COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Brooks, 2012 ONCA 703

DATE: 20121019

DOCKET: C54962

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Leonard Brooks

Appellant

Jonathan Rudin and Amanda Driscoll, for the appellant

Holly Loubert, for the respondent

Heard:  September 19, 2012

On appeal from the sentence imposed on March 22, 2011 by
    Justice Stephen J. Hunter of the Ontario Court of Justice.

Doherty J.A.:

[1]

The appellant pled guilty to and was convicted of manslaughter.  He
    received a seven-year sentence less one year credit for time served prior to
    sentencing.  He appeals from that sentence.

[2]

On June 27, 2010, the appellant, the victim Jessie Archer, and two other
    young men were enjoying a social afternoon and evening together.  Mr. Archer
    and the appellant were both in the music business.  It is unclear how well they
    knew each other, but there was no animosity between them.

[3]

All four men were consuming alcohol during the day and having a good
    time.  Sometime during the evening, the appellant came into possession of a loaded
    .25 calibre semi-automatic pistol.  Mr. Archer did not know that the appellant
    had the weapon.  The pistol is a prohibited firearm under s. 84 of the
Criminal
    Code
.

[4]

The appellant, Mr. Archer and their two friends visited two bars that
    evening.  They left the second bar at closing time.  Mr. Archer and one of the
    other men went straight to the vehicle.  The appellant and the other man stood
    outside on the street talking to the dancers.  The appellant, apparently
    showing off for the dancers, fired the pistol into the air.  Mr. Archer was
    not present when this happened.

[5]

The appellant and the other man who had been talking to the dancers then
    joined Mr. Archer and the fourth man in the vehicle and drove away from the bar.
    The appellant was sitting in the backseat on the passenger side.  Mr. Archer
    was sitting in the passenger seat on the front side.  The appellant had the loaded
    gun in his hand.  He accidentally pulled the trigger.  The gun, which was only
    a few inches from the headrest, discharged and the bullet passed through the
    headrest striking Mr. Archer in the throat and entering his head.

[6]

The driver of the vehicle drove directly to the hospital.  On the way to
    the hospital, the appellant threw the gun out of the car window.  Mr. Archer
    was pronounced dead at the hospital.

[7]

The police found the gun in a grassy area near the road four days later.
    There was a bullet in the chamber and a second bullet in the magazine.

[8]

Although the appellant has acknowledged from the outset that he fired
    the fatal bullet, he has not been entirely forthright with the authorities.
    Initially, he lied to the police about the circumstances surrounding his
    acquisition of the gun and how he came to discharge the gun in the car.  Even
    after the appellant subsequently acknowledged the details surrounding the
    discharge of the gun, he would not tell the police how he got it.

[9]

The trial judge faced a very difficult sentencing problem.  The offence,
    manslaughter using a firearm, carries a minimum sentence of four years in the
    penitentiary.  Mr. Archer was a fine young man with a bright future who was
    well loved by his family and friends.  The appellant, despite a very
    disadvantaged young childhood and problems with alcohol in his teens and early
    adulthood, has become a productive member of the community and a loving
    father.  The trial judge gave careful and thoughtful reasons.  The sentence he
    imposed is entitled to deference.

[10]

Counsel
    for the appellant submits that the trial judge ignored the appellants Aboriginal
    heritage and consequently failed to have particular attention to the
    circumstances of Aboriginal offenders as required by s. 718.2(e) of the
Criminal
    Code
.  I cannot agree with this submission.  Although the trial judge did
    not review the relevant information in any detail in his reasons, those reasons
    demonstrate that he appreciated that he had to consider the appellants Aboriginal
    background in affixing the appropriate sentence.  His ultimate determination
    that it did not affect the quantum of sentence in this case reveals no error.

[11]

It
    must be stressed that the appellant faced a significant mandatory minimum jail sentence.
    This was not a situation in which the trial judge had a variety of sentencing
    options available to him.  The appellant had to go to the penitentiary for at
    least four years.  No doubt, s. 718.2(e) applies in all cases, including those
    where there is a mandatory minimum jail term.  However, the existence of a
    minimum, particularly one that requires a four-year penitentiary sentence, must,
    of necessity, limit the practical impact of s. 718.2(e) just as it limits the
    impact of other potentially mitigating factors particular to the individual
    offender.

[12]

The
    trial judge also considered the serious nature of the offence, the limited
    connection the appellant had to his Aboriginal heritage, and the absence of any
    connection between the offence and the Aboriginal community.  He considered
    these factors not to exclude any consideration of s. 718.2(e), but rather to
    determine what effect that section would have in the specific circumstances of
    this case.  As pointed out in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1
    S.C.R. 433, at paras. 68-73, sentencing of all offenders, including Aboriginal
    offenders, is an individualized process.  Section 718.2(e) must be addressed in
    all cases involving Aboriginal offenders.  That is not to say, however, that
    the circumstances relevant to s. 718.2(e) do not have to have some connection
    to the offence and/or the offender before they will impact on the sentence.  As
    explained in
Ipeelee
, at para. 83:

Systemic and background factors do not operate as an excuse or
    justification for the criminal conduct.  Rather, they provide the necessary
    context to enable a judge to determine an appropriate sentence.  This is not to
    say that those factors need not be tied in some way to the particular offender
    and offence.  Unless the unique circumstances of the particular offender bear
    on his or her culpability for the offence or indicate which sentencing
    objectives can and should be actualized, they will not influence the ultimate
    sentence.

[13]

In
    my view, the trial judge did not err in holding that having regard to the
    circumstances of the offence and the offender as well as the statutory minimum
    of four years imprisonment, the appellants Aboriginal background would not
    influence the length of sentence imposed.  The more detailed Gladue report
    filed with the Crowns consent on appeal does not alter my assessment.

[14]

Counsel
    also submits that the trial judge erred in principle in his consideration of
    the relevant aggravating factors.  In my view, there is merit to this
    submission, although I frame it more as a failure to appreciate a very
    significant mitigating factor.

[15]

The
    trial judge was faced with two significant aggravating factors.  First, the
    appellant was on bail for some unspecified charge when he killed Mr. Archer.  The
    terms of his bail prohibited him from possessing any firearm.  Second, the
    homicide was part of a course of conduct during which the appellant displayed a
    repeated and blatant disregard for the safety of those around him.  Not only
    did the appellant have a prohibited loaded firearm in his possession, he was
    drinking at the time.  The extremely dangerous conduct that killed Mr. Archer
    was not an isolated event.  The appellant had engaged in equally dangerous
    conduct moments earlier outside of the bar.  The appellant further compounded
    the danger posed to the public when he threw the weapon, with a bullet in the
    chamber, out of the car window onto an embankment near a public thoroughfare.
    Anyone, including a child, might have picked the gun up in the four days before
    the police recovered it.

[16]

As
    the trial judge acknowledged, however, there were also significant mitigating
    factors to be considered.  In reviewing those factors, the trial judge referred
    to the unintentional nature of the offence, the appellants sincere remorse,
    his early guilty plea, and importantly, he is a first offender.

[17]

The
    mitigating factors identified by the trial judge were important.  However, the
    appellant has done much more than simply avoid the accumulation of a criminal
    record.  He began life in a very negative and abusive environment.
    Fortunately, he was taken from that environment by his loving grandparents when
    he was about five years old.  They provided a loving and supportive
    environment.  Unfortunately, his grandfather died when the appellant was seven
    years old and his grandmother then shouldered the responsibility for the
    appellants upbringing.

[18]

The
    appellant did relatively well until early adolescence.  By the time he was 18
    he had moved out of his grandmothers home, was abusing alcohol, and appeared
    headed in the wrong direction.

[19]

The
    appellant became involved in the music industry in his early twenties.  By all
    accounts, he is talented and has worked very hard to establish himself,
    especially in the last few years.  The appellant now earns a good living in the
    music business.

[20]

The
    appellants personal life is also very positive.  He has a long-term
    relationship with his girlfriend and together they have a young son.  The
    appellant is actively and positively involved in his sons life.

[21]

I
    do not disagree with the trial judges description of the appropriate range as
    four to eight years.  I also agree that this was not a case for the minimum
    sentence.  The aggravating factors, particularly the fact that the appellant
    was under a court order prohibiting the possession of any firearm, demanded a
    sentence greater than the four-year minimum.

[22]

In
    my view, however, the trial judge erred in failing to give significant
    mitigating value to the very positive steps that the appellant has taken in his
    young life.  Despite the appalling circumstances in which the appellant began
    his life, he has become a contributing member of the community and a loving and
    attentive partner and father.  Those are accomplishments for anyone.  They are
    particularly laudatory given the circumstances in which the appellant started
    his life.

[23]

The
    seriousness of the offence and the terrible consequences of the offence demanded
    a significant penitentiary sentence.  In my view, however, the trial judge
    should have, to the extent possible, fashioned a sentence that would minimize
    the risk that the imprisonment of the appellant would undo all of the positive things
    he had recently achieved and set him on a more antisocial course.  The
    community as a whole will be the loser if the appellant does not continue the
    positive development demonstrated by him in the last several years.  The grim
    reality is that the longer the appellant spends in the penitentiary, the
    greater the risk to his chances of becoming a contributing and respected member
    of his community.

[24]

Giving
    proper weight to the mitigating factors as described above, I think a sentence
    of five years properly balances the mitigating and aggravating factors present
    in this case.  Like the trial judge, I would give the appellant credit for one
    year based on his pre-sentence custody, leaving a sentence of four years.  I
    would grant leave to appeal and vary the sentence accordingly.

Doherty J.A.

I agree S.E. Pepall
    J.A.

Hoy
    J.A. (Dissenting):

[25]

I
    would not interfere with the sentence imposed by the trial judge.

[26]

I
    agree with my colleague that the trial judge did not err in holding that,
    having regard to the circumstances of the offence and the offender and the
    applicable statutory minimum, the appellants Aboriginal background would not
    influence the length of the sentence imposed.

[27]

The
    trial judge was alive to the challenges that the appellant had faced. He
    considered that the appellants early life was fraught with displacement and
    difficulty and that, prior to living with his grandparents, the appellant was
    exposed to an extremely abusive environment and may well be subject to
fetal
alcohol syndrome.

[28]

The
    appellants Aboriginal grandparents, who provided a stable and loving urban
    home for the appellants mother and their other children, and then for the
    appellant, were the most positive influence in the appellants life. The trial
    judge noted the role they played. The unique systemic and background factors
    adversely affecting Aboriginal people in Canadian society described in
Ipeelee
did not appear to have played a role in the abuse which the appellant
    suffered in his early years or in the appellants conduct.

[29]

Unlike
    my colleague, I would not disturb the sentence imposed by the trial judge on
    the basis that he accorded insufficient weight to the positive steps the
    appellant had taken in his life.  I come to this conclusion for three reasons.

[30]

First,
    the trial judge considered the positive steps that the appellant had taken in
    his life. He credited the appellant with establishing a relationship with his
    girlfriend and developing financial independence through his music, and remarked
    that it was noteworthy that, given the appellants history, he had not acquired
    a criminal record.

[31]

Second,
    as my colleague notes, the trial judge faced a very difficult sentencing
    problem. He imposed a sentence within the appropriate range after presiding
    over a highly emotional, two-day sentencing hearing. He had an opportunity to
    observe the appellant, who testified at the sentencing hearing. The trial judge
    is also closer to the community affected by this tragedy than this court.
    Having regard to the foregoing, the weight he accorded this factor should, in
    my view, be subject to considerable deference.

[32]

Third,
    without minimizing the appalling circumstances of a portion of the appellants
    early life and the positive steps taken by the appellant, from my review of the
    record I have a somewhat less rosy sense of the appellants life at the time of
    the offence than my colleague.

[33]

I
    differ from my colleague in one other respect. He would balance the mitigating
    factors against two significant aggravating factors: (1) the appellant was on
    bail for an unspecified charge at the time of the shooting and the terms of his
    bail prohibited him from possessing any firearm; and (2) the shooting was part
    of a course of conduct during which the appellant displayed a blatant disregard
    for the safety of those around him.  The trial judge adverted to what in my
    view is a third significant aggravating factor: the firearm was a prohibited
    weapon. Section 95 of the
Criminal Code
provides for a three year
    minimum sentence merely for possessing a loaded prohibited firearm. This case
    is very different than one involving an accident with a hunting rifle.

[34]

The
    appellant argues that the trial judge erred in treating the fact that the
    pistols registration numbers had been altered or defaced as a further
    aggravating factor, in the absence of evidence that the appellant was aware
    that the registration numbers had been defaced. Like my colleague, I agree
    that, on the record, it was not appropriate to do so; however, this factor was
    largely subsumed by the trial judges proper consideration that the firearm was
    a prohibited weapon and, therefore, in my view, does not warrant altering the
    sentence imposed by the trial judge.

[35]

I also think that a proper balancing of the significant aggravating
    factors and the mitigating factors in this case demands a sentence more than
    the one year above the statutory minimum for this offence that my colleague
    would impose.

[36]

I would dismiss the appeal.

RELEASED:  DD OCT 19 2012

Alexandra Hoy
    J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. C.D., 2012
    ONCA 696

DATE: 20121016

DOCKET: C52677

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

BETWEEN

Her Majesty the Queen

Respondent

and

C.D.

Appellant

Paul Calarco, for the appellant

Grace Choi, for the respondent

Heard: October 9, 2012

On appeal from the conviction entered on June 4, 2010 and
    the sentence imposed on September 20, 2010 by Justice Thomas M. Dunn of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant is now a quadriplegic. Following a very short trial by
    jury, he was convicted of five counts of sexual assault and sentenced to 30 months
    in the penitentiary.

[2]

The appellant appeals both his conviction and the sentence imposed.

[3]

For the reasons that follow, we dismiss the appeal against conviction, grant
    leave to appeal sentence, and allow the appeal against sentence.

Background

[4]

The complainant was twelve or thirteen years old at the time of the
    incidents. At the time of all but the first incident, the appellant rented a
    basement apartment in the complainants familys home. The instances of sexual
    touching escalated in severity and ranged from touching the complainants
    breasts, vagina and buttocks, to cunnilingus and anal penetration.

[5]

The complainant testified that she told her mother about the first
    incident soon after it occurred, but did not tell her about the subsequent
    incidents. Her mother did not take the first incident seriously and the
    complainant thought her mother would not believe her if she reported any other
    incidents.

[6]

After the incidents at issue, the appellant was rendered a quadriplegic
    as a result of a serious motor vehicle accident. He was a passenger in a car
    driven by the complainants mother. The appellant launched a civil suit against
    the mother for some six million dollars. The claim exceeds the mothers
    insurance coverage, and the familys home is at risk. The complainant made her
    allegations against the appellant eight days after his claim against her mother
    was served.

[7]

The complainant and her mother were the only witnesses at trial. The
    complainant was fifteen years of age at the time of trial.

Conviction appeal

[8]

The appellant advances the following grounds of appeal of his conviction:

1.       In his charge to the jury, the trial judge failed to:

(i)

relate the evidence to the issues in the case;

(ii)

instruct the jury on the assessment of the reliability of the witnesses;

(iii)

make clear to the
jury that the fact that the
    complainant was a young witness did not affect the standard for analyzing her
    evidence; and

(iv)

specifically warn the jury of the dangers of convicting upon evidence
    given by parties with an animus against the appellant and instruct the jury on
    what evidence was capable of being confirmatory;

2.       The trial
    judge erred in allowing the videos and transcripts of the complainants
    testimony to be sent to the jury room; and

3.       The verdict is unreasonable.

Errors in the charge

[9]

We are not persuaded that any of the four alleged deficiencies in the
    trial judges charge to the jury amounts to reversible error. While not
    determinative, we note that counsel for the appellant made no objection to the
    trial judges charge to the jury after the trial judge delivered it.

[10]

We
    reject the appellants first assertion, that the trial judge did not
    sufficiently relate the evidence to the issues in the case. As the trial judge
    noted, the real issue was whether the alleged incidents took place. In his
    closing argument to the jury, counsel for the appellant made the defences
    theory clear: the complainant and her mother were motivated to lie in an attempt
    to de-rail the civil lawsuit. The issue for the jury was not complex. The trial
    was brief. The evidence took less than a day and a half. It was fresh in the
    minds of the jurors.  In his closing argument to the jury, appellants counsel
    also reviewed what he argued were frailties in the complainants evidence that
    made her evidence not worthy of belief. While the trial judge might have
    related the evidence to the issues in a more detailed fashion, we are satisfied
    that in the circumstances, he sufficiently related the evidence to the issues
    before the jury.

[11]

The
    appellants second assertion is that the trial judge did not adequately
    instruct the jury on the assessment of the complainants reliability. We
    disagree.  While the credibility, and not the reliability, of the complainant
    was the main issue, the trial judge also directed the jury to consider the
    witnesses character, their intellectual ability, their level of maturity, to
    keep in mind [the complainants] ability to observe and remember what
    happened and to consider the apparent memory capacity of the witness.

[12]

We
    also disagree with the appellants third assertion, namely that the trial judge
    erred in his instructions regarding the standard for analyzing the evidence of
    a young witness. The complainant was 12 years old when she provided one of her
    videotaped statements to the police. The trial judge instructed the jury that:

Young witnesses do not always have the same ability as adults
    to recall precise details or to describe events fully and accurately. For this
    reason, you may choose to regard some inconsistencies in their testimony as
    less significant than they would be if you had noticed them in the testimony of
    an adult. The important thing is to consider whether deficiencies of this sort
    mean that the young witness has misconceived the events she has described. In
    other words, you have to use your good common sense.

[13]

The
    trial judge carefully charged the jury that the Crown must prove the appellants
    guilt beyond a reasonable doubt.

[14]

In
    his charge to the jury, the trial judge highlighted the complainants testimony
    that she did not like the appellant and wished that he would be sent to jail. He
    also reproduced the summary of the defences position provided to him by
    defence counsel, which included the defences position that the complainant had
    a motive to lie.  In the circumstances, this was sufficient.

[15]

There
    is, in our view, no merit to the appellants fourth argument, namely that the
    trial judge erred in failing to provide guidance to the jury on what, in law,
    can amount to corroborative or confirmatory evidence. The complainants
    evidence was that she told her mother about the first incident after it happened.
    In his charge, the trial judge explained:

our law does not require corroboration of any complaint of
    this nature. It is up to you, the jury, to decide whether or not the evidence
    is sufficient to prove beyond a reasonable doubt that the accused is guilty of
    an offence. It does not require anybody else to say yes.

In this case, the mothers evidence perhaps depending on how
    you look at it, might provide some.  She told us about the disclosure. The
    mothers evidence it was a little confused on this, at least I found, she at
    first did not remember when the disclosure was made to her, and then seemed to
    remember that it was made the same night as they went to the play; at least that
    is my memory of it

[16]

Appellants
    counsel concedes that confirmatory evidence is not required in cases of this
    nature.  The trial judge was not using corroboration in any technical sense.
    His review of the mothers evidence was accurate and favoured the defence
    position.  Use of the term corroboration should be avoided, but in this case
    it caused no prejudice to the appellant.

The video and transcripts

[17]

Nor
    do we agree that the trial judge erred in permitting the jury to view the
    videotape and transcripts of the complainants police interview inside the jury
    room during its deliberations. The trial judge has the discretion to permit the
    jury to do so. An appellate court will interfere with the trial judges
    exercise of discretion to allow the videotaped statement with them during deliberations
    only where the appellant can demonstrate that his right to a fair trial was
    compromised as a result:
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont.
    C.A.), para. 78. The appellant has not satisfied us that his right to a fair
    trial was compromised as a result of the trial judge permitting the jury to
    view the video and transcripts of the complainants statement to the police in
    the jury room.

Unreasonable Verdict

[18]

Finally,
    we are not persuaded that the verdict was unreasonable. The complainants
    evidence made out all of the elements of the offences with which the appellant
    was charged.  While there were frailties in that evidence, a properly
    instructed jury could convict on that evidence.

Sentence appeal

[19]

The
    appellant argues that the sentence imposed on him is harsh and excessive having
    regard to his physical infirmity.

[20]

The
    trial judge struggled to craft a fit sentence.

[21]

The
    appellant was 41 years of age at the time of sentencing. He was a first
    offender and had led an exemplary life. The trial judge noted that the
    appellant is in severe pain, has a colostomy, receives therapy four days a week
    and requires the daily assistance of a nurse to perform basic bodily functions.
    He needs a long list of some medications, including opiates, which must be
    taken several times daily.  He is at a high risk of developing complications. The
    trial judge concluded that a conditional sentence was not available, and, in
    the absence of information with respect to how the appellant might be treated
    while incarcerated, imposed a sentence of 30 months.

[22]

The
    circumstances of this case are extraordinary. On these totally unique facts,
    incarceration is not necessary to meet the objectives of sentencing and, having
    regard to the extent of the appellants physical infirmity, the sentence
    imposed is demonstrably unfit. Accordingly, leave to appeal sentence is granted
    and we allow the sentence appeal and reduce the sentence to two years less a
    day, to be served in the community as a conditional sentence, on the terms,
    including house arrest, proposed by the Crown.

Warren K. Winkler C.J.O.

M. Rosenberg J.A.

Alexandra Hoy J.A.

APPENDIX A

(Appendix may be obtained by contacting the Court of Appeal for Ontario Registry)


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Corey, 2012 ONCA
    725

DATE: 20121026

DOCKET: C54271

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gary Edward Corey

Applicant (Appellant)

Sherri Beattie, for the appellant

Scott Latimer, for the respondent

Heard and released orally: October 23, 2012

On appeal from the conviction entered on March 1, 2011
    and the sentence imposed on May 5, 2011 by Justice Mary Teresa E. Devlin of the
    Ontario Court of Justice, sitting without a jury.

APPEAL BOOK
    ENDORSEMENT

[1]

The appellant argues that the trial judge erred in finding irrelevant the
    fact that in 18 cases, other than the 16 for which he was charged, he did not
    act fraudulently. The appellant further argues that the trial judge erred in
    finding without evidence, that this is a common pattern in fraud cases. He did
    not pursue his sentence appeal.

[2]

We do not agree with either submission. The trial judges common
    practice comment is not something she relied on in reaching her conclusion.
    Moreover, it is simply common sense.

[3]

By saying the 18 cases were irrelevant, the trial judge was saying no
    more than that she was not prepared to find that the appellants intention in
    these 18 cases spoke to his intention in any of the 16 cases before the court.
    That was a conclusion entirely open on this record. There was ample other
    evidence of the appellants
mens rea
in the 16 cases and we see no
    error in the appellants conviction.

[4]

The appeal must be dismissed. The sentence appeal is abandoned.


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 purpose of
    subsection (1), the proper administration of justice includes ensuring that.

(a)       the interests of the witnesses under the age of
    eighteen years are safeguarded in all proceedings; and

(b)       justice system participants who are involved in the
    proceedings are protected.

(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, 171, 172, 172.1, 173, 212, 271, 272 or 273 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, reference to the
    circumstances of the case, the reason for not making an order.  R.S., c. C-34,
    s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25;
    R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s.
    9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29;
    2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s.
    15; 2005, c. 43, ss. 4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Desjardins-Paquette, 2012 ONCA 674

DATE: 20121005

DOCKET: C52063

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carl Desjardins-Paquette

Appellant

Anne-Marie McElroy, for the appellant

Catherine Mullaly, for the respondent

Heard: August 21, 2012

On appeal from the sentence imposed on April 8, 2010 by Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of one count of sexual assault, two counts
    of breach of recognizance and sentenced to 40 months imprisonment in addition
    to 16 months pre-trial custody. The sexual assault involved the brutal rape of
    a 19-year-old victim in her own home and consisted of both forced vaginal
    intercourse and attempted anal intercourse. One breach of recognizance arose
    from a different sexual assault complaint of which the appellant was ultimately
    acquitted.

[2]

The appellant, 24 years old at the time of the offence, had no criminal
    record and a history of serious mental illness. At the outset of trial he
    discharged his counsel and elected to defend himself. His pre-sentence report
    indicated that because of his mental illness, there was a significant risk that
    the appellant would either harm himself or others.

[3]

The trial judge carefully reviewed the mitigating and aggravating
    factors. Given the gravity of the assault and the risk the appellant poses to
    the community, the trial judge imposed a sentence of 40 months imprisonment in
    addition to the 16 months pre-trial custody

[4]

As it appeared to us at the oral hearing of this appeal that the
    appellants mental illness was a very significant factor, we asked counsel to
    obtain information from the correctional authorities as to any treatment or
    progress the appellant has made while in custody. We have now received and
    reviewed that information. Sadly, the appellant has not done well in prison. He
    has resisted treatment and appears to have made little if any progress towards
    rehabilitation and potential reintegration into the community.

[5]

An effective sentence of six years for a first offender suffering from a
    serious mental illness was clearly a significant one. However, given the
    brutality of the sexual assault and apparent risk the appellant poses to the
    community, we are not persuaded that the trial judge erred or that there is any
    ground for appellate intervention.

[6]

We recognize that this does not appear to be a case where either
    rehabilitation or community protection will be achieved by a lengthy period of
    incarceration without treatment. However, the institutional records indicate
    that the correctional authorities have tried to provide treatment but without
    success. In these circumstances, it is not within the power or capacity of this
    court to solve the problem this offender poses. That must be left to the
    correctional authorities.

[7]

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

K. Feldman J.A.

Robert J. Sharpe J.A.

E. Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Doroslovac, 2012 ONCA 680

DATE: 20121010

DOCKET: C53188

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Milenko Doroslovac

Respondent

Kevin Wilson, for the appellant

James Marentette, for the respondent

Heard:  April 4, 2012

On appeal from the verdicts of acquittal entered by Justice
    M. D. Parayeski of the Superior Court of Justice, sitting without a jury, on
    December 21, 2010.

Watt J.A.:

[1]

In May, 2008 Slavko Ilic and Milenko Doroslovac (the respondent) had
    cell phones. They talked to one another on their cell phones. And they sent
    text messages to one another on their cell phones.

[2]

In mid-May 2008, a judge of the Superior Court of Justice authorized
    police to intercept Slavko Ilics telephone calls as well as his other
    telecommunications.

[3]

From several text messages they intercepted later that same month,
    police concluded that Ilic and the respondent were about to meet in a commuter
    parking lot at Highways 6 and 401 to exchange drugs for money.

[4]

Undercover police officers watched the exchange between Ilic and the
    respondent, then followed the respondent to Toronto where they saw him turn
    over a white plastic bag to another man at a coffee shop. Arrests followed.
    The white plastic bag contained 3 kilograms of cocaine.

[5]

The judge who presided at the respondents trial on charges of
    trafficking and possession of cocaine for the purpose of trafficking excluded
    the intercepted text messages as evidence and acquitted the respondent. The
    Crown appeals.

[6]

These reasons explain why I think the trial judge was wrong to exclude
    the intercepted text messages as evidence and why I think the respondent should
    be tried again.

THE BACKGROUND FACTS

[7]

The grounds of appeal advanced can be adequately serviced by brief
    references to the terms of the authorization, the evidence adduced on the
voir
    dire
, and the ruling of the trial judge.

The Authorization

[8]

On May 13, 2008 a judge of the Superior Court of Justice granted an
Authorization
    to Intercept Communications, Make Visual Observations and Related Orders
(the
    authorization) on the application of a specially designated agent of the
    Minister of Public Safety and Emergency Preparedness, pursuant to s. 186(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. The authorization permitted the
    interception of private communications of named persons and the use of other
    investigative procedures including tracking devices, number recorders and video
    surveillance.

[9]

The authorization permitted the interception of all private oral and
    telecommunications of Slavko Ilic
[1]
in paragraph 2, and delineated various specific places where the interceptions
    could occur including his residence, place of business and listed vehicles, in
    paragraph 4. In addition, interceptions could be made at any other place,
    stationary or mobile that there are reasonable grounds to believe is being, or
    will be, resorted to or used by Ilic.

[10]

The
    order authorized the interception of Ilics
[2]
communications when made over listed mobile telephones and additional devices
    as described in paragraph 5 under the heading Devices Used by Persons. The
    Other Terms and Conditions of the authorization set out requirements for live
    monitoring under 6c, but excluded non-oral telecommunications from those
    requirements under 6e. The paragraphs 5c, 6c, and 6e, are of significance to
    the issues raised on appeal and their precise terms are set out in The Grounds
    of Appeal section of this judgment.

The
Voir Dire

[11]

At
    trial, counsel for the respondent (who is also counsel on the appeal)
    challenged the admissibility of the intercepted text messages. To expedite
    matters, the trial judge and counsel agreed to combine the admissibility
    hearing and trial, and the respondent called the supervisor of the
    investigation, Corporal Rupert Wilson, to give evidence about the interceptions
    proposed for admission.

[12]

Cpl.
    Wilson gave evidence that investigators received information on May 21, 2008,
    from a confidential source of another police force, that Slavko Ilic was using
    a mobile telephone with the number (226) 220-6845. Two days later, surveillance
    officers saw Ilic and his son in a car. Ilic drove onto a parking lot by a
    movie theatre in Kitchener and began to clean out his car. He threw a plastic
    bag into an open garbage container, then sat on the steps outside the theatre
    apparently awaiting the arrival of others. His son stayed in the car. A few
    minutes later, Ilics ex-wife and daughter arrived.  All four entered the
    theatre.

[13]

Cpl.
    Wilson kept constant watch on the garbage container and the bag Ilic had
    dropped there. No one added or took out anything out of the container before
    officers seized the bag. Inside the bag, police found a piece of paper torn
    into several smaller pieces.  They re-assembled the pieces into a single page.
    On the paper were the telephone number (226) 220-6845 and instructions about
    operating the telephone and purchasing additional air time. Police began
    interception of communications on this telephone.

[14]

Cpl.
    Wilson explained that no one was assigned the responsibility of determining who
    had the telephone when text messages were sent to or from it.  He was unaware
    of how such monitoring could be accomplished. He did point out, however, that
    physical surveillance on many occasions confirmed meetings involving Ilic in
    accordance with the messages sent on the telephone.

[15]

Telephone
    calls involving the number (226) 220-6845 were live monitored to ensure that
    Ilic was a party to the call.

The Ruling of the Trial Judge

[16]

At
    the conclusion of argument on the
voir dire
, the trial judge ruled
    that the text messages had not been intercepted in accordance with the terms of
    the authorization. The judge was satisfied that investigators had reasonable
    grounds to believe that Ilic used telephone number (226) 220-6845. For text
    messages, the judge concluded, the order required certainty about Ilics actual
    use at the time of the interceptions. In the absence of any attempt to ensure
    Ilic was the author of the intercepted messages, the search was unreasonable
    and the messages inadmissible under s. 24(2) of the
Canadian
Charter of
    Rights and Freedoms
.

THE GROUNDS OF APPEAL

[17]

The
    Crown advances two grounds of appeal. The first is that the trial judge erred
    in law in his interpretation of the relevant terms of the authorization. As a
    consequence, the judge wrongly concluded that the interceptions of the text
    messages had not been made in accordance with the authorization and that the
    search was unreasonable under s. 8 of the
Charter
. The second is that
    the trial judge erred in excluding the intercepted text messages as evidence
    under s. 24(2) of the
Charter
, even if the interceptions offended
    s. 8.

Ground #1: The Interpretation of
    the Authorization

[18]

Earlier
    paragraphs have set out the background essential for a consideration and
    determination of this ground of appeal.  For ease of reference I will set out
    the precise terms of the authorization and conclusion of the trial judge before
    turning to the arguments raised, the principles that govern, and the
    application of those principles to the circumstances of this case.

The Authorization

[19]

The
    authorization permits interceptions in accordance with its several terms and
    conditions. Paragraph 3 describes the persons whose private communications may
    be intercepted. These persons include Slavko Ilic as the Principal Known
    Person, seven others as Other Known Persons, and a third category, Unknown
    Persons described as the following:

Any other person intercepted or observed at any of the places
    listed in paragraph 4 or intercepted over any device listed in paragraph 5.

[20]

In
    paragraph 5, the authorization lists and describes various devices and permits
    the interception of communications of anyone listed or described in paragraph
    3, thus both knowns and unknowns, when the communications are made over those
    devices.  The devices included are defined as follows:

5.       The communications of the persons in paragraph 3 may
    also be intercepted when made over:

c.       any other device used
    to make a telecommunication, including mobile telephones, pages, or devices,
    believed on reasonable grounds to be used by the person in paragraph
3a and
    while being used by one of the persons named in 3a or 3b
. [Added in
    handwriting by authorizing judge.]

[21]

Paragraph
    6 of the authorization, headed Other Terms and Conditions, contains terms that
    relate to interceptions at the Business Places listed and Other Places
    described in paragraph 4 of the order and to interception of non-oral
    telecommunications. Paragraphs 6c and 6e are in these terms:

c.       Interception at the Business Places and Other Places
    in paragraph 4 shall be live monitored and, where practicable, be accompanied
    by live visual surveillance and be discontinued once it has been determined
    that the person in paragraph 3a (Slavko Ilic) is not a party to it. However,
    interception may be resumed at reasonable intervals to determine whether Slavko
    Ilic has become a party to the communication.  If so, then the interception may
    continue.

e.       The interception of non-oral telecommunications,
    including pagers, faxes, electronic mail, modem, and internet communications,
    is not subject to the live visual surveillance, or live monitoring.

The Ruling of the Trial Judge

[22]

The
    trial judge concluded his ruling on the interception of the text messages in
    these terms:

I have taken into careful consideration the arguments of the
    Crown that the ease with which cell phones can be purchased and their telephone
    numbers switched makes living up to the term imposed by Her Honour potentially
    impractical. Nonetheless that is what she wrote. She no doubt had in mind the
    advances of technology when she did so as well as the case law as it has
    developed. I disagree with the Crowns assertion that this interpretation flies
    in the face of the balance of the authorization.

I find that the interceptions in question were not done in
    compliance with the authorization. As such there was a violation of the
Charter
    of Rights
and we shall now proceed to determine whether the evidence that
    flows from that breach ought to be excluded. Counsel?

The Arguments on Appeal

[23]

For
    the appellant Crown, Mr. Wilson says that the ruling of the trial judge amounts
    to a determination that, although the police had a general authority to
    intercept communications from Ilics phone, they could only intercept text
    communications from that phone if they were
certain
that Ilic was the
    person sending the message they were intercepting. This standard of certainty
    has the effect of eliminating the interception of text messages, despite other authorization
    terms that expressly permit it.

[24]

Mr.
    Wilson contends that the authorization must be read as a whole and in a way
    that gives a common sense meaning to all its terms. Paragraph 6e of the authorization
    refers to non-oral telecommunications and excludes from their interception any
    requirement of live monitoring or live visual surveillance that would generally
    apply under paragraph 6c. Removal of this less onerous requirement is
    inconsistent with the imposition of a standard that far exceeds the
    constitutional norm settled by
R. v. Thompson
, [1990] 2 S.C.R. 1111.

[25]

In
    Mr. Wilsons submission the reading of paragraph 5c that is most consistent
    with the authorization as a whole is that the interceptions may be made if the
    investigators reasonably believe that the cell phone is being used by Ilic in
    some general sense, and that at the time of the interception either Ilic or
    another person in paragraph 3b of the authorization is using the device.

[26]

For
    the respondent, Mr. Marentette says that the trial judge properly interpreted
    the requirements of paragraph 5c. The judges reading of the clause was
    grammatically correct, compatible with the balance of the authorization, and
    the only sensible interpretation that the restrictions imposed could reasonably
    support. The conditions were imposed under s. 186(4)(d) of the
Criminal
    Code
to prevent unjustified intrusions into the privacy interests of
    innocent persons.  Paragraph 5c makes no reference to reasonable belief,
    rather it imposes a more stringent standard as the authorizing judge was
    entitled to find.

[27]

Mr.
    Marentette contends that the trial record is barren of any evidence to support
    the claim that the trial judges interpretation of paragraph 5c rendered
    interceptions of text messages impossible despite their authorization under the
    order. And even if the trial judges interpretation had such an effect, the
    restriction was one that the authorizing judge was entitled to impose under
    s. 186(4)(d). Investigators could have sought specific authorization to
    permit these interceptions but chose not to do so.

The Governing Principles

[28]

In
    the end, this ground of appeal reduces to the interpretation of the terms of
    the enabling authorization. To be more specific, the issue is whether this authorization
    permitted interception of the text messages sent from or received by telephone
    number (226) 220-6845 absent evidence that their author or recipient was Ilic.
    To determine that issue, it is helpful to return to some basic principles.

[29]

To
    take first the obvious. The interception of private communications constitutes
    a search or seizure, thus is subject to the requirement of reasonableness
    imposed by s. 8 of the
Charter
:
R. v. Duarte
, [1990] 1 S.C.R.
    30.  A search or seizure is reasonable if it is authorized by a law that is
    itself reasonable and is carried out in a reasonable manner:
R. v. Collins
,
    [1987] 1 S.C.R. 265, at p. 278.

[30]

Second,
    to be carried out in a reasonable manner pursuant to a conventional
    authorization issued under s. 186(1) of the
Criminal Code
, the
    interception of private communications must be carried out
in accordance
    with
the terms of a valid authorization, as required by s. 184(2)(b).
[3]

[31]

Third,
    s. 186(4) of the
Criminal Code
prescribes the content and limitations
    of a conventional authorization. Among other things, the authorization must
    generally describe the place of interception, if a general description of that
    place can be given, and generally describe the manner of interception:
Criminal
    Code
, s .186(4)(c).

[32]

Fourth,
    the authorizing judge has a discretion, but not an obligation, to include terms
    and conditions in the authorization. This discretion, for which s. 186(4)(d)
    provides, becomes engaged if and to the extent that the authorizing judge
    considers that terms and conditions are advisable in the public interest.

[33]

Fifth,
    among the terms and conditions a judge may include in an authorization as
    advisable in the public interest are terms and conditions the purpose of which is
    to curtail the interception of the private communications in which designated
    targets do not participate, but rather are made by innocent third parties.
    These terms and conditions are often described as minimization clauses. Unlike §2518(5)
    of its American equivalent, Title III of the
Omnibus Crime Control and Safe
    Streets Act of 1968
, 18 U.S.C.A. §§2510-2520, Part VI of the
Criminal
    Code
and, in particular, s. 186(4), does not make minimization a mandatory
    term of every authorization:
[4]

R. v. Finlay
(1985), 52 O.R. (2d) 632 (C.A.), at pp. 658-660;
Thompson
,
    at pp. 1130-1132, and 1137-1138.

[34]

Minimization
    clauses may take different forms. Some are linked to the places at which the
    communications to be intercepted take place. Interception of communications
    originating from or received at pay telephones, for example, may require live
    visual surveillance and live monitoring to confine interceptions to specified
    individuals. Other minimization clauses have to do with the nature of the
    device used in the communications or the manner in which interceptions are to
    be carried out.

[35]

The
    power to impose minimization clauses is discretionary: however the failure to
    include such a term may result in an authorization that is unreasonable:
Thompson
,
    at pp. 1145-1146.

[36]

Sixth,
    some authorizations permit interception of private communications that emanate
    from or are directed to places to which targets resort, at which they
    attend, or that they use for communication purposes. The contents of the
    intercepted private communications tendered for admission cannot themselves
    establish that the target resorted to, attended at, or used the place or
    device for communication purposes. Extrinsic evidence is required and must be
    adequate to establish an investigative belief, based on reasonable and probable
    grounds, that the person will resort to, attend at, or use the location
    or device depending on the language of the authorization:
Thompson
, at
    pp. 1140-1141.

[37]

The
    nature of the communications to be intercepted may also be important in the
    inclusion and construction of minimization terms. Some minimization terms, such
    as those that require visual surveillance or live monitoring may be invoked
    prior to or contemporaneous with the interception process. Others may permit after-the-fact
    minimization, or require it for efficacy.

[38]

Section
    2518(5) of Title III, for example, allows minimization to be accomplished as
    soon as practicable after such interception where the intercepted
    communications are in a code or foreign language and an expert in that code or
    foreign language is not readily available during the interception period.

[39]

Under
    Title III, text messages fall within the definition of electronic
    communication in §2510(12). They are subject to the minimization requirement
    of §2518(5), but Title III does not prescribe how minimization is to be
    accomplished. United States courts and law enforcement agencies recognize that
    traditional minimization techniques, like live monitoring or contemporaneous
    live visual surveillance, will not work with many forms of electronic
    communications. Section 29 of the
United States Attorneys Criminal
    Resource Manual
, which guides US Attorneys on the requirements of a Title
    III affidavit, advises attorneys that the affidavit must contain a statement
    that monitoring agents will minimize all non-pertinent interceptions and
    address any specific minimization problems: U.S. Dept of Justice,
United
    States Attorneys Criminal Resource Manual
§ 29 (1998). For electronic
    communications, the communications are recorded, subjected to after-the-fact
    minimization, and their disclosure limited to communications by the subject or
    their confederates that are criminal in nature: see, for example,
United
    States v. Tutino
, 883 F. 2d 1125 (2d Cir. 1989)
cert denied
493
    U.S. 1081 (1990).

[40]

Authorizations
    granted under s. 186 of the
Criminal Code
permit investigators to do
    things, to intercept private communications, that would be a crime in the
    absence of the order. Among other things, an authorization defines the extent
    to which the privacy of various persons may be invaded, where the invasions may
    occur, and how the invasions may be carried out. An authorization is, in
    effect, an interception licence.

[41]

To
    determine whether an authorization permits certain interceptions to be made, or
    to determine after the fact whether the interceptions have been made in
    accordance with an authorization, requires an examination not only of the
    specific words, phrases and clauses in the order, but also the order as a
    whole.  Interpretations that yield absurd results, impose requirements that
    effectively neuter permissible interceptional activity, or ignore related terms
    in the order should be avoided.

The Principles Applied

[42]

For
    reasons that follow, I would give effect to this ground of appeal and order a
    new trial.

[43]

Paragraph
    2 of the authorization, entitled Types of Communications and Observations,
    permitted the interception of telecommunications. The term
    telecommunication appears in the exhaustive definition of private
    communication in s. 183 of the
Criminal Code
, but telecommunication
    is not itself defined in, or for the purposes of, Part VI.
[5]
The parties agree that the term telecommunications as used in the authorization
    includes text messages.

[44]

The
    interceptional authority paragraph 2 provides in connection with
    telecommunications is unrestricted.  It makes no reference to the persons whose
    telecommunications may be intercepted or where or how the interceptions are to
    be carried out. Thus, it becomes necessary to review the balance of the authorization
    to determine under what circumstances telecommunications may be intercepted.

[45]

Two
    paragraphs of the authorization deal specifically with the interception of
    telecommunications: paragraph 5c and paragraph 6e.

[46]

Paragraph
    5c appears under the heading Devices Used By Persons:

5.       The communications of the persons in paragraph 3 may
    also be intercepted when made over:

c.       any other device used to make a telecommunication,
    including mobile telephones, pages, or devices, believed on reasonable grounds
    to be used by the person in paragraph
3a and while being used by one of the
    persons named in 3a or 3b
. [Emphasis added.]

[47]

The
    introductory words in paragraph 5 refer to communications, a term that would
    include both oral and telecommunications. Paragraph 5c is more specific. It
    applies only to any other device used to make a telecommunication, including
    but not only several kinds of devices described in the rest of the paragraph.
    The reference to a telecommunication does not distinguish between oral
    communications, such as telephone calls, and non-oral telecommunications, such
    as text messages.

[48]

Paragraph
    6e appears under the heading Other Terms and Conditions:

6.       It is further ordered that:

e.       The interception of
non-oral telecommunications
,
    including pagers, faxes, electronic mail, modem, and internet communications,
    is not subject to the live visual surveillance, or live monitoring. [Emphasis
    added.]

[49]

Unlike
    paragraph 5c, which refers to a telecommunication, thus to both oral and
    non-oral telecommunications, paragraph 6e is more specific: it deals only with
    non-oral telecommunications. Paragraph 6e makes it clear that neither of the
    usual minimization techniques, live visual surveillance and live monitoring,
    are required for the interception of non-oral telecommunications.

[50]

The
    effect of the trial judges interpretation of paragraph 5c of the authorization
    is to require that monitors be
certain
that Slavko Ilic was using
    telephone (226) 220-6845 to send a text message before that message could be
    intercepted.  Several reasons persuade me that this interpretation is wrong.

[51]

First,
    the construction adopted by the trial judge achieves an unworkable result. The authorization
    permits interception of telecommunications, both oral and non-oral
    telecommunications. For oral telecommunications, like telephone calls,
    minimization can be achieved by live monitoring, live visual surveillance, or
    both. Text messages, however, do not contain a human voice.  There is no live
    to monitor. Neither is live visual surveillance a viable means of ensuring
    authorship of a particular text message. Practically speaking, the surveiller
    would need to be standing immediately next to the target, then somehow relay
    the targets activity to monitors.

[52]

Second,
    the interpretation of the trial judge is inconsistent with the terms of the authorization
    as a whole and the purpose underlying this investigative technique.

[53]

The
    authorizing judge, satisfied that the conditions precedent of s. 186(1) had
    been met, granted the authorization to intercept the private communications of
    Slavko Ilic. She authorized investigators in paragraph 2 of the order to intercept
    not only Ilics oral communications, but also his telecommunications.  In other
    words, what he said and what he wrote could be captured for its potential
    evidentiary value in connection with the investigation of various listed
    offences.  The judge set out the terms in accordance with which the
    interceptions could be made.

[54]

The
    authorizing judge was satisfied that Ilic might use mobile telephones, other
    than those specifically listed, to make a telecommunication. It is a
    reasonable inference that the authorizing judge knew that mobile telephones
    could be used not only to make telephone calls, but also to send text
    messages.  To ensure that these mobile telephones were used by Ilic, the judge
    imposed some conditions in paragraph 5c, but did not distinguish between oral
    and non-oral telecommunications in the applicability of these conditions.

[55]

In
    another part of the authorization, however, the authorizing judge made specific
    reference to non-oral telecommunications. She made it clear that they could be
    intercepted without either live monitoring or live visual surveillance. As a
    consequence, any interpretation of paragraph 5c had to accord with the specific
    language of paragraph 6e in connection with the interception of non-oral
    telecommunications such as text messages. The trial judges interpretation
    denies paragraph 6e any influence.

[56]

Third,
    the standard of evidence required by the trial judge as a precondition to
    interception of text messages at once exceeds the constitutional norm set by
Thompson
and imposes different standards for interceptions involving the same device
    depending on the medium chosen for conveyance of the message.  Such a
    distinction is unwarranted and unsupportable in principle.

[57]

In
    my respectful view, the trial judge erred in his construction of the enabling authorization
    in relation to the text messages tendered for admission.  The correct
    interpretation of paragraph 5c, consistent with the terms of the authorization
    as a whole, is that the interception of text messages was authorized if investigators
    reasonably believed that Ilic was using the cell phone as a means of
    communication and that, at the time of the interception, either Ilic or another
    person described in paragraph 3b of the authorization, was using the cell
    phone.

[58]

The
    error in construction of the authorization led the trial judge to conclude that
    the interceptions were not made in accordance with the authorization, thus
    offended s. 8 of the
Charter
and should be excluded under s. 24(2).

[59]

For
    the reasons I have given, I am satisfied that the interceptions of the text
    messages did not offend s. 8 of the
Charter
. In the circumstances, it
    is unnecessary for me to consider the correctness of the trial judges decision
    to exclude the intercepted text messages as evidence under s. 24(2) of the
Charter
.
    In the absence of a constitutional infringement, s. 24(2) is not engaged.

CONCLUSION

[60]

In
    the result, I would allow the appeal, set aside the acquittals and order a new
    trial on the indictment.

Released:
October 10, 2012 JL

David
    Watt J.A.

I
    agree Winkler C.J.O.

I
    agree John Laskin J.A.

[1]
Ilic is described as the Principal Known Person in the
    authorization.

[2]
As well as persons who fell within the Unknown Persons clause in
    paragraph 3c of the authorization.

[3]
This exempts the interceptions from criminal liability under that
    section.

[4]
Sections 186(2) and (3) require minimization clauses to protect
    solicitor-client communications against interception.

[5]
Section 326(2) of the
Criminal Code
defines telecommunication
    for the purposes of the offences created by ss. 326(1) and 327(1).  This
    statutory definition approximates the ordinary meaning and provides a
    serviceable benchmark for Part VI.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Findlater, 2012
    ONCA 685

DATE: 20121012

DOCKET: C53639

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

BETWEEN

Her Majesty the Queen

Respondent

and

Necho Findlater

Appellant

Mark Halfyard, for the appellant

Marcella Henschel, for the respondent

Heard: October 9, 2012

On appeal from the conviction entered on September 27,
    2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting
    with a jury.

ENDORSEMENT

[1]

The appellant appeals from his conviction for numerous weapons offences.
    The only ground of appeal is from the decision of MacDonnell J. dismissing his
    application for a stay of proceedings on the basis of unreasonable delay in
    violation of his rights under s. 11(b) of the
Canadian Charter of Rights
    and Freedoms
.  For the following reasons, the appeal is dismissed.

[2]

The appellant submits that the trial judge erred in his attribution of
    two periods of delay and in his treatment of prejudice. We begin with the
    attribution of delay. The appellant submits that the trial judge erred in
    characterizing the four months from the time of arrest until the date was set
    for a preliminary inquiry as intake or neutral. He submits that most of that
    delay was due to the Crowns failure to make timely disclosure, and in particular,
    to disclose the co-accuseds videotaped statement to the police.

[3]

In our view, the trial judge properly characterized this four months delay
    as intake or neutral. While not an overly complex case, some time was required
    to make disclosure. And, importantly, it is apparent that the delay in
    disclosure did not delay the proceedings. The transcript of proceedings and the
    correspondence show that the court and counsel would have been able to set a
    date for the preliminary inquiry without the disclosure actually being in the
    hands of the appellants counsel. There was then a short delay because the
    appellant did not attend personally and the court was unwilling to set a date
    for a preliminary inquiry until the appellant had elected his mode of trial. It
    was reasonable to attribute the entire four months to neutral intake.

[4]

The appellant also submits that the trial judge erred in attributing any
    of the delay to the defence after the case was not reached on the first trial
    date in February 2010. When the case had to be adjourned, counsel was offered
    the date of May 10, 2010. Defence counsel was not available because she already
    had a murder trial scheduled for that time. The next available date was
    September 14, 2010. The appellant accepted that date for trial. When the case
    was spoken to in February 2010, there was no suggestion that the appellant was
    prejudiced by the delay or that he was seeking an earlier trial date.

[5]

The trial judge attributed the entire delay from February to May 10,
    2010 to institutional delay. He then divided the four month delay from May 10
    to September 14th. He attributed two months to institutional delay and two
    months to the defence being unavailable to take advantage of the May trial
    date. Relying upon
R. v. Godin
, 2009 SCC 26, the appellant submits
    that the trial judge erred and that the entire period was institutional delay.

[6]

The trial judge attributed five of the seven month delay due to the
    adjournment as institutional delay. This was a reasonable allocation of delay.
    The trial judge took into account that defence counsel cannot be expected to be
    ready to accept any date offered and thus attributed most of the delay to lack
    of adequate institutional resources. But, he could also take into account that
    there was no suggestion that counsel wanted an earlier trial date or that the
    trial was being unreasonably delayed. It may be that these two months could
    more properly be considered to be neutral rather than defence delay, but that
    would not alter the s. 11(b) analysis.

[7]

As to prejudice, the principal submission by the appellant is that the
    trial judge erred in failing to consider that prejudice could be inferred from
    the 30 months delay from arrest to trial. The appellant filed an affidavit in
    attempt to demonstrate actual prejudice to his security and liberty interests.
    There was no suggestion that his fair trial interests were prejudiced. The
    appellant was cross-examined on the affidavit before the trial judge. The trial
    judge rejected the allegations of actual prejudice. He explained why he did so
    and the appellant does not suggest that those finding were unreasonable.

[8]

We do not agree that the trial judge did not take into account any
    prejudice that could be inferred from the delay. The trial judge expressly
    acknowledged the prejudice to the appellants liberty interests by the strict
    bail conditions. But, he also fairly noted that each time the appellant sought
    to loosen the bail conditions, Crown counsel consented and that on the last
    occasion, the appellant waited several months before entering into the new
    recognizance. The trial judge did not find that the appellant did not suffer
    any prejudice, only that he had a tendency to overstate the problems. It was
    not that the trial judge found no prejudice, only that he had not established
    the degree of prejudice claimed. As he said:

Where an accused does not suggest that a proposed trial date is
    going to cause unacceptable prejudice and accepts that date without comment,
    its reasonable to infer that
significant
prejudice will not occur. I
    draw that inference in all the circumstances here. [Emphasis added.]

[9]

The trial judge did not err in his
    approach to prejudice. His reasons demonstrate that he applied the principles
    laid down in decisions from the Supreme Court of Canada and this court correctly.
    Accordingly, the appeal is dismissed.

Winkler C.J.O.

M. Rosenberg
    J.A.

Alexandra Hoy
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Gouliaeff, 2012
    ONCA 690

DATE: 20121015

DOCKET: C53582

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Alexander Gouliaeff

Applicant/Appellant

Matthew Gourlay, for the appellant

David Finley, for the respondent

Heard and released orally: October 10, 2012

On appeal from the conviction entered on April 10, 2010 and
    the sentence imposed on April 30, 2010 by Justice Donald J. Gordon of the
    Superior Court of Justice, sitting with a jury.

BY THE COURT:

[1]

Following a trial by judge and jury, the appellant was convicted of four
    counts of careless storage of a firearm, contrary to s. 86(1) of the
Criminal
    Code
.  He was acquitted of one count of careless storage and six counts of
    unlawful possession of a firearm.  A sixth count of careless storage of a
    firearm was withdrawn by the Crown.  The appellant was sentenced to three
    months imprisonment, consecutive, on each of the four counts for which he was
    convicted, for a total of 12 months imprisonment.  In addition, a five-year
    weapons prohibition order was imposed under s. 110 of the
Code
.  The
    appellant appeals his convictions and sentences.

A.      Conviction Appeal

[2]

The appellant raises one ground of appeal in support of his conviction
    appeal.  He argues that the trial judge misdirected the jury on the requisite
    elements of the offence of careless storage of firearms under s. 86(1) of the
Code
by failing to instruct the jury that any breach by the appellant of the safe
    storage of firearms guidelines set out under the relevant firearms storage regulations
    was insufficient to make out an offence under s. 86(1).  The appellant says, as
    outlined in his factum, that this error had the effect of lowering the
    negligence threshold that the Crown was required to prove under s. 86(1),
    thereby wrongly transforming the offences at issue into strict liability
    offences.

[3]

We reject this argument.

[4]

The sole issue at trial with respect to the pertinent charges was
    whether the appellants conduct in storing the firearms in question amounted to
    a marked departure from the standard of care that a reasonably prudent person
    would exercise in the same circumstances.

[5]

In his charge, the trial judge explicitly told the jury to consider all
    of the circumstances and, on four separate occasions, instructed the jury on
    the applicable marked departure/reasonableness standard required for a finding
    of carelessness under s. 86(1) of the
Code
.  While the trial judge did
    review the relevant firearms storage regulations with the jury, he also
    reviewed additional evidence relevant to the appellants manner of storage of
    the firearms and cautioned the jury to consider both the regulations and the
    defence evidence.

[6]

Further, at the close of his charge, when reviewing the defence position
    at trial, the trial judge again referred to the correct legal standard required
    for conviction and, without qualification or criticism, repeated the defence
    assertion that [T]he regulations do not apply.  What is required is a marked
    divergence from the standard.

[7]

When the charge is read as a whole, we are satisfied that the trial
    judges instructions adequately conveyed to the jury that the provisions of the
    firearms storage regulations were but one piece of evidence that may be
    considered by the jury in determining whether the appellants storage of the
    firearms amounted to the requisite marked departure from the standard of care
    that a reasonably prudent person would exercise in the same circumstances.

[8]

We note that the trial judges jury charge followed shortly after the
    closing addresses of counsel.  In his address, defence counsel repeatedly
    emphasized that the appellant had not been charged with a breach of the
    firearms storage regulations but, rather, with careless storage of the
    firearms.  Counsels submissions clearly underscored for the jury that a breach
    or breaches of the firearms storage regulations, if proven, were not
    determinative of the careless storage charges.  We also note that defence
    counsel did not object to the jury charge on the ground now advanced on appeal.

[9]

Finally, in our view, any doubt that the jury may have been confused by
    the requisite standard of care to establish criminal culpability under s. 86(1)
    of the
Code
is belied by the jurys verdict of acquittal on one of the
    careless storage charges.  We agree with the Crowns submission that the jurys
    verdict on this count indicates that, notwithstanding the provisions of the
    regulations, the jury had a reasonable doubt as to whether the appellants
    storage of the relevant firearms amounted to a marked departure from the
    applicable standard of care.

[10]

For
    these reasons, the conviction appeal is dismissed.

B.      Sentence Appeal

[11]

The
    Crown concedes, and we agree, that the appellants sentence appeal must be
    allowed.

[12]

The
    trial judges reasons for sentence reveal that he considered the appellants
    rehabilitative potential.  The evidentiary record indicates that the appellant
    made some efforts to comply with the law regarding the proper storage of
    firearms and there appears to be little prospect of his reoffending.  However,
    the reasons suggest that the appellants rehabilitative prospects were treated
    as a neutral factor or non-issue  rather than as a mitigating factor  by
    the trial judge.  With respect, this was an error.  The appellants positive
    potential for rehabilitation should have worked to his benefit on sentencing.

[13]

Further,
    while the trial judges decision to impose consecutive, rather than concurrent,
    sentences is a matter that would normally attract deference from this court,
    the reasons afford no explanation for why consecutive sentences were justified
    for this offender and these offences (all on-going, simultaneous careless
    storage offences).  We agree with the Crown that this was a case for concurrent
    sentences.

[14]

The
    appellant was released on bail pending appeal after having served more than
    seven months of his custodial term.  Thus, his bail release occurred within a
    few weeks of the likely expiry  at eight months  of his reformatory sentence.

[15]

In
    these circumstances, we agree with the Crowns submission that the appellants
    jail sentence should be varied to time served and we so order.  In our view,
    given the nature of these firearms, the manner of their storage by the
    appellant, the appellants knowledge of the requirements for safe storage
    (based on the firearms courses that he had completed shortly before his arrest)
    and the appellants criminal antecedents, it cannot be said that the imposition
    of an absolute discharge at this stage is justified.

[16]

We
    also agree that the length of the appellants prohibition order should be
    reduced from five to two years.  The appellant received a significant sentence
    of imprisonment that he has now served almost in its entirety.  This factor,
    together with the evidence of the appellants living circumstances prior to his
    conviction (on a farm in a rural setting involving both hunting and predator
    protection) suggest that the protective purposes of the prohibition order can
    be adequately met by a term of two years.

C.      Disposition

[17]

Accordingly,
    for the reasons given, the conviction appeal is dismissed.  Leave to appeal
    sentence is granted and the sentence appeal is allowed by varying the
    appellants incarceration to time served and reducing the duration of his
    prohibition order from five to two years.

RELEASED:

OCT 15 2012                                   E.A.
    Cronk J.A.

EAC                                                Sarah
    Pepall J.A.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Harrison, 2012
    ONCA 667

DATE: 20121002

DOCKET: C54370

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Harrison

Appellant

Stephanie Heyens, for the appellant

Lisa Csele and Nick Devlin, for the respondent

Heard: October 1, 2012

On appeal from the conviction and the sentence imposed on
    May 10, 2011 by Justice Bruce Young of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits with respect to both conviction and entrapment
    that the trial judges findings were unreasonable, that he misapprehended
    material evidence and that his reasons were inadequate.

[2]

We disagree.

[3]

Following a conversation in which coded language commonly used in drug
    deals was used, the appellant met the undercover officer as agreed. No
    transaction was consummated but there was clearly evidence to support the trial
    judges finding that the appellant agreed to sell the officer heroin.

[4]

We do not accept the submission that the trial judges failure to
    explain why the appellants behaviour after he got into the car and the fact
    that the appellant was not in possession of drugs when arrested is fatal to the
    conviction. The trial judge explicitly found that the appellant was not
    credible and specifically rejected the appellants description of what happened
    at the relevant time.

[5]

Perhaps the trial judge could have said more but, given the nature of
    the issues posed, the reasons are adequate to explain to the appellant and to
    this court why he was convicted.

[6]

In our view, the decision of this court in
R. v. Imoro,
[2010]
    ONCA 122, affd [2010] 3 S.C.R. 62 is fatal to the appellants argument on entrapment.
    As in
Imoro
, there was an initial call that can properly be
    characterized as investigatory, followed by a face to face meeting where, on
    the finding of the trial judge, conduct amounting to trafficking occurred, namely,
    the appellant agreed to the complete drug deal discussed on the telephone.

[7]

Accordingly, the appeal is dismissed.


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. Husain, 2012
    ONCA 697

DATE: 20121016

DOCKET: C55595

Winkler C.J.O., Blair and Hoy J.J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raza Husain

Appellant

Catriona Verner, for the appellant

Matthew Asma, for the respondent

Heard: October 12, 2012

On appeal from the conviction entered and the sentence
    imposed on September 12, 2011 by Justice Susan G. Himel of the Superior Court
    of Justice, sitting without a jury.

By the Court:

Overview

[1]

The appellant pleaded guilty, with the assistance of counsel in a
    negotiated plea bargain, to five counts, including one count of sexual assault
    against an underage girl and one count of attempting to procure a second
    under-age girl to become a prostitute.  The girls were aspiring models; they
    believed that the appellant was a professional photographer.

[2]

Following a joint submission, the appellant was sentenced on the five
    counts to five years and two months in prison and made subject to an order
    under s. 161 of the
Criminal Code
prohibiting him from attending near
    certain places where persons under 16 years of age may be present, in accordance
    with the joint submission.

[3]

On this appeal, he challenges his conviction on the two specific counts
    described above.  He does not challenge the agreed statement of facts or seek
    to impugn the competence of his counsel at trial.  Rather, he argues that the
    agreed facts do not support the convictions.

[4]

At trial, the appellant indicated that he pled guilty to the count of
    sexual assault, and that he plead guilty to the count of attempting to procure
    the second complainant to become a prostitute if my actions constitute the
    elements of that offence.  Thereafter, the trial judge specifically inquired
    whether the appellant understood that a plea is an admission of the essential
    elements of the offence and understood the nature and consequences of pleading
    guilty.  He answered that he did.  On the basis of the agreed facts, and the
    agreement of counsel, the trial judge made findings of guilt on the two counts.

[5]

The appellant also seeks leave to appeal his sentence, arguing that the
    sentence imposed was beyond the appropriate range.  He also argues that there
    is no evidence to support a finding that the appellant poses a risk of
    approaching young girls in public places and the s. 161 order accordingly
    should not have been imposed.

Sexual Assault Count

[6]

We first address the count of sexual assault, to which the appellant
    plead guilty, without qualification.  The admitted facts are that the appellant
    had unprotected sexual intercourse with the first complainant periodically
    between July 2007 and early 2009.  From July 2007 until May 1, 2008 (the date
    the law changed to increase the age of consent to 16, from 14), the first
    complainant was 14 and 15 years old and therefore legally able to consent.
    From May 1, 2008, until August 4, 2008, the first complainant was 15 years old
    and therefore, under the legal age of consent, namely 16.  From August 5, 2008,
    until early 2009, she was 16 and legally able to, and did, consent.

[7]

The appellant argues that the admitted periodic intercourse over
    nearly 18 months does not support a finding that intercourse occurred during
    the period between May 1, 2008, and August 4, 2008.

[8]

At the time the appellant entered his plea, he was represented by
    counsel and, as noted above, he does not raise an ineffective assistance of
    counsel ground on appeal.  There is accordingly a presumption that his plea was
    valid.  The appellant has not rebutted that presumption.

[9]

Liability for the offence charged was dependant on the appellant having
    sexual contact with the first complainant between May 1 and August 4, 2008.  The
    appellants guilty plea to this count was informed and unequivocal.  It is
    clearly implicit from the plea that a sexual encounter occurred during this
    3-month period.  Based on the admitted facts and the appellants response to
    her specific inquiry, the trial judge was entitled to conclude that intercourse
    occurred during the relevant period and find the appellant guilty of this
    count.

Procuring Count

[10]

The
    appellant took photos of the second complainant, including at his house, and a pattern
    of socializing developed, with the appellant providing vodka and food.  Sometimes
    the appellants friends joined them.  The second complainant was then 13 years
    of age.  An acquaintance of the appellant began supplying her with Oxycontin
    pills.  Sometime thereafter, the appellant told the second complainant that he
    would pay her $100 to have sex with him.  Over a period of 10 months, the
    second complainant would periodically go to the appellants house to have unprotected
    sex in exchange for money.  The appellant told the second complainant that she
    was his special girl and he did not want her to date anyone else.  In spite
    of this, the appellant suggested to the second complainant at one point that if
    she wanted extra money, she could go and see his friends and they would pay her
    for sex.  Her answer was always no.

[11]

The
    relevant portion of s. 212(1)(d) of the
Criminal Code
provides that
    everyone who procures or attempts to procure a person to become a prostitute is
    guilty of an indictable offence.  The appellant argues: (1) that his offer of
    an opportunity to the second complainant to make money by having sex with his
    friends did not amount to an attempt to procure; and (2) that the section
    only targets those who were not already having sex for money to become
    prostitutes, and there was no basis on the agreed facts for the trial judge to
    find that the second complainant was not already a prostitute when she met the
    appellant.

[12]

Given
    the agreed statement of facts and the guilty plea, it was open to the trial
    judge to find that the appellants offer to pay the second complainant for sex
    (which was accepted) amounted to procuring or that his subsequent offer that
    his friends would pay her for sex amounted to an attempt to procure.  The
    appellants plea was an admission to all the elements of the offence
    including that the second complainant was not a prostitute.  Moreover, the
    agreed facts clearly depict the second complainant as being groomed for sex,
    which is inconsistent with her having been a prostitute at the time she met the
    appellant.  We note that earlier in the relationship, she refused to perform a
    lap dance for the appellant.  Having made an informed plea, the appellant seeks
    to take advantage of imprecision in the wording of the agreed facts.  He has
    not rebutted the presumption that his plea was valid.

Sentence

[13]

As
    this court stated in
R. v. Murray
, 2007 ONCA 799, at para. 7:  This
    court will not lightly interfere with a sentence imposed based [on] the
    acceptance of a joint submission.

[14]

The
    sentence imposed was within the appropriate range and we see no basis for
    interfering.

[15]

The
    s. 161 order was, in our view, a part of the joint submission and, indeed, was warranted.
    With the Crowns consent, we are persuaded that the clarification sought by the
    appellant  namely that the words and other locations should not be part of
    the order  is appropriate.  A new s. 161 order, with that change shall
    accordingly issue.

Disposition

[16]

In
    the result, the appeal against conviction is dismissed, leave to appeal
    sentence is granted, and the appeal against sentence is dismissed.

Released:
Oct 16, 2012                                          Warren
    K. Winkler C.J.O.

WKW                                                                 R.A.
    Blair J.A.

Alexandra
    Hoy J.A.