other bank tellers.  I do not consider
    rehabilitation to be a factor.  You have had the benefits of some counselling
    while you have been incarcerated over the years.  It worked for a while, it has
    not worked since.  I will certainly make a recommendation on the warrant that
    you be afforded every opportunity for more intensive drug addiction programs,
    particularly addressed to cocaine.  But whether or not that is successful sir
    is frankly not going to have anything to do with the length of my sentence.

Analysis

[10]

Mr.
    Burns raises a number of arguments on behalf of the appellant, but only the
    submission that the sentence fails to take into account the principle of
    totality warrants full consideration, in my view.

Other Grounds

[11]

In
    spite of Mr. Burns argument to the contrary, I am satisfied that the
    sentencing judge properly took into account the appellants guilty pleas and
    his co-operation with the authorities, and that she was entitled in these
    circumstances  particularly given the appellants unremitting record for bank
    robbery and other crimes  to give priority to the principles of general and
    specific deterrence, denunciation and the protection of society.  The
    appellants prospects of rehabilitation appear to be remote at best.  I do not
    think the sentencing judge partially based her sentence on victim impact
    statements she had reviewed in other cases and that were not part of the record
    before her; she simply called upon her experience, as trial judges are entitled
    to do in such circumstances.

[12]

Nor
    am I persuaded that a sentence of 14 years imprisonment is excessive for the
    robberies here.  While there are examples in the authorities of lower sentences
    in similar circumstances, there are also examples of sentences in a similar or
    higher range:  see, for example,
R. v. Stairs
(1994), 73 O.A.C. 79 (life
    imprisonment);
R. v. Bergeron
, [1982] O.J. No. 80 (C.A.) (14 years);
R.
    v. Wolynec
, 2007 ONCA 826, [2007] O.J. No. 4662 (13 years);
R. v.
    Dennis
(2005), 202 O.A.C. 146 (16 years);
R. v. Duhamel
, [2004]
    O.J. No. 1164 (C.A.) (12 years);
R. v. Nikolovski
(2005), 194 O.A.C.
    258 (12 years).  Here, the appellant, himself, sought a sentence of nine years
    consecutive to the remainder of his prior sentence.

[13]

While
    note passing robberies may not be as violent as other forms, this Court has
    made it clear that they remain a very serious crime capable of instilling fear
    and trauma into victimized bank tellers:
R. v. MacCormack
, 2009 ONCA
    72, 245 O.A.C. 271, at para. 88.

[14]

That
    said, the sentencing judge does not appear to have given any consideration to
    the principle of totality in arriving at her decision, although she clearly
    recognized that the 14-year sentence she was imposing was to be consecutive to
    the sentence the appellant was then serving.

The Totality
    Principle

[15]

A
    foundational principle of the Canadian sentencing regime is the principle of
    proportionality: [a] sentence must be proportionate to the gravity of the
    offence and the degree of responsibility of the offender:
Criminal Code
,
    s. 718.1.  This principle is based upon the fundamental notion that the punishment
    must fit the crime and that the degree of punishment must reflect the gravity
    of the offence and the moral blameworthiness of the offender.  Otherwise,
    society will have no confidence in the law or the fairness and rationality of
    the legal system: see
Re B.C. Motor Vehicle Act
, [1985] 2 S.C.R. 486,
    at p. 533.

[16]

An
    important component of the principle of proportionality is the principle of
    totality, which is embedded in s. 718.2(c) of the
Criminal Code
:

A court that imposes a sentence shall also take into
    consideration the following principles:

(c) where consecutive sentences are imposed, the combined
    sentence should not be unduly long or harsh.

[17]

In
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at para. 42, Chief Justice Lamer
    explained the rationale underlying the totality principle and its nexus with
    proportionality:

In the context of consecutive sentences, this general principle
    of proportionality expresses itself through the more particular form of the
    totality principle.  The totality principle, in short, requires a sentencing
    judge who orders an offender to serve consecutive sentences for multiple
    offences to ensure that the cumulative sentence rendered does not exceed the
    overall culpability of the offender.  As D.A. Thomas describes the principle in
Principles of Sentencing
(2
nd
ed. 1979), at p. 56:

The effect of the totality principle
    is to require a sentencer who has passed a series of sentences, each properly
    calculated in relation to the offence for which it is imposed and each properly
    made consecutive in accordance with the principles governing consecutive
    sentences, to review the aggregate sentence and consider whether the aggregate
    sentence is just and appropriate.

Clayton Ruby articulates the principle in the following terms
    in his treatise,
Sentencing
, [4
th
ed. (Toronto:
    Butterworths, 1994)], at pp. 44-45:

The purpose is to ensure that a
    series of sentences, each properly imposed in relation to the offence to which
    it relates, is in aggregate just and appropriate.  A cumulative sentence may
    offend the totality principle if the aggregate sentence is substantially above
    the normal level of a sentence for the most serious of the individual offences
    involved, or if its effect is to impose on the offender a crushing sentence
    not in keeping with his record and prospects.

[18]

In
    short, a combined sentence must not be unduly long or harsh in the sense that
    its impact simply exceeds the gravity of the offences in question or the
    overall culpability of the offender. The overall length of the custodial period
    imposed must still relate to and reflect the variety of sentencing goals,
    including denunciation, deterrence (specific and general), rehabilitation, the
    need to separate offenders from society where necessary, and the general
    imperative of promoting respect for the law and the maintenance of a just, peaceful
    and safe society:
Criminal Code
, s. 718.  In this regard, the
    authorities recognize that where the ultimate effect of the combined sentences
    is to deprive the offender of any hope of release or rehabilitation, the
    functional value of these sentencing principles meets the point of diminishing
    returns: see
R. v. C. (J.A.)
(1995), 26 O.R. (3d) 462 (C.A.).  This
    point was reinforced by Lamer C.J. in
M.(C.A.)
, at para. 74.

[19]

There
    are at least two types of situation where the principle of totality in the context
    of consecutive sentences may arise.  The first is where a single judge must
    deal with a series of offences, some of which require the imposition of
    consecutive sentences having regard to the criteria for such sentences.  A
    second  which is the case here  concerns a situation where a sentencing judge
    must impose a fit sentence on an offender convicted of one or more offences
    where that offender is at the same time serving the remainder of a sentence for
    a previous conviction or convictions.

Section 718.2(c) of the
Criminal Code
draws no
    distinction between these two types of scenario, and this Court and others have
    recognized that the totality principle applies where the offender is serving
    the remainder of a previous sentence:
R. v. Cathcart
, [1976] O.J. No.
    1225 (C.A.);
R. v. Gorham
(1987), 22 O.A.C. 237;
R. v. Bond
,
    [2005] O.J. No. 108 (C.A.);
R. v. Reid
, [2003] O.J. No. 3255 (C.A.);
R.
    v. Evans
(1975), 11 N.S.R. (2d) 91 (C.A.);

R. v. Bueger
(1994), 48 B.C.A.C. 266;
R. v. Saran
(1996), 113 Man. R. (2d) 205
    (C.A.);
R. v. Parry,
2012 ONCA 171, [2012] O.J. No. 1209.

[20]

Although
    they are codified, the principles of proportionality and totality are common
    law concepts and the approach outlined above is consistent with the premises
    underlying those concepts, as expressed in
M.(C.A.)
.  If sentences are
    unduly harsh and excessive, confidence in the fairness and rationality of the
    sentencing process is lost  see
Re B.C. Motor Vehicle Act
, at p. 533
    and where consecutive sentences are unduly harsh and excessive, the overall
    length of incarceration may work against the attainment of the various goals of
    sentencing.  This is particularly so where, as here, the combined effect of the
    sentences threatens to encroach upon  or exceed  the offenders reasonable life
    expectancy.  Chief Justice Lamer underlined this rationale, at para. 74 of
M.(C.A.)
:

However, in the process of determining a just and appropriate
    fixed-term sentence of imprisonment, the sentencing judge should be mindful of
    the age of the offender in applying the relevant principles of sentencing.
After
    a certain point, the utilitarian and normative goals of sentencing will
    eventually begin to exhaust themselves once a contemplated sentence starts to
    surpass any reasonable estimation of the offenders remaining natural life
    span.
Accordingly, in exercising his or her specialized discretion under
    the
Code
, a sentencing judge should generally
refrain from
    imposing a fixed-term sentence which so greatly exceeds an offenders expected
    remaining life span that the traditional goals of sentencing, even general
    deterrence and denunciation, have all but depleted their functional value.
But with that consideration in mind, the governing principle remains the same:
    Canadian courts enjoy a broad discretion in imposing numerical sentences for
    single or multiple offences, subject only to the broad statutory parameters of
    the
Code
and the fundamental principle of our criminal law that global
    sentences be just and appropriate. [Emphasis added.]

[21]

The
    potential for unduly harsh sentences to frustrate the goals of the process
    exists whether the offender is incarcerated for an excessive period of time
    because of one sentence or a series of sentences imposed by the same judge, on
    the one hand, or because of the combined effect of a new sentence imposed by a
    subsequent judge and the remainder of an existing sentence.

[22]

At
    the same time, there is an additional level of concern that comes into play
    where a subsequent sentence is imposed on top of the remainder of an existing
    one, and, as a result, the totality principle has a somewhat tempered effect in
    such circumstances, in my view.  The underlying rationale of the sentencing
    regime supports this notion, too.

[23]

The
    system must be seen to be fair and rational  both to the offender and the
    community  and its integrity must be preserved.  Just as a sentence cannot be
    unduly harsh and excessive, neither can it be overly lenient or unresponsive to
    other purposes and principles that underpin the sentencing regime  denunciation,
    deterrence, the promotion of a sense of responsibility in offenders and
    acknowledgement of harm done to victims and the community, and the protection
    of the public:
Criminal Code
, s. 718.  In this sense, an offender such
    as the appellant ought not to be seen to be reaping benefits from his previous
    serious criminal misconduct.  As this Court observed in
Gorham
:

It was argued that, in its totality, the sentence was too
    severe and crushing.  In our view the principle of totality must have a
    substantially reduced effect upon a sentence where a part of the total term is
    based upon a remanet.  Neither one who is unlawfully at large nor one who is at
    liberty on mandatory supervision should be entitled to benefit from the remanet
    which must be served if a new offence is committed.

[24]

I
    read this not as an indication that the principle of totality has only minimal
    application in situations where the offender is serving the remainder of an
    existing sentence.  The Court said only that the principle will have a
    substantially reduced effect in such circumstances. I take the Court to be
    indicating, rather, that there are other considerations regarding the need to
    protect the integrity of the sentencing process  public confidence in the
    fairness and rationality of the system, in the words of Wilson J. in
Re
    B.C. Motor Vehicle Act
 that must be taken into account in such
    circumstances.  This need to protect the integrity of the sentencing process,
    and the overall purposes and goals of sentencing, are to be balanced against
    the recognition that there will be situations where, globally speaking, a
    combined sentence will simply be too harsh and excessive.

[25]

In
Sentencing: The Practitioners Guide,
the authors suggest that the
    court will balance the length of the unexpired term of the offenders sentence
    against the aggravating effect of the commission of an offence while on parole
    [or other form of temporary release]: Gary R. Clewley, Paul G. McDermott and
    Rachel E. Young,
Sentencing: The Practitioners Guide

(Toronto:
    Canada Law Book, 2011), at para. 1.570(d).  I agree to the extent that, at the
    end of the day, the subsequent sentencing judge will determine how much weight
    to give to the existing remaining sentence by assessing whether the length of
    the proposed sentence
plus
the existing sentence will result in a just
    and appropriate disposition that reflects as aptly as possible the relevant
    principles and goals of sentencing in the circumstances.

Application of
    the Totality Principle in the Circumstances

[26]

Here,
    the sentencing judge did not address her mind to the principle of totality.  Having
    regard to the foregoing considerations, I am persuaded that the combined
    sentence of 23 years imprisonment imposed on the appellant is unduly long and
    harsh.  I would reduce each of the concurrent sentences of 14 years in relation
    to the 9 current convictions to 11 years for a global sentence of 20 years.

[27]

Although
    he is apparently unremitting in his commitment to a life of crime, the appellant is not the worst of the world’s bank robbers nor are his robberies the worst of that type of crime.  The appellant’s “note passing”
modus operandi
has not involved the actual use of real or imitation weapons, although it threatened such use.  The robberies were very serious, as I have noted above, but they were not armed robberies.

[28]

The
    appellant was 54 years old at the time of his most recent convictions and the
    14-year concurrent sentences accompanying them.  He is a hardened and chronic
    recidivist  particularly when it comes to bank robberies  but he did express
    remorse by pleading guilty and in his comments at the sentencing hearing
    appears to have been reaching out for assistance in coping with his drug
    addiction.  The sentencing judge excluded rehabilitation from her deliberations
    because she felt that, although the appellant had had some counselling over the
    years during his incarcerations, [i]t worked for a while, [but] it has not
    worked since.

[29]

In
    my view, the appellants potential for rehabilitation should not have been
    disregarded completely, albeit that his antecedents suggest the prospects may
    be dim and that the concepts of denunciation, deterrence and protection of the
    public are paramount in these circumstances.  As Professor Allan Manson notes
    in
The Law of Sentencing
(Toronto: Irwin Law, 2001), at p. 102,
    [e]ven when there is little evidence of positive rehabilitative prospects,
    total sentences should not be so long as to crush optimism about eventual
    re-integration.  See also
R. v. Manybears
, 2009 ABCA 82, 457 A.R. 101,
    at para. 8.  To repeat the guiding language of Lamer C.J. in
M.(C.A.)
,
    at para 74:

the sentencing judge should be mindful of the age of the
    offender in applying the relevant principles of sentencing.
After a
    certain point, the utilitarian and normative goals of sentencing will
    eventually begin to exhaust themselves once a contemplated sentence starts to
    surpass any reasonable estimation of the offenders remaining natural life
    span.
Accordingly, in exercising his or her specialized discretion under
    the
Code, a sentencing judge should generally refrain from imposing a
    fixed-term sentence which so greatly exceeds an offenders expected remaining
    life span that the traditional goals of sentencing, even general deterrence and
    denunciation, have all but depleted their functional value.
[Emphasis
    added.]

[30]

If
    the sentences under appeal are upheld, the appellant would be 77 years old after
    serving a total sentence of 23 years.  While not greatly exceed[ing] [his]
    expected remaining life span, perhaps, the combined sentence comes close to
    the point of crushing all hope.  Some might say that a person in the
    appellants position deserves such an outcome.  But I do not believe it to be
    what the principle of totality calls for here.

Disposition

[31]

In
    all of the circumstances, I am persuaded that a global sentence of 23 years
    imprisonment is unduly long and harsh.  At the same time, the principle of
    totality is tempered and must co-exist with other considerations relating to
    the integrity of Canadas sentencing regime where the crimes for which the
    offender is currently being sentenced were committed while the offender was on
    parole or other form of statutory release in relation to a prior existing
    sentence.  This is particularly so where  as here  the offender is a serial
    criminal committing serious crimes.  The appellants history and extensive
    criminal record, together with the need for deterrence, denunciation, promotion
    of a sense of responsibility in the offender and acknowledgement of harm done
    to victims and to the community, as well as the protection of the public in his
    case, require a stiff consecutive sentence.

[32]

In
    varying the sentence, as I propose to do, I emphasize that in my opinion the
    concurrent sentences of 14 years imprisonment on the 9 robbery charges were
    quite appropriate, viewed alone.  A totality of 23 years imprisonment is unduly
    long and harsh, however  for all of the reasons outlined above  and I would
    accordingly reduce the global sentence to one of 20 years in order to achieve a
    result that I believe to be just and appropriate in all of the circumstances.

[33]

I
    would therefore grant leave to appeal sentence and vary the concurrent
    sentences of 14 years imprisonment on the 9 counts of robbery to one of 11 years
    concurrent, to be served consecutively to the remaining 9 years of the
    appellants previous sentence.

R.A. Blair J.A.

I agree John Laskin
    J.A.

I agree R.P. Armstrong
    J.A.

Released: May 23, 2012