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    that could identify the complainant or a witness shall not be published in any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. G.T., 2015 ONCA 221

DATE: 20150402

DOCKET: C55221

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G. T.

Appellant

Taro Inoue, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: March 12, 2015

On appeal from the conviction entered on December 22,
    2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of attempted aggravated sexual assault after
    a trial before a Superior Court judge sitting without a jury on a single count
    of aggravated sexual assault.

[2]

On his appeal from conviction the appellant says that the trial judge
    erred:

i.

in failing to caution himself about the dangers of making unassisted
    handwriting comparisons of two documents filed as exhibits at trial and in
    concluding that the appellant was their author; and

ii.

in failing to properly apply the
W.(D.)
analysis to the
    critical factual issue at trial, that is to say, whether the appellant and the
    complainant engaged in unprotected sexual activity after the appellants HIV
    positive diagnosis on March 7, 2006.

[3]

We would not give effect to either ground of appeal.

[4]

To take first the handwriting point. The appellant acknowledges that it
    was open to the trial judge to make a comparison between the known handwriting
    of the appellant, his signature on an affidavit, and the contested document, a
    motel registration card said to reflect the attendance of the appellant and
    complainant at a motel where the complainant said unprotected sexual
    intercourse occurred on a date after the appellant was diagnosed as HIV
    positive, but before she learned of that diagnosis.

[5]

The trial judge accepted the evidence of the motel owner that the
    appellant and complainant stayed at the motel during the long weekend in May,
    2007. He considered the striking similarity of the signature of the
    appellants surname on the registration card and his admitted signature on an
    affidavit filed on a pre-trial motion to be confirmatory of the owners sworn
    testimony. While it may have been preferable for this very experienced trial
    judge to explicitly caution himself about the care to be taken in unassisted
    comparisons of handwriting as signalled by the decision of this court in
R.
    v. Abdi
(1997), 116 C.C.C. (3d) 385, it was not reversible error for him not
    to have done so: see
R. v. Malvoisin
(2006), 71 W.C.B. (2d) 215 (Ont.
    C.A.), at para. 4. His conclusion was a reasonable one in the circumstances of
    this case.

[6]

To take next the complaint that the trial judge failed properly to apply
    the principles of
W.(D.)
in reaching his conclusion of guilt. We
    consider this claim of error to be equally devoid of merit.

[7]

The trial judge devoted three paragraphs of his decision specifically to
    the burden of proof. This portion of his reasons includes specific reference to
    the principles expressed in
W.(D.).
For example, in para. 34 of his
    reasons, the trial judge wrote:

[34]    If the testimony of Mr. [T.] with respect to the
    absence of sexual contact with M.C. after December, 2005 is believed, he is
    entitled to an acquittal. But even if his testimony is not positively believed,
    he is entitled to be acquitted if his evidence leaves a reasonable doubt with
    respect to whether he continued to have sexual intercourse with her after April
    2006. And even if his evidence is rejected, it does not follow that he must be
    convicted. Rejection of his testimony would not alter the nature or incidence
    of the burden of proof: the burden would remain on the Crown to prove beyond a
    reasonable doubt on the basis of all the unrejected evidence that he did engage
    in unprotected sexual intercourse after he learned he was HIV positive.
    Rejection of his testimony or of any other evidence relied upon by the defence
    would not bolster the Crown's case. I approach my assessment of the evidence
    with those propositions clearly in mind.

[8]

Faithful to his announced intention, the trial judge concluded his
    analysis of whether the appellant had had unprotected sexual intercourse with
    the complainant after his HIV positive diagnosis in these terms:

[47]    For the reasons I have indicated, I do not believe Mr. [T.]s
    evidence that his sexual relationship with M.C. ended in December 2005, prior
    to the date on which he learned he was HIV positive. Further, his evidence does
    not leave me with a reasonable doubt in that respect. The evidence that I do
    accept  primarily the testimony of M.C. as confirmed by that of Mr. Marzilli
    satisfies me beyond a reasonable doubt that Mr. [T.] continued to have an
    intimate relationship with M.C. after he knew he was infected with HIV, and
    that he did so both before and after mid-September 2006, when he began
    antiretroviral drug treatment under the direction of Dr. Hall.

[48]    I am also satisfied beyond a reasonable doubt that the
    sexual intercourse was unprotected. Both M.C. and Mr. [T.] testified that the
    sexual intercourse they engaged in throughout their affair was often
    unprotected, notwithstanding their best intentions of using condoms. I believe
    M.C.s evidence that this continued in the time period after April 2006.

[9]

We would not give effect to this ground of appeal.

[10]

The
    appeal is dismissed.

David Watt
    J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan 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(1), (2), or (3)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.
(1)
Any
    proceedings against an accused shall be held in open court, but the presiding judge
    or justice may order the exclusion of all or any members of the public from the
    court room for all or part of the proceedings if the judge or justice is of the
    opinion that such an order is in the interest of public morals, the maintenance
    of order or the proper administration of justice or is necessary to prevent
    injury to international relations or national defence or national security.

(2)
For the purposes
    of subsection (1), the proper administration of justice includes ensuring
    that
(
a
)
the
    interests of witnesses under the age of eighteen years are safeguarded in all
    proceedings; and>

(
b
)
(3)
If
    an accused is charged with an offence under section 151, 152, 153, 153.1, 155
    or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1,
    172.2, 173, 212, 271, 272, 273, 279.01, 279.011, 279.02 or 279.03 and the
    prosecutor or the accused applies for an order under subsection (1), the judge
    or justice shall, if no such order is made, state, by reference to the
    circumstances of the case, the reason for not making an order. R.S., 1985, c.
    C-46, s. 486; R.S., 1985, c. 27 (1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c.
    23 (4th Supp.), s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9;1993, c. 45, s. 7;1997,
    c. 16, s. 6;1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34,
    133;2002, c. 13, s. 20;2005, c. 32, s. 15, c. 43, ss. 4, 8;2010, c. 3, s.
    4;2012, c. 1, s. 28.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Geddes, 2015 ONCA 292

DATE: 20150430

DOCKET: C57095

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allan Geddes

Appellant

Philip Campbell, for the appellant

Melissa Adams, for the respondent

Heard: January 8, 2015

On appeal from the conviction entered on January 2, 2013,
    by Justice Elizabeth Quinlan of the Superior Court of Justice.

Doherty J.A.:

I

OVERVIEW

[1]

In the late 1980s, the appellant, who was in his forties, engaged in
    repeated sexual activity with G.C., a young teenaged boy he had befriended. The
    relationship was exploitative and, on any reasonable view, morally repugnant. Counsel
    for the appellant submits, however, that the conduct was not criminal.

[2]

The appellant was convicted of sexual assault on the basis that G.C.s
    apparent consent to the sexual activity was vitiated by the appellants
    exercise of authority over G.C. Counsel submits that on a proper
    understanding of the term exercise of authority in s. 265(3)(d) of the
Criminal
    Code
, the evidence could not reasonably support the trial judges finding
    that G.C.s consent was vitiated. Counsel asks this court to quash the
    conviction and enter an acquittal. For the reasons that follow, I would dismiss
    the appeal.

II

THE EVIDENCE

[3]

The evidence comes primarily from the testimony of G.C. and his mother. The
    appellant did not testify. The other evidence called by the Crown was largely
    peripheral.

[4]

G.C. moved to Barrie with his parents in 1982, when he was nine-years
    old. He first met the appellant at a local arcade, where the appellant worked
    as a cashier. G.C. was about 12 or 13-years old at the time. Over the next
    year, G.C. and the appellant chatted about various things at the arcade. The
    appellant would sometimes let G.C. use the games at the arcade free of charge. Nothing
    improper happened during the first year of their relationship.

[5]

G.C. and the appellant spoke about skiing. The appellant told G.C. that
    he was an instructor and could give him lessons. After about a year, they began
    making frequent trips to a nearby ski hill, on the weekends and during the
    week.

[6]

Early in the relationship, the appellant visited G.C.s parents to ask
    permission to take G.C. skiing. The parents agreed.  After this initial meeting,
    the appellant would often pick G.C. up at his house to go skiing or on trips to
    Toronto. Sometimes, the appellant spoke with G.C.s mother.

[7]

G.C.s mother recalled the first meeting with the appellant. He
    explained to her and her husband that he had met G.C. at the arcade where he
    worked and that he often took children on outings, including skiing and
    bowling. The appellant assured G.C.s parents that he was a good person. G.C.s
    mother testified:

[H]opefully I wasnt a bad parent, but [the appellant] had made
    us feel comfortable enough that Id say good-bye to my son and out the door
    hed go. I could be busy with three other younger children.

[8]

The appellant supplied G.C. with downhill skis, a snowboard, ski-related
    clothing, and paid for his lift tickets. G.C.s family could not afford to buy
    these kinds of things for G.C. The appellant also paid for food, movie tickets
    and other entertainment when he took G.C. to Toronto.

[9]

G.C. was uncertain about his exact age when the sexual activity began.
    The trial judge found that it began after G.C. turned 14. That finding, which
    is not challenged, is significant because at the time of the alleged offences
    (1985-1989) 14 was the age of consent.
[1]
Had G.C. been under 14, consent would not have been a defence to the charge of
    sexual assault.
[2]

[10]

G.C.
    testified that the sexual activity with the appellant occurred mainly in the
    appellants car after the skiing or trips to Toronto. According to G.C., there
    was also sexual activity at the appellants apartment, at the arcade after
    closing time and at the home of one of the appellants friends. G.C. estimated
    that there were between 100 and 500 incidences of sexual activity. The activity
    included fellatio, digital penetration, attempted anal sex and masturbation.

[11]

G.C.
    indicated that the sexual activity continued for about three years until he was
    about 17 or 18-years of age. The activity stopped when G.C. kind of moved on
    and was doing different things.

[12]

G.C.
    did not see the appellant very much for a few years after the sexual activity
    stopped, although they remained friendly. They began to see each other
    regularly again when G.C. was in his early twenties, and then again lost
    contact with each other for a time. A close relationship developed when G.C.
    was about 28. This relationship between G.C. and the appellant ended in a
    dispute over financial matters relating to a house that they had jointly
    purchased for the purposes of renovation and resale. G.C. and the appellant did
    not part on friendly terms. G.C. went to the police about three years later in
    2010.

[13]

There
    was no sexual activity between G.C. and the appellant at any time after G.C.
    was about 18 years of age. Nor did the appellant attempt to initiate any sexual
    activity.

[14]

G.C.,
    testifying as an adult many years after the alleged abuse, described a confused
    and conflicted attitude towards the appellant. G.C. was adamant that he never
    wanted to engage in the sexual activity and that he knew it was wrong. He
    testified that the appellant conned him into the sexual conduct:

I think any adult that has a kid  has sex with a kid is conned.

He  like  the way he did it, it was, it was, like, it was
    always talking about sex and then going on about sex that he had, and then, you
    know, he pretty much talked me into it. And then hed you know, Id show-off from
    the beginning, and then, you know, hed like buy me shit, and make me feel
    better, and talk, like, you know, its not that bad. So many aspects of
    different ways of, you know, how it came about.

[15]

G.C.
    testified that he would often tell the appellant that he did not want to
    perform the sexual activities requested by the appellant. The appellant would
    become angry and throw in [G.C.s] face the things that [the appellant had]
    done for [him], and threaten not to take G.C. skiing or buy him things in the
    future. Eventually, G.C. would give in and do as he was asked.

[16]

G.C.
    tried to describe his feelings toward the appellant:

[A]ll that crap, sex shit and molesting crap it was wrong and
    it felt wrong, but at a certain point you become like numb to it and then if
    you, you know, you feel like its just you know, kind of like you had to do it
    or you wouldnt, you know and its like  I was groomed into being  to do
    these acts to, to do what I wanted. To do what I wanted to do too, you know. And
    at the same time, as fucked up as it is, you actually idolize the guy For
    making me feel, besides the sex part, its like hes got your back, you know and
    he got  the strange way he made you feel good about yourself too.

You know, and then it gets all twisted inside and fucked up.

And you know you dont see it for what it is when youre a kid.
    So its just like  I couldnt get it to  it would ever stop.

[17]

G.C.
    acknowledged that he was never physically forced to do anything and that on
    occasion it was he and not the appellant who set the boundaries of the sexual
    activity. According to G.C., he was talked into the sexual activity by the appellants
    persistent requests. He engaged in the activity because he wanted the material
    benefits that came from his relationship with the appellant.

III

THE TRIAL JUDGES REASONS

[18]

The
    trial judge made the following findings of fact:

·

At the time of the sexual activity, the appellant was 30 years
    older than G.C.;

·

The appellant obtained G.C.s parents permission to take G.C.
    places and was responsible for G.C. on those trips. The appellant persuaded the
    parents to allow him to take G.C. on the trips by indicating he worked with
    youth;

·

There was a clear power imbalance between G.C. and the
    appellant. The appellant offered G.C. many material things that G.C.s parents
    were not in a position to give to him. These included trips to Toronto, ski
    equipment and clothing;

·

G.C. idolized the appellant and believed that the appellant had
    his back; and

·

The appellant exploited G.C. He would constantly talk about and
    request sex from G.C. When G.C. demurred, the appellant would become angry and
    talk about the things he had done for G.C. and threaten to stop doing those
    things. Eventually, G.C. would give into the appellants requests and let the
    sex happen to get it over with.

[19]

The
    trial judge held that the nature of the relationship between the appellant and
    G.C. gave the appellant power to influence the conduct of G.C. In her view,
    this placed the appellant in a position of authority over G.C. The trial judge further
    found that the appellant used that position of authority to gain G.C.s
    submission to the appellants repeated demands for sexual activity:

I find beyond a reasonable doubt that [G.C.], a young,
    vulnerable teen, submitted because of [the appellants] threats to take away
    the activities he could not otherwise do and the things he could not otherwise
    have. I find beyond a reasonable doubt that [G.C.] submitted to the sexual
    activity with [the appellant] because of the exercise of authority.

IV

ARGUMENTS

[20]

Counsel
    for the appellant begins his cogent submissions by reference to the statutory
    framework applicable to these charges. The alleged assaults occurred between
    1985 and 1989, before the enactment of several current
Criminal Code
provisions
    relevant to the issue of consent. At the time of the alleged offences, the
    relevant part of s. 244 (now s. 265) provided:

(1) Assault  A person commits an assault when

(a) without the consent of another
    person, he applies force intentionally to that person, directly or indirectly;

(3) Consent  For the purposes of this section, no consent is
    obtained where the complainant submits or does not resist by reason of

(d) the exercise of authority

[21]

Counsel
    correctly submits that s. 273.1, enacted in 1992 (
An Act to amend the
    Criminal Code (sexual assault),
S.C. 1992, c. 38, s. 1), which speaks
    specifically to consent in the sexual assault context and provides further
    limits on the effectiveness of apparent consent, can have no application to
    these charges. Counsel makes the point that while s. 273.1(2)(c) negates the
    effectiveness of any consent induced by abusing a position of trust, power or
    authority, the narrower and applicable provision in s. 265(3)(d) negates only
    consent obtained by the exercise of authority: see
R. v. Lutoslawski
,
    2010 ONCA 207, 258 C.C.C. (3d) 1, at paras. 12-13, affd [2010] 3 S.C.R. 60.

[22]

Counsel
    moves from the statutory framework to the trial judges factual findings. He
    submits that the trial judges finding that the appellant assumed a role of
    responsibility for G.C. when he secured his parents permission to take G.C.
    skiing and on other trips is unsupported by the evidence. Counsel argues that
    the evidence of G.C.s mother goes no further than to indicate that she
    permitted her son to go places with the appellant. There was no transfer of
    parental authority or responsibility.

[23]

Counsels
    submissions next turn to the meaning of the phrase exercise of authority in
    s. 265(3)(d). He submits that apart from the unsustainable finding that the
    appellant took on some form of parental responsibility for G.C., the trial
    judges factual findings support neither a finding that the appellant had any
    of authority over G.C., nor that he exercised any authority to procure G.C.s
    consent to the sexual activity. Counsel submits that apart from the trial
    judges finding of parental responsibility, her other findings come down to a
    determination that G.C., who could in law consent to sexual activity with the
    appellant, chose to give that consent because he wanted the material and
    emotional benefits he gained from his ongoing relationship with the appellant. Counsel
    submits that the transactional nature of the sexual activity between G.C. and
    the appellant cannot render that activity non-consensual.

[24]

Crown
    counsel, in her effective submissions, agrees that s. 265(1)(d) is the only operative
    consent-related provision and that the current
Criminal Code
provisions
    directly applicable to consent in the context of sexual assaults do not apply,
    given the date of the alleged offences. Counsel accepts that on the Crowns
    theory, this was a case of apparent consent to sexual activity vitiated by the
    appellants exercise of authority over G.C. The Crown was required to prove
    beyond a reasonable doubt that G.C.s apparent consent was vitiated: see
R.
    v. Hutchinson
,
2014 SCC
    19, [2014] 1 S.C.R. 346, at paras. 4, 17.

[25]

Crown
    counsel next submits that the trial judges finding that the appellant assumed
    a parental-like responsibility for G.C. when he took him on the various trips
    is fully justified on the evidence. Counsel points to the evidence that the
    appellant attended at G.C.s home specifically to ask his parents for
    permission to take G.C. on skiing trips. In doing so, the appellant assured G.C.s
    parents that he was a good person and that he had experience taking children
    skiing and bowling. Crown counsel submits that the trial judge could reasonably
    infer, based on that evidence, that G.C.s parents allowed him to go with the
    appellant on the understanding that the appellant would assume responsibility
    for the care and protection of G.C. while he was with the appellant. On the
    Crowns argument, this finding flows naturally from the circumstances in which
    G.C.s parents came to give the appellant permission to take their son on these
    trips. It was unnecessary for G.C.s mother to express her specific
    expectations of the appellant when her son was in his care.

[26]

Crown
    counsel contends that the trial judges finding that the appellant was in a
    position of authority over G.C. was not based exclusively on the appellants
    assumption of a parental responsibility role. Crown counsel argues that the
    trial judge properly took into account all of the factors that affected the
    nature of the relationship between the appellant and G.C.

[27]

Crown
    counsel submits that on the trial judges factual findings there was an ample
    basis to conclude that the relationship was one in which the appellant had
    power and influence over G.C. and that he used that power and influence in a
    coercive manner to procure G.C.s participation in the sexual activity. Counsel
    argues that consent to sexual activity obtained by the coercive use of one
    partys power or influence over the other is vitiated by s. 265(3)(d):
R.
    v. Matheson
(1999), 44 O.R. (3d) 557 (C.A.).

V

ANALYSIS

(i)

The trial judges factual findings

[28]

Factual
    findings at trial are entitled to deference in this court. I see no reason to
    interfere with the trial judges finding that the appellant assumed parental
    responsibility when he took G.C. skiing and on other trips. The evidence of
    G.C.s mother was understandably vague, given the passage of time since the
    relevant events. However, she made it clear that the appellant sought her
    permission to take her son skiing and on other trips on the basis that he was a
    good person with experience in taking children on various recreational outings.
    In those circumstances, a reasonable parent would assume that a person in the
    position of the appellant would take responsibility for and protect their 14-year
    old child while he was with him. I do not think the trial judges finding went beyond
    that reasonable inference.

[29]

As
    the Crown argues, the trial judge did not find that the appellant was in a
    position of authority over G.C. based exclusively on any
de facto
parental responsibility the appellant had for G.C. Nor did the trial judge find
    that the appellant gained G.C.s consent to the sexual activity by exercising
    any
de facto
parental authority. The appellants responsibility for
    G.C. when they were on various trips together and the relationship he
    established with G.C.s mother were two factors, among many, that the trial
    judge properly looked to in determining the nature of the relationship between
    the appellant and G.C.

(ii)

The meaning of the exercise of authority in s. 265(3)(d)

[30]

I
    begin with the fundamental principles that underlie the criminalization of
    sexual assaults. First and foremost, the concept of consent is central to the
    distinction between criminal and non-criminal sexual conduct. As explained in
Hutchinson
,
    at para. 17:

The sexual assault offences invoke the criminal law to protect
    sexual autonomy. The
Criminal Code
and jurisprudence establish a high
    level of protection of the right to choose whether to engage in sexual activity
    and with whom. The absence of consent to sexual activity, as part of the
actus
    reus
of the offence, is judged subjectively from the complainants point
    of view.

[31]

Similarly,
    in
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 28, Major J. recognized:

The rationale underlying the criminalization of assault
    explains this. Society is committed to protecting the personal integrity, both
    physical and psychological, of every individual. Having control over who
    touches ones body, and how, lies at the core of human dignity and autonomy. The
    inclusion of assault and sexual assault in the
Code
expresses
    societys determination to protect the security of the person from any
    non-consensual contact or threats of force. The common law has recognized for
    centuries that the individuals right to physical integrity is a fundamental
    principle It follows that any intentional but unwanted touching is criminal.

[32]

Because
    the complainants consent plays a crucial role in distinguishing criminal from
    non-criminal contact, that consent must be real and reflect the exercise of the
    complainants right to choose who does and does not touch him. Long before the
Criminal
    Code
, the common law rejected as ineffective, consent obtained under a
    coerced and ill-informed will:
R. v. Jobidon
, [1991] 2 S.C.R. 714, at
    p. 740;
Norberg v. Wynrib
, [1992] 2 S.C.R. 226, per La Forest J., at
    pp. 250-52. The circumstances set out in s. 265(3), including the exercise of
    authority, identify situations in which a complainants apparent consent is
    not effective because it is not a true reflection of the exercise of the
    complainants free will.

[33]

Matheson
stands as this courts most thorough and authoritative examination of the
    phrase exercise of authority in s. 265(3)(d). The court rejected a narrow
    meaning of authority as requiring the power to command, in favour of a
    broader definition that captured relationships in which one party had the
    power to influence the conduct and actions of the other:
Matheson
, at
    pp. 587-88; see also
R. v. Audet
, [1996] 2 S.C.R. 171, per La Forest
    J., at para. 34.

[34]

I do not read
Matheson
as holding that the power of one person to influence
    another to any extent establishes authority over the other. Many people who
    are in a relationship may be influenced to engage in sexual activity by their
    partner. Influence, as it relates to true consent, is a question of degree. At
    some point, influence becomes coercion and apparent consent nothing more than submission.
    Consent that is the product of coercive influence does not reflect a true exercise
    of ones right to control ones own body. To treat coerced consent as effective
    consent is to deny the very autonomy which underlies the requirement of
    consent.

[35]

The exercise of
    influence to the point of coercion constitutes the exercise of authority for
    the purposes of s. 265(3)(d):
Lutoslawski
, at para. 12. In
Matheson
, Austin J.A. stated, at p. 588:

I am satisfied that the purpose of s. 265(3)(d) is to
    criminalize coerced sexual relationships rather than to proscribe sexual
    relationships within specific categories of relationships.

[36]

An
    accused stands in a position of authority over a complainant if the accused can
    coerce the complainant into consent by virtue of their relationship. The
    existence of a position of authority does not mean that any sexual activity
    between the accused and the complainant is non-consensual. The Crown must also
    prove beyond a reasonable doubt that the accused secured the complainants
    apparent consent to the sexual activity which is the subject matter of the
    charge by the exercise of that coercive authority over the complainant:
R.
    v. Samkov
, 2008 ONCA 192, [2008] O.J. No. 1005, at para. 7;
R. v.
    Farler
, 2013 NSCA 13, 326 N.S.R. (2d) 255, at paras. 77-78.

[37]

The
    determination of whether apparent consent is vitiated by a coercive exercise of
    authority will require an examination of the nature of the relationship between
    the accused and the complainant, as well as the specific circumstances
    surrounding the apparent consent to the sexual activity in issue. There is no
    closed list of factors relevant to the assessment of the nature of the
    relationship and no one factor is necessarily determinative of the nature of
    the relationship. Certain relationships, such as doctor-patient or
    teacher-student, will go a long way to establishing the kind of relationship in
    which a coercive exercise of authority may occur. Similarly, evidence that
    demonstrates a clear power imbalance between the parties to the relationship
    and the exploitation of that imbalance by one of the parties will be important in
    determining whether apparent consent was obtained through coercion. As La Forest
    J. said in
Audet
, at para. 20:

The relative positions of the parties have always been relevant
    to the validity of consent under Canadian criminal law. The common law has long
    recognized that exploitation by one person of another person`s vulnerability
    towards him or her can have an impact on the validity of consent.

(iii)

Can the trial judges finding stand?

[38]

The
    trial judge did not use the word coercive in describing the nature or extent
    of the appellants influence over the complainant. The trial judges findings
    as a whole, however, describe a thoroughly coercive relationship in which the
    appellant used coercion to secure G.C.s consent to repeated sexual activity. The
    trial judge referred to the clear power imbalance between the appellant and
    G.C. That imbalance arose not only from the age difference  the complainant
    was a young teenager and the appellant was in his forties  but also from the
    appellants ability to provide G.C. with material things that he could not
    otherwise afford.

[39]

On
    the trial judges findings, the appellant used the power imbalance to
    manipulate G.C. By treating G.C. as a buddy rather than a young person under
    his care, the appellant fashioned a strong emotional bond between himself and
    G.C. By giving G.C. many gifts, the appellant established himself as G.C.s
    benefactor. The appellant spent about a year developing the buddy/benefactor
    relationship before he introduced the prospect of sexual activity into the relationship.
    He did so in a way that would suggest that sex between G.C. and the appellant
    was a normal and accepted part of their relationship.  The appellant persisted
    in his sexual demands even when G.C. declined to engage in that activity. The
    appellants persistence, combined with threats to end the relationship and
    discontinue the benefits flowing from that relationship, manipulated G.C. into sexual
    activity which he did not want.

[40]

The
    trial judge accepted G.C.s evidence. G.C. testified that he repeatedly
    declined to engage in the sexual activity sought by the appellant. The
    appellant, however, would not accept G.C.s refusal. Instead, he persisted, he
    cajoled, he threatened to end their relationship and he threatened to take
    things away from G.C. that he knew G.C. valued. On G.C.s testimony, he would
    ultimately give in and let it happen. G.C.s language speaks to the coerced
    nature of the consent ultimately secured from G.C. by the appellant.

[41]

For
    these reasons, I would dismiss the appeal.

RELEASED:  DD  APR 30 2015

Doherty J.A.

I agree Paul Rouleau
    J.A.

I agree David Watt
    J.A.

[1]
See:
Criminal Code
, R.S.C. 1970, c. C-34, s. 246.1(2) (came into force
    on January 4, 1983); and
Criminal Code
, R.S.C. 1985, c. C-46, s.
    150.1(1) (came into force on January 1, 1988).

[2]
Under the current provisions of the
Criminal Code
, R.S.C. 1985, c.
    C-46, G.C. could not have consented to the sexual activity with the appellant
    until he was 16: ss. 150.1(1), (2.1). Under the current provisions, the appellant
    could have also been charged with sexual exploitation (s. 153) in respect of
    his sexual activity with G.C. when G.C. was between 16 and 18. Consent is
    irrelevant on that charge:
R. v. Audet
, [1996] 2 S.C.R. 171.


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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. J.R.M., 2015 ONCA 229

DATE: 20150408

DOCKET: C58274

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.R.M.

Appellant

Lauren M. Wilhelm, for the appellant

Joanne K. Stuart, for the respondent

Heard: March 31, 2015

On appeal from the convictions entered by Justice Kim A.
    Carpenter-Gunn, of the Superior Court of Justice, sitting with a jury, on September
    20, 2013 and the sentences imposed by Justice Carpenter-Gunn on October 18,
    2013.

ENDORSEMENT

[1]

Following a trial by judge and jury, the appellant was convicted
    of two counts of sexual interference involving S.K. and C.K., the two young daughters
    of his girlfriend.  S.K. was five years of age and C.K. was four years old at
    the time of the offences.
The appellant was
    acquitted of one count of assault in respect of each of the complainants.  He
    received a global sentence of five years imprisonment: two and one-half years,
    consecutive, on each sexual interference conviction.

[2]

The appellant appeals from his
    convictions and seeks leave to appeal his sentences.

[3]

The appellant submits that:

i)     the trial judge erred in failing to instruct the
    jury that the evidence of one complainant was not admissible on the counts
    relating to the other, and that it could not use propensity reasoning to
    support its verdicts;

ii)    the
    trial judge erred in admitting the out-of-court statements of S.K. to her
    grandparents as evidence of the truth of their contents; and

iii)    the
    jury instruction on the manner in which the jury should assess the evidence of
    S.K.s hearsay statements was fatally flawed.

[4]

We see no merit in the second and third
    submissions.  We agree with the trial judges ruling admitting S.K.s
    statements to her grandparents for their truth.  The instruction on those
    statements was adequate and there was no objection to it at trial.

[5]

We are, however, satisfied that the
    first ground of appeal must succeed.

CONVICTION APPEAL

[6]

Relying on the decision of this court
    in
R. v. M.(B.)
(1998), 130 C.C.C.
    (3d) 353 and other cases to the same effect, the appellant argues the trial
    judge erred in law by failing to instruct the jury it could not use the
    evidence relating to one count as evidence on the other counts, or use the
    evidence relating to one set of allegations concerning one complainant as bad
    character or propensity evidence in its consideration of the allegations
    regarding the other complainant.

[7]

In this case, the complainants
    allegations against the appellant were joined in one indictment.  The Crown did
    not bring a similar act application and the defence did not seek a severance.
    Accordingly, the jury heard all the Crowns evidence in respect of all
    allegations in the same trial.

[8]

The complainants first disclosed the
    appellants abuse during a weekend visit with their paternal grandparents.
    While S.K. and C.K. were watching television with their grandfather, S.K. described
    the appellants sexual abuse.  Within minutes, C.K. indicated that the
    appellant had sexually abused her too.  The core of the complainants
    descriptions of the sexual abuse was essentially identical.  Later, at their
    grandfathers request, the girls repeated their allegations to their
    grandmother.  When the police became involved shortly thereafter, both
    complainants provided videotaped statements in which they implicated the
    appellant in sexual abuse.

[9]

At trial, C.K. adopted her statement to
    the police and repeated her allegations of sexual abuse by the appellant.  S.K.
    also testified at trial.  However, she gave no evidence of any sexual
    misconduct by the appellant.  Pursuant to the trial judges ruling, S.K.s
    description of the appellants sexual conduct with her was led through the
    testimony of S.K.s paternal grandparents about S.K.s out-of-court statements
    to them.

[10]

The appellant also testified.  He
    denied any wrongdoing.

[11]

In her charge, the trial judge gave
    neither of the warnings mandated by
M.(B.).
Specifically, she did not instruct the jury that it was
    to consider each charge separately and not use evidence relating to one count
    as evidence on any of the other counts.  Nor did she tell the jury that it
    could not use the evidence on one count as proof that the appellant is the sort
    of person who would commit the offences charged.

[12]

In this case, given the interrelated
    nature and timing of the young complainants disclosure of the appellants
    abuse to their grandparents, and the substantive similarity of their
    allegations, there was little danger that the jury would engage in the type of
    prohibited propensity reasoning contemplated in
M.(B.)
.
See also
R. v. Rarru
, [1996] 2 S.C.R. 165.

[13]

However, in our view, there was a real
    danger that, absent the proper limiting instructions, the jury would engage in
    a global assessment of the complainants credibility on the sexual interference
    allegations.  This danger was heightened by the fact that the Crowns case in
    respect of S.K.s allegations depended entirely on hearsay, while the Crowns
    case pertaining to C.K.s allegations rested on her in court testimony.
    Potentially, therefore, the Crowns case was much stronger in respect of C.K.

[14]

Where, as here, a case involves
    multiple counts of sexual abuse and multiple complainants, it is incumbent on
    the trial judge to warn the jury that it cannot use the evidence on all the
    counts to prove any one count:
M.(B.)
,
at para.
41;
R. v. H.(F.J.)
(2000), 145 C.C.C. (3d) 169, (Ont. C.A.),
    at para.
12.  As we have said, this did
    not occur here.

[15]

The Crown acknowledges on appeal that
    the cross-count instruction normally should be given.  However, Crown counsel argues
    that the adequacy of the jury charge must be assessed from a functional
    perspective to determine whether it properly equipped the jury to perform its
    task.  She contends that, in the unique circumstances of this case and when the
    charge is read as a whole, the jury would have understood that it could not
    consider the evidence of one complainant as corroborative of that of the other.

[16]

In support of this contention, Crown
    counsel relies on: i) the structure of the jury charge, in which the trial
    judge examined each count, and much of the evidence related to each count,
    separately and sequentially; ii) Crown counsels warning, in his closing
    address to the jury, against the use of evidence pertaining to one count as
    corroborative of the other counts; iii) the propensity instruction provided to
    the jury regarding the appellants criminal record; iv) the fact that the
    appellant was acquitted on the two assault charges, suggesting the jury
    considered the evidence on each count separately; and v) the appellants
    failure to request the limiting instruction in question and his related failure
    to object to its absence from the jury charge.

[17]

We accept that the jury charge must be
    read as a whole and from a functional perspective.  However, none of the
    factors identified by Crown counsel, either alone or cumulatively, cures the
    non-direction in this case.  Indeed, virtually all the factors relied on by the
    Crown, described above, were considered, and specifically rejected, by this
    court in
H.(F.J.)

as insufficient to
    overcome the type of non-direction at issue here:
H.(F.J.)
,
at para. 17 (regarding the structure and contents of the
    jury charge); at para. 20 (concerning warnings about the law provided by
    counsel in their closing addresses to the jury); and at paras. 22-23 (regarding
    the acquittal of an accused on some charges and his convictions on others, on a
    multi-count indictment).

[18]

In the circumstances of this case, the
    non-direction at issue is fatal to the sexual interference convictions.  As in
H.(F.J.)
,
the problem with the charge here, is
    its silence about what the jury could not do with the evidence of one
    complainant in relation to that of the other.  And, again as in
H.(F.J.)
,
given the similarities between S.K.s and C.K.s
    allegations, there was a real danger that, absent adequate warning, the jury
    might improperly consider the evidence of one of the complainants as
    corroborative of that of the other.

[19]

We are unable to conclude that there is
    no reasonable possibility that the jury could have returned different verdicts
    on the sexual interference charges.  Accordingly, this is not an appropriate
    case for application of the proviso.  See
H.(F.J.)
,
at paras. 24-25.

Disposition

[20]

The conviction appeal is allowed and a
    new trial is ordered on the two sexual interference counts.  In light of this
    disposition, we do not reach the appellants application for leave to appeal
    sentence.

Doherty
    J.A.

E.A.
    Cronk J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khairi, 2015 ONCA 279

DATE: 20150422

DOCKET: C56660

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Khairi

Appellant

Richard Litkowski, for the appellant

Christine Tier, for the respondent

Heard: April 15, 2015

On appeal from the conviction entered on November 11,
    2012 and the sentence imposed on December 7, 2012 by Justice Robert A. Clark of
    the Superior Court of Justice, sitting with a jury.

By the Court:

iNTRODUCTION

[1]

The appellant was convicted of second degree murder for the stabbing and
    killing of his wife, Ranjdida Khairi.

[2]

The victim was killed in the family apartment where she lived with the
    appellant and their six children. There was evidence that the appellant was
    abusive and that his wife had told him that she was going to leave him and take
    the children with her.

[3]

The appellant admitted the killing. He contended that he lacked the
    intent for murder due to mental health issues. Alternatively, he claimed that
    he stabbed his wife in the heat of passion, caused by her allegedly provocative
    words and conduct.

[4]

The circumstances of the killing were horrific. The fatal wound sliced
    through the victims neck, cutting through her neck muscles and voice box and nicking
    her spine. The appellant also stabbed her five times in the torso. Two knives
    were used in the attack. The medical evidence indicated that the flow of blood
    into the victims airway would have impaired her breathing, but she may have
    been conscious for up to five minutes before death.

[5]

The appellant was sentenced to life imprisonment, with a minimum period
    of 15 years of parole ineligibility. He appeals his conviction and seeks leave
    to appeal his sentence.

ANALYSIS

[6]

The grounds of appeal of conviction are as follows:

(a)

the trial
    judge erred in failing to grant a mistrial after the Crowns inflammatory
    opening and by failing to give any ameliorating instruction after the Crowns inappropriate
    closing;

(b)

the trial
    judge erred in failing to give a
W.D.
instruction in response to a
    question from the jury;

(c)

the trial
    judge misstated the evidence of one of the expert witnesses; and

(d)

the trial judge
    failed to properly relate the evidence to the statutory defence of provocation.

(a) The Crown opening and closing

[7]

We agree with the submission of counsel for the appellant that the opening
    statement of the Crown (who was not counsel on appeal) was improper. As he
    points out, the facts would quite understandably evoke a sense of revulsion in
    the jury and restraint was required. The opening was inflammatory,
    argumentative and lengthy.

[8]

Immediately after the Crowns opening, defence counsel indicated that he
    intended to bring a motion for a mistrial. The trial judge said he had
    anticipated that motion and invited counsel to make submissions. The
    appellants counsel said he needed time to prepare the motion and asked the
    trial judge to recess over the long weekend before hearing submissions.

[9]

The mistrial motion was heard the following Tuesday. At the end of the
    submissions, the trial judge dismissed the motion, concluding that the
    prejudice could be addressed by a jury instruction. He proceeded to instruct
    the jury that the Crowns remarks exceeded the scope of a proper opening
    statement. He told them that the facts of the case were not proven until they
    found them so, the opening statement was not the proper place for argument and
    they should disregard argument. He also cautioned the jury that they were required
    to consider the evidence dispassionately and should not permit the nature of
    the wounds or the Crowns references to them to inflame or prejudice them
    against the appellant.

[10]

It
    is disturbing that after repeated references by this court to the responsibility
    of Crown counsel to display restraint and impartiality in addressing the jury,
    instances of rhetorical over-zealousness continue to occur: see
R. v. A.T
.
,
2015 ONCA 65, at paras. 26-31;
R. v. Mallory
, 2007 ONCA 46,
220 O.A.C. 239,
at paras. 338-340.

[11]

Having
    said that, it is well settled that a trial judge has the discretion to
    determine whether to grant a mistrial: see
R. v. A.G.,
2015 ONCA 159,
    at para. 51;
Mallory
, at para. 343. The appellant has identified no
    error that would warrant our intervention and we dismiss this ground of appeal.
    We would add that any prejudice that might have been caused by the opening was
    properly addressed through the trial judges instruction.

[12]

Nor
    do we give weight to the submission that the Crown closing was improper or
    required a jury instruction. The appellants principal submission on this issue
    is that the Crown invited the jury to speculate on the manner of the killing  namely,
    that the appellant first cut her throat, causing massive blood loss and then, to
    hasten her death, held her down and proceeded to inflict five wounds to her
    torso with a different knife.

[13]

It
    is accepted that the closing may contain some measure of argument and advocacy:
R. v. Boudreau
, 2012 ONCA 830,
104 W.C.B. (2d) 862,
    at para. 15
;
Mallory
, at paras. 339-40. The sequence of
    stabbings was relevant to the appellants intent and the Crowns closing tied
    the evidence to this issue. The Crowns theory was supported by the evidence
    and it was entitled to put that theory to the evidence. We see no error.

(b) The jury question and
W.D.

[14]

The
    appellant submits that the trial judge erred by not giving a
W.D.
instruction in response to one of several questions asked by the jury. In
    answering the jurys second question, the trial judge, at the request of the
    appellant, included a
W.D.
instruction. The charge itself had included
    a
W.D.
instruction.

[15]

The
    third and fourth questions were related and bore some similarity to the second
    question. Essentially, the jury asked whether, if they rejected certain
    portions of the appellants evidence concerning a sequence of events, they were
    nevertheless entitled to accept other parts of his evidence.

[16]

In
    his submissions concerning the proposed answer to these questions, the
    appellants counsel asked for another brief recital of the
W.D.
instruction.

[17]

The
    trial judge rejected this request, observing that the jurys question was
    simply about the fact-finding process and not about the burden of proof. He
    pointed out that he had given the
W.D.
instruction two hours earlier
    in response to the jurys second question. He proceeded to answer the third and
    fourth jury questions by re-instructing the jury on their entitlement to
    believe none, some or all of the evidence of a witness and told them that
    whether they accepted some parts of the evidence and rejected other parts was a
    matter of logic and common sense. He elaborated with examples, told them they
    must examine all the evidence and cautioned that they must not engage in
    conjecture and speculation.

[18]

We
    do not accept the appellants submission on this issue. The trial judges
    charge explained the presumption of innocence, the burden of proof, the
    requirement of proof beyond a reasonable doubt and the practical operation of
    the principles in
W.D.
He repeated the
W.D.
instruction in
    his answer the second jury question.

[19]

What
    the jury needed by way of answer to the third and fourth questions, and what
    the trial judge gave them, was a clear repetition and elaboration of his
    instruction that they were entitled to accept none, some or all of the
    appellants evidence and that they were to apply logic and their own common
    sense. The jurys questions, considered in context, did not call for a
    repetition of the
W.D.
instruction. We agree with the respondent that
    such an instruction might have confused the jury, rather than enlightening
    them. We therefore reject this ground of appeal.

(c) The expert evidence

[20]

The
    appellant submits that the trial judge failed to give a fair, accurate and
    balanced summary of the evidence of Dr. John Bradford, a psychiatrist called by
    the defence.

[21]

Dr.
    Bradford interviewed the appellant some four years after the killing. He diagnosed
    him as having post-traumatic stress disorder and recurrent major depression.
    Depending on the circumstances, this could have made him irritable and more
    prone to losing his temper. Dr. Bradford expressed the opinion, however, that the
    appellant would have known what he was doing at the time and could appreciate
    whether it was right or wrong.

[22]

The
    appellant was subjected to a number of tests including tests measuring his
    cognitive functioning and tests to determine whether he might be malingering.

[23]

Dr.
    Bradford testified that the appellant performed in the low range in some of the
    tests, not because he had cognitive difficulties but because he made a poor
    effort on the test. The appellant was tested to determine whether he was
    malingering amnesia and the test showed that he was.

[24]

The
    appellant asserts that the trial judges references to malingering amnesia
    undermined his defence based on diminished capacity. He notes that Dr. Bradford
    also testified that the appellants memory difficulties were real and were
    linked to post-traumatic stress disorder and depression.

[25]

In
    our view, the trial judge painted a fair picture of Dr. Bradfords evidence. He
    told the jury that Dr. Bradford diagnosed the appellant as having several
    recognized mental disorders and told them they could rely on his opinions,
    provided they found a factual basis for them. Much of Dr. Bradfords opinion
    was based on the appellants recounting of his personal and medical history.
    The jury had the benefit of hearing from the appellant himself and would have been
    able to compare their assessment of his evidence with the information he
    recounted to Dr. Bradford. The references to the appellants malingering did
    not misstate or distort the evidence.

[26]

We
    therefore reject this ground of appeal.

(d) Provocation

[27]

The
    trial judge gave a rolled up charge, referring to the evidence concerning the
    appellants mental health, marital issues and the allegedly provocative words
    and conduct of the victim on the issue of intent for murder. He also gave a
    lengthy instruction on provocation. At the conclusion of that instruction, he
    told the jury that as he had already referred to the main parts of the evidence
    concerning the appellants mental condition and his relationship with his wife,
    he was not going to repeat that evidence, but told them to consider it in
    relation to the partial defence of provocation.

[28]

In
    response to a defence objection at the end of the charge, the judge gave a
    further instruction, telling the jury that they were required to consider the
    appellants evidence concerning the allegedly provocative actions and words of
    his wife in relation to the issues of intent and the partial defence of
    provocation. He also told them that those actions and words, standing alone,
    could be a sufficient basis for them to have a reasonable doubt about whether
    he had the intent for murder.

[29]

In
    our view, the trial judge was not required to repeat his review of the evidence
    relating to provocation: see
R. v. Jacquard
, [1997] 1 S.C.R. 314, at
    para. 14
.
Having heard the evidence reviewed once, the jury did not
    have to hear it again.

[30]

The
    appellant also says the trial judge failed to explain that conduct that fails
    the ordinary person test on provocation in s. 232 of the
Criminal Code
must
    nevertheless be considered in determining whether he had the necessary intent
    for murder. He says that in the absence of such an instruction, the jury may
    have thought that the evidence was only relevant to intent if it met the
    specialized meaning of s. 232  see
R. v. Bouchard
,
2013
    ONCA 791,
305 C.C.C. (3d) 240, at paras. 54-69, affd. 2014 SCC 64,
    [2014] 3 S.C.R. 283.

[31]

In
    our view,
Bouchard
is inapplicable. In that case, the majority found
    that the trial judge had told the jury that the statutory definition of
    provocation was applicable to assessing the impact of the deceaseds allegedly
    provocative conduct on the appellants
mens rea
. It was not made
    clear to the jury that the victims acts and words and the appellants response
    to them were relevant to the appellants state of mind, even if they did not
    meet the statutory requirements of provocation.

[32]

We
    agree with the respondent that this charge, both in structure and content, did
    not display a similar error.

(e) The sentence appeal

[33]

The
    Crown had asked for a 17-year period of parole ineligibility. The defence had
    asked for a period of ten to eleven years, based on the appellants mental
    health problems, his age and the absence of any record of violence.

[34]

The
    appellant submits that in arriving at a 15-year period of parole ineligibility
    the trial judge underemphasized mitigating factors and overemphasized
    aggravating factors.

[35]

The
    trial judge gave lengthy reasons for sentence. He rejected most of the
    appellants evidence unless it was independently corroborated.

[36]

We
    accept the appellants submission that the trial judge erred in stating that
    the jurys verdict was necessarily a rejection of the appellants evidence
    concerning the victims provocative words and actions. The jury may have
    accepted his evidence, but concluded that the conduct did not reduce his intent
    or rise to the level of provocation. We are not satisfied, however, that this
    error had a material effect on the sentence.

[37]

The
    trial judge identified relevant mitigating and aggravating factors. The
    mitigating factors included:

·

the fact that the appellant was a first offender;

·

the appellants age, which he found was 65, rejecting the
    appellants evidence that he was 75;

·

the absence of prior violence, although the spousal relationship
    was turbulent and frequently involved verbal abuse by both parties; and

·

to a limited degree, the appellants psychological and
    psychiatric difficulties.

[38]

He
    also identified aggravating factors, including:

·

the fact that the victim was the appellants spouse;

·

the vulnerability of the victim;

·

the use of multiple weapons (the two knives);

·

the appellants attempts to demean the character and memory of
    the deceased;

·

the impact of the killing on his children; and

·

the appellants lack of appreciation of the enormity of his
    actions.

[39]

The
    trial judges balancing of these factors attracts deference:
R. v. Nasogaluak
,
2010 SCC 6, [2010] 1 S.C.R. 206,
at paras. 44-46. The
    appellant has identified no error in principle; nor is the sentence clearly
    unreasonable, demonstrably unfit or outside the appropriate range: see
R.
    v. Oliver
(2005),
194 O.A.C. 284
(C.A.), at para.
    49. There is no basis on which to interfere with the trial judges exercise of
    discretion.

disposition

[40]

For
    these reasons, the conviction appeal is dismissed. While we grant leave to
    appeal the sentence, the sentence appeal is dismissed.

G.R. Strathy C.J.O.

D. Doherty J.A.

E.E. Gillese J.A.

Released: April 22, 2015


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Maslowski, 2015 ONCA 261

DATE: 20150417

DOCKET: C58768

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harry Maslowski

Appellant

Gregory Lafontaine, for the appellant

B.G. Puddington, for the respondent

Heard:  April 1, 2015

On appeal from the convictions entered by Justice B.
    MacDougall of the Superior Court of Justice, sitting without a jury, on April
    16, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The argument on appeal focused on a single point.  The appellant submits
    that in the absence of evidence as to where in the residence the drugs were
    found, the convictions were unreasonable.

[2]

With the exception of the marijuana, there was no direct evidence as to
    the location of the drugs in the house.  The trial judge found that the appellant
    was a resident in the house, that all of the drugs were found in the house, but
    that he could not say where in the house the various pills were found.

[3]

The evidence referable to the marijuana was sufficient to support the
    inference that the appellant was in possession of the marijuana. The quantity
    and related paraphernalia supported the finding of possession for the purpose
    of trafficking.

[4]

The appellant concedes that if the marijuana charge stands, the
    proceeds charge must stand.  Consequently, the appeal on counts 1 and 3 is
    dismissed.  There is no appeal from sentence.

[5]

We do, however, agree that the convictions in relation to the pills
    cannot stand (counts 2, 5, 6).  Absent some evidence of where in the residence
    the pills were discovered, it was not reasonable to infer from the appellants
    residence in the house that he was in possession of those pills.

[6]

Nor, in our view, does the evidence of the other drug paraphernalia
    assist in drawing the inference of possession of the pills.  Counts 2, 5 and 6
    must be quashed and acquittals entered.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Olliffe, 2015 ONCA 242

DATE: 20150413

DOCKET: C57003

Hoy A.C.J.O., Epstein and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Olliffe

Appellant

Stephen Proudlove and Erika Chozik, for the appellant

Michael Perlin, for the respondent

Heard:  November 3, 2014

On appeal from the conviction entered on December 21,
    2012 by Justice David M. Stone of the Ontario Court of Justice, sitting without
    a jury.

Hourigan J.A.:

Introduction

[1]

The appellant was convicted following a judge-alone trial of four counts
    of armed robbery, four counts of having his face masked with intent to commit
    an indictable offence, and one count of carrying a concealed weapon for the
    purpose of committing an indictable offence.

[2]

The charges relate to four robberies of Tim Hortons restaurants in
    Oshawa in March and April 2012. The primary issue at trial was identity.

[3]

The appellant submits that the trial judge erred by accepting flawed
    identification evidence without exercising the required caution. Further, the
    appellant argues the verdicts are unreasonable as the evidence could not
    support conviction.

[4]

For the following reasons, I conclude the trial

judge erred in law in his consideration of the
    identification evidence and that the verdicts were unreasonable. I would allow the
    appeal, set aside the convictions and enter acquittals on all counts.

Facts

[5]

The first robbery occurred on March 11, 2012 at the Tim Hortons located
    at 338 King Street West in Oshawa. A man wearing sunglasses entered the store
    at approximately 3:40 a.m. After ordering a donut, the man demanded $100 and
    told the employee at the till, Adibah Sitara, that he had a knife. He extended
    a disposable Tim Hortons cup toward Ms. Sitara and she placed five or six
    $20 bills inside. He then asked for more money and Ms. Sitara added four or
    five $20 bills to the cup.

[6]

Ms. Sitara testified that the mans face was partially covered by a
    piece of cloth and that he had a blond coloured moustache. She described him as
    5′3″ to 5′5″ with a medium build and said he looked at
    least 30 years old. She stated that he was wearing a jean jacket.

[7]

The second robbery occurred on March 14, 2012. Melanie Walker, a
    midnight supervisor at the Tim Hortons located at 146 Bloor Street East in
    Oshawa, testified that at some point between 2:00 and 3:00 a.m. a man walked
    into the store, handed her a white travel mug and told her to put money in the
    mug. The man told her that he had a knife, although she did not see a knife.
    Ms. Walker put $60 or $80 in the mug.

[8]

Ms. Walker described the robber as wearing sunglasses and a black jacket
    with a black hoodie or sweater underneath. He was also wearing blue latex
    gloves. According to Ms. Walker, the man was not masked. She said that he was a
    white male in his late twenties. Ms. Walker noticed that he had brown hair and
    a brown moustache or a goatee. She described him as being 5′4″ or
    shorter. Because his clothes were bulky she could not determine his build. She
    did not notice any scars or marks on his face.

[9]

The third robbery took place on March 20, 2012 at the Tim Hortons located
    at 1251 Simcoe Street North in Oshawa. A man approached the front counter and
    demanded that the cashier, Tyler Ballinger, fill a plastic Tim Hortons mug with
    $20 bills. Mr. Ballinger had difficulty opening the till, so he called over his
    supervisor, Karen Deward. Ms. Deward opened the till and filed the cup with $20
    bills and one $50 bill.

[10]

According
    to Mr. Ballinger, the robber was wearing a black mask that went from the bridge
    of his nose across the top of his eyes and behind his head. He was also wearing
    black sunglasses with round lenses and a hoodie, with the hood pulled over his
    head. Mr. Ballinger testified that the robber was wearing loose-fitting blue
    vinyl gloves.

[11]

Mr.
    Ballinger noticed what appeared to be acne marks or scars on the mans face.
    Mr. Ballinger said that the robbers height was between 5′6″ and 5′7″.
    He estimated the perpetrators age to be between 40 and 50. Subsequent to the
    appellants arrest, Mr. Ballinger was asked by police to identify the robber
    from a photograph line-up. He was unable to do so. In fact, he replied No to
    photograph number five, which was a photograph of the appellant.

[12]

Ms.
    Deward testified that the robber was wearing a black coat or hoodie, a black bandana
    that covered the lower part of his face including his nose, black sunglasses
    and blue latex gloves. She could not observe any part of his face, other than a
    small portion of skin under his sunglasses. At trial she testified that she
    could not tell his age. She said that he was one to three inches taller than
    her height of 5′5″.

[13]

The
    fourth robbery occurred on April 13, 2012 between 4:00 and 4:15 a.m. at the
    same Tim Hortons as the first robbery. Ms. Sitara was once again working the
    midnight shift.

[14]

A
    man entered the store, placed a refillable cup before Ms. Sitara, asked for
    money and said that he had a knife. Ms. Sitara told him that she could not open
    the till and he replied that he knew that she could. Ms. Sitara ran to the
    back of the store and told the baker, Steven McSwain, what was happening. She
    said she did not want to go back out front. Mr. McSwain went to the front of
    the store, opened the till and gave the robber its contents.

[15]

Another
    employee, Michelle Lockyer, was in the back room with Mr. McSwain. She
    only saw the robber for approximately 10 to 15 seconds.

[16]

Outside
    the restaurant, Jordan Hill was sitting in a car with friends. He noticed a man
    pull a bandana over his face and enter the Tim Hortons. Mr. Hill took
    particular notice of the man as he left because he believed the restaurant was
    being robbed and that the man leaving the building was the robber.

[17]

The
    witnesses to the fourth robbery provided differing descriptions of the
    perpetrator. According to Ms. Sitara, the man wore dark sunglasses and his face
    was partially covered. She believed he was wearing socks on his hands and
    described him as being white. Ms. Sitara could not say for certain if he was
    the same person who committed the first robbery, but she believed that he was
    the same height and build. She could not see his facial hair or the hair on his
    head. The only thing she recalled about his clothing was that he was wearing a
    light coloured jacket.

[18]

Ms.
    Lockyer testified that the man wore dark sunglasses, a dark jacket, a hat that
    covered his hair and a fabric mask that covered his face below his nose. She described
    him as being a white male of average height and build, and specified that he was
    either taller or the same height as her, which is about 5′7″.

[19]

Mr.
    McSwain described the robber as being between 5′7″ and 5′10″
    with a medium or heavy-set build. He was white and had a big nose. According to
    Mr. McSwain, the robber wore a dark coloured jacket or vest and had light
    coloured socks on his hands. A light coloured rag or bandana covered his face
    from under his eyes to midway on his nose. He might have being wearing
    sunglasses and no facial hair was visible. Mr. McSwain did not notice any
    pockmarks or scarring.

[20]

Mr.
    Hill, who was 20 to 30 yards away when he first observed the robber, described
    the man as bulky and 6′0″ or taller. He was wearing a black hoodie,
    jeans, white gloves and a black bandana around his neck. Mr. Hill described the
    robber as white with a beard or goatee, side burns and a moustache. As the man
    left the store, Mr. Hill could see the back of his head. Mr. Hill was 99
    percent sure that the man had short hair. He also noted that the man was
    wearing black sunglasses, which he believed were Oakley brand.

[21]

After
    the robberies, a black and white wanted poster was produced by the police. The
    poster included five photographs taken from surveillance footage of the
    robberies. Photographs one and three, located on the top row of the poster,
    came from the second robbery. Photograph two came from the first robbery and
    photographs four and five, located on the bottom row of the poster, came from
    the third robbery.

[22]

Susan
    Hiscock, an employee of Tim Hortons and a former romantic partner of the
    appellant, saw the poster in her workplace lunchroom. Ms. Hiscock and the
    appellant had lived together for several months over two separate periods of
    time. They broke up about three years before the robberies occurred. She had
    last seen the appellant in a store in March 2012, but they did not acknowledge
    each other.

[23]

Ms.
    Hiscock testified that, based on the sunglasses, the goatee, the way the man
    stood and the jacket, which she said was the kind her former boyfriend often
    wore, she immediately recognized the man in photograph one on the poster as the
    appellant.  She testified that the appellant always wore sunglasses, even at night.
    In photograph two she said that she recognized the appellants bandana. She
    also noticed the blue jean jacket, similar to one the appellant often wore. In
    photograph three she recognized the appellants stance because, due to a
    previous injury, one of his arms is curved. She also recognized his long and
    pointy shoes. Ms. Hiscock testified that the appellant always had with him
    taupe or beige rubber gloves of the type used in restaurants. She used
    photograph three to confirm her identification of the appellant in photograph
    one. At trial, Ms. Hiscock was presented with a colour version of the same
    black and white poster she had seen in the Tim Hortons lunchroom.

[24]

In
    cross-examination, Ms. Hiscock admitted that she did not actually recognize the
    clothing items in the photographs. Rather, she explained that these items were
    the kind of clothes that the appellant sometimes wore. She also admitted that
    there was nothing in photographs one and three that would allow her to draw any
    conclusions about the shape of the mans arm.

[25]

Ms.
    Hiscock stated in cross-examination that that there were no particular
    identifying features on the face in the photographs that would allow her to
    identify the appellant; she said she just knew his face. She admitted that her
    identification was tied to the fact that the robberies occurred in Oshawa:

Q. You know its in Oshawa. I mean
    if you saw these same pictures coming from a robbery in Calgary, you wouldnt
    look at them and go, Hey thats my ex boyfriend Sean Olliffe

A. Probably not, no.

[26]

Ms.
    Hiscock contacted Crime Stoppers. The appellant was arrested. The police
    conducted a search of the appellants residence pursuant to a warrant and
    seized, among other things, a pair of blue hospital gloves, a jean jacket,
    several pairs of dark shoes, a pair of Adidas running shoes and several pairs
    of sunglasses. Two black bandanas were found on him.

Decision of the Trial Judge

[27]

At
    trial, the appellant brought an application under s. 8 of the
Charter
to exclude the evidence seized in the search of his residence. The Crown
    brought a similar fact evidence application with respect to each of the
    robberies.

[28]

In
    considering the s. 8 application and whether the police had reasonable and
    probable grounds to obtain the search warrant, the trial judge assessed the
    identification evidence of Ms. Hiscock. He noted that a distinction should be
    drawn between cases of identification by strangers and cases of recognition.
    The trial judge found that given the previous romantic relationship between the
    appellant and Ms. Hiscock and the fact they had lived together for several
    months on two different occasions, this was a case of recognition.

[29]

The
    trial judge concluded that it was open to the justice who issued the warrant to
    find that a recognition had occurred. The trial judge dismissed the s. 8 application
    and granted the similar fact evidence application.

[30]

The
    trial judge found that the evidence from the eyewitnesses and the surveillance
    videos, as well as his own observations in court, were not sufficient to
    establish the identity of the robber:

First, the evidence of each and all of the victims of the four
    robberies and the videos of those robberies, together with my own observations
    of Mr. Olliffe in court, do not themselves prove that Mr. Olliffe was the
    robber in any of the robberies on a balance of probabilities, let alone beyond
    a reasonable doubt. None of those witnesses purported to identify him, and I
    certainly cannot.

[31]

The
    trial judge then went on to consider the identification evidence of Ms. Hiscock:

Ms. Hiscocks identification process involved the following:
    She had only seen Mr. Olliffe once in three years. Of course, we know that she
    had lived with him on two occasions before that. She had known him for some 12
    years. She did not have the benefit of seeing the robber or robbers in the
    flesh in 3-D, as in three dimensions. She saw two-dimensional photographs. They
    were black and white photographs, not natural colours such as we see in Exhibit
    6 as filed. Those photographs, while basically clear, were not of portrait
    quality or extremely sharp focus. A factor in Ms. Hiscocks mind would
    have been that all of the photos in the poster were of the same person.
    Photographs one and three were frontal photographs, while photograph two was in
    profile. However, according to her clear unshaken evidence, her recognition was
    immediate and firm, so that within seconds she was calling Crime Stoppers. She
    said she saw the goatee, shape of the face, stance, and the style and choice of
    clothing.

[32]

Ultimately,
    the trial judge concluded that Ms. Hiscocks identification evidence was
    reliable:

In the end Ms. Hiscocks evidence of recognition showed she was
    alive to the danger of making a mistake, and originally described her
    certainty, as I say, as a nine on a scale of ten. However, after full
    examination and cross-examination, her evidence was that the photographs were
    of Mr. Olliffe. When Mr. Olliffe was arrested and his residence searched
    clothing, bandanas, and sunglasses consistent with those worn by the robber on
    March 14 were located, as with March 11. This clothing was not really unusual
    and certainly not unique, but the findings show that Mr. Olliffe had access to
    clothing that would make him look like the robber. This evidence only supports
    and does not contradict Ms. Hiscock. By itself, of course, it would not be
    proof beyond a reasonable doubt, but it does supply some support. I recognize
    that no travel mugs were found in the search of Mr. Olliffes residence.

[33]

Based
    on this evidence, the trial judge concluded that Mr. Olliffe was the robber on
    March 11 and March 14, 2012, and convicted him of all counts related to those
    robberies. Relying on the similar fact evidence, the trial judge convicted the
    appellant of all remaining charges.

Positions of the Parties

[34]

The
    appellant submits that the trial judge erred in failing to properly caution
    himself on the inherent unreliability of identification evidence. In particular,
    he failed to caution himself about the fallacy of mistaking certainty for
    accuracy. Moreover, the trial judge failed to advert to and properly scrutinize
    the specific frailties disclosed by the evidence. The appellant further submits
    that the verdict was unreasonable.

[35]

The
    Crown takes the position that the trial judge exercised sufficient caution in
    considering Ms. Hiscocks evidence and carefully considered factors bearing on
    both her credibility and reliability. Further, the identification evidence suffers
    from none of the telltale frailties that would be cause for concern and fully
    supports the verdict.

Analysis

[36]

The
    inherent frailties in identification evidence are well known and have been the
    subject of considerable judicial comment and review in social science
    literature.

[37]

The
    focus of the concern is not the credibility of the witness providing the
    identification evidence; rather, it is the reliability of the evidence and the
    potential for it to be given undue weight. Identification evidence is often
    deceptively reliable because it comes from credible and convincing witnesses. Triers
    of fact place undue reliance on such testimony in comparison to other types of
    evidence. Our courts recognize that they must vigilantly guard against
    convicting based on honest and convincing, but mistaken, eyewitness
    identification:
R. v.

Quercia
(1990), 75 O.R. (2d) 463 (C.A.),
    at p. 465;
R. v. Goran
, 2008 ONCA 195, at para. 33.

[38]

Triers
    of fact are entitled to take into account whether the witness is acquainted
    with the accused when assessing the reliability of the identification evidence.
    Where a witness is known to the accused, the testimony identifying the accused
    is sometimes referred to as recognition evidence.

[39]

The
    level of familiarity between the accused and the witness may serve to enhance
    the reliability of the evidence. It must be remembered, however, that
    recognition evidence is merely a form of identification evidence. The same
    concerns apply and the same caution must be taken in considering its
    reliability as in dealing with any other identification evidence:
R. v.
    Spatola
, [1970] 3 O.R. 74 (C.A.), at p. 82;
R. v. Turnbull
, [1977]
    Q.B. 224 (Eng. C.A.), at pp. 228-229.

[40]

In
    the context of
jury trials, courts in this province
    have consistently ruled that
the jury must be warned of the frailties of
    eyewitness identification even in cases of recognition evidence:
R. v.
    Curran
, 2004 CanLII 10434 (Ont. C.A.), at para. 26;
R. v. Miller
(1998), 131 C.C.C. (3d) 141 (Ont. C.A.), at pp. 150-151;
R. v. Brown
(2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 42.

[41]

Here,
    the trial judge first found that the conflicting evidence of the eyewitnesses was
    incapable of identifying the appellant as the robber. He then focussed on the
    evidence of Ms. Hiscock, which he found to be powerful. The trial judge
    appeared to be impressed that Ms. Hiscock immediately called Crime
    Stoppers when she saw the poster and, despite cross-examination, maintained her
    position that photographs one through three were of the appellant.

[42]

However,
    what the trial judge failed to do is critically analyze the problematic aspects
    of Ms. Hiscocks evidence. In particular, he never considered significant
    admissions in her cross-examination. For example, nowhere in the trial judges
    reasons is there reference to Ms. Hiscocks admission that had she been told
    that the photographs were taken during robberies in Calgary, she would not have
    identified the man on the poster as the appellant. Similarly, the trial judge
    failed to consider Ms. Hiscocks admission that she was unable to identify
    anything distinctive in the face in the photographs that would allow her to
    identify the appellant. Nor was there reference to her admission that she had
    not identified any particular piece of clothing in the photographs as belonging
    to the appellant but simply believed that the clothing was similar to what the
    appellant often wore. Finally, on cross-examination Ms. Hiscock acknowledged
    that the photographs did not permit her to see whether the robber had the same
    distinctive curve in his arm that the appellant does.

[43]

These
    were critical admissions that struck at the heart of the reliability of Ms.
    Hiscocks evidence. The trial judge was required to approach Ms. Hiscocks testimony
    with caution and grapple with the problems in her evidence to determine whether
    it was reliable. Nowhere in his reasons does the trial judge recognize these
    requirements. Instead, he fell into the trap of accepting Ms. Hiscocks evidence
    as powerful based on her certainty and speed of recognition. Of course, it is
    often the very certainty with which impressive and credible witnesses give
    their eyewitness testimony that causes
triers of fact to
    mistake confidence for accuracy:
Goran
, at para. 27.

[44]

The
    trial judge compounded his error by accepting Ms. Hiscocks evidence virtually
    in isolation. While he relied on the clothing and other evidence seized from
    the appellant as offering some support for Ms. Hiscocks testimony, he
    failed to assess her evidence against the potentially exculpatory eyewitness evidence
    adduced at trial.

[45]

For
    example, the evidence that Mr. Ballinger did not identify the appellant as the
    robber in the police photograph line-up was significant but was not considered
    by the trial judge. Mr. Ballinger explained that he based his assessment of the
    line-up photographs solely on face shape because the robbers facial features
    had been largely hidden by a mask. Similarly, descriptions of the robbers
    physical appearance and age by Ms. Walker, Ms. Sitara, Mr. McSwain and Mr.
    Hill that were clearly inconsistent with the appellants physical appearance
    and age also should have been considered. For example, Ms. Walker testified
    that the robber was in his late twenties and that she was fairly certain he
    was not in his late forties, like the appellant. Further, in cross-examination Mr.
    Hill was asked to look at the appellants hair and determine whether it matched
    the hair on the back of the robbers head. Mr. Hill told the court he was
    certain the appellants hair did not match that of the robber.

[46]

It
    was an error for the trial judge to simply dismiss the evidence of these
    witnesses as neutral and thereby exclude it from both his analysis of the
    reliability of Ms. Hiscocks evidence and, more generally, the determination of
    whether the Crown had proven identification beyond a reasonable doubt. While
    the trial judge acknowledged that this witness evidence alone was insufficient
    to convict the appellant, he failed to assess Ms. Hiscocks evidence in light
    of this potentially exculpatory evidence. The trial judge appears to have erroneously
    proceeded on the basis that because Ms. Hiscocks evidence amounted to
    recognition evidence, he did not need to approach it with the same degree of
    caution.

[47]

In
    my view, the trial judge erred in law in his consideration of the identification
    evidence. These errors went to the critical issue for determination at trial
    and justify appellate intervention.

[48]

Turning
    to the alternative ground of appeal, to succeed on an unreasonable verdict claim,
    the appellant is required to establish that, on the record before the trial
    judge, no properly instructed trier of fact acting judicially could reasonably
    have convicted the appellant:
R. v. Tat
(1997), 35 O.R. (3d) 641
    (C.A.), at p. 673;
R. v. F.A
.
(2004), 183 C.C.C. (3d) 518 (Ont.
    C.A.), at para. 35;
Goran
, at para. 21.

[49]

The
    issue is not whether the appellate court would have convicted the appellant,
    but whether the evidence, viewed through the lens of judicial experience, was
    reasonably capable of supporting a finding of guilt:
R. v. W.H
.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 26-28.

[50]

In
    my view, the appellant has met his onus on this ground of appeal as well. The
    eyewitness evidence did not support a finding of guilt. As noted above, some of
    the eyewitness evidence, which was effectively ignored by the trial judge, was
    exculpatory. The evidence of Ms. Hiscock was highly problematic and unreliable
    for the reasons set out earlier in this judgment. The evidence obtained from
    the search of the appellant and his residence was only marginally supportive of
    Ms. Hiscocks evidence, as none of the seized clothing was positively
    identified as having been worn by the robber during the robberies.

[51]

In
    my view, this evidentiary record, considered through the lens of judicial
    experience, including the well-established frailties of identification
    evidence, was not reasonably capable of supporting a finding of guilt. In
    effect, the trial judge chose to place near total reliance on the problematic evidence
    of Ms. Hiscock and ignored the exculpatory evidence.

Disposition

[52]

The
    appellant has served his sentence. Based on the evidentiary record at trial,
    the convictions were unreasonable. There is no reason to believe that the evidentiary
    record at a new trial would be materially different. In these circumstances, I
    would order that the convictions be set aside and that acquittals be entered on
    all counts.

Released:  April 13, 2015 AH

C.W.
    Hourigan J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pelley, 2015 ONCA 267

DATE: 20150416

DOCKET: C59403

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Curtis Pelley

Appellant

Krystal Manitius, for the appellant

J. Sandy Tse, for the respondent

Heard and released orally: April 7, 2015

On appeal from the sentence imposed on October 21, 2013 by
    Justice John R. McIsaac of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal a total sentence of three years
    imprisonment imposed in relation to two counts of assault, two counts of
    mischief and two counts of breach of probation that were committed as part of
    one set of circumstances.

[2]

We agree that the appellants lengthy criminal record, the domestic
    context of these offences and the fact that the appellant was on probation for
    offences in relation to his domestic partner, who was one of the complainants,
    are factors that required a stiff sentence. However, the sentence proposed by
    defence counsel at trial, two years plus one day imprisonment, was a stiff
    sentence.

[3]

In our view, the sentencing judge erred by failing to refer to the
    mitigating factors that were present and factor them into the sentence he
    imposed.  In particular, the appellant pleaded guilty; he was taking steps towards
    rehabilitation while incarcerated; and he expressed some insight into his
    problems in his comments to the court.

[4]

In the circumstances, the sentencing judges failure to refer to these mitigating
    factors and his failure to articulate why a three year sentence was justified
    in the face of them was an error in principle.

[5]

Leave to appeal sentence is granted, the sentence of imprisonment imposed
    is set aside and a two year sentence of imprisonment is substituted.  All other
    terms and conditions of the original sentence remain the same, including the
    term that the sentences be served consecutive to any other sentence already
    being served.  We allocate the substituted sentence of imprisonment to specific
    offences as follows:

i)     the assault on Ms. Byford: one year imprisonment;

ii)    the
    assault on Mr. Santaw: six months imprisonment consecutive;

iii)    the
    two mischief counts: six months imprisonment on each count concurrent to each
    other and concurrent to the other sentences; and

iv)   the two breach
    of probation counts: six months imprisonment on each count, concurrent to each
    other but consecutive to the other counts.

Janet Simmons J.A.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.