COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kenyon, 2019 ONCA 868

DATE: 20191105

DOCKET: C62695

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Kenyon

Appellant

Lance Beechener and Riaz Sayani, for the appellant

John Patton, for the respondent

Heard: October 30, 2019

On appeal from the conviction entered on April 15, 2014 and the sentence imposed on July 28, 2014 by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Paul Kenyon appeals his conviction of second-degree murder in the death
    of his girlfriend, Marion Deacon. Her body was discovered in her home after
    first responders extinguished a fire that had engulfed the home. Mr. Kenyon was
    in the home at the time of the fire. Suffering from smoke inhalation and other
    injuries, Mr. Kenyon ran to a neighbours house, purporting to seek help. Mr.
    Kenyon was charged with Ms. Deacons murder shortly after her body was
    discovered. The Crown theory was that Mr. Kenyon killed her in a dispute about
    his drug abuse and that he stole money from her to acquire drugs. These issues
    had been causing her to question their relationship.

[2]

Mr. Kenyon does not contest that Ms. Deacon was murdered, having been
    bludgeoned to death before the fire started. He contends that there is a
    reasonable doubt about his guilt.

[3]

During the trial, Mr. Kenyon testified that he witnessed one of his drug
    dealers kill Ms. Deacon. He said the drug dealer and an unknown man came to Ms.
    Deacons house and confronted him about owing them money, and then killed Ms.
    Deacon when she showed up at the home.

[4]

Mr. Kenyons account was hampered by prior statements he made to the
    neighbours and emergency response personnel, and by a statement he later gave
    to the police, while being interviewed in the hospital. In those statements, he
    described being alone with Ms. Deacon when he awoke to the fire. He escaped,
    but Ms. Deacon did not get out after attempting to rescue her dogs.

[5]

Mr. Kenyon argues that the trial judge erred in admitting the police
    statement because it was taken in oppressive circumstances as he lay in the
    hospital bed when he was sleep deprived, covered only in a hospital blanket,
    and suffering from his injuries. He urges that the trial judge misapplied the law
    by treating her oppression analysis as confined to the conduct of the police.
    We need not comment on whether it is correct to characterize oppression as an
    objective inquiry. Nor need we opine on the trial judges observation that the
    police did not cause some of the circumstances that Mr. Kenyon relies on as
    oppressive. The trial judge understood that oppression is part of the
    voluntariness inquiry and that voluntariness is to be determined by considering
    all the circumstances. She was aware of all the circumstances, including those
    relied upon by Mr. Kenyon to claim oppression, and properly considered them.
    She was left in no doubt about the voluntariness of the police statement. We
    therefore reject this ground of appeal.

[6]

Mr. Kenyon also argues that the trial judge erred in directing the jury
    that it was open to them to find his prior statements were lies told to conceal
    his guilt, and that she did not properly direct the jury on the care that must
    be taken in making that determination. We disagree. Mr. Kenyon admitted the
    statements were lies. There was also a foundation in the elaborate detail he
    spun when presenting Ms. Deacons death as accidental, which would enable the
    jury to make a finding that he lied to hide the truth about his responsibility
    for her death. The jury direction was approved by defence counsel during a
    pre-charge conference and was adequate.

[7]

Finally, Mr. Kenyon argues that the trial judge erred in her rulings
    relating to his third-party suspect evidence. We disagree. The drug dealer that
    Mr. Kenyon claimed killed Ms. Deacon testified as a Crown witness. The Crown
    called him to testify about efforts Mr. Kenyon had made to get drugs in the
    hours before the fire. The trial judges initial ruling, preventing Mr. Kenyon
    from cross-examining the man about his complicity, was correct. At the time
    that ruling was made, there was not an adequate foundation for the drug
    dealers complicity.

[8]

After making this ruling, the trial judge properly permitted Mr. Kenyon
    to present his third-party suspect defence through his own testimony about
    witnessing this man kill Ms. Deacon. Through Mr. Kenyons testimony, the
    requisite foundation would be laid, and so at that point, his third-party
    suspect defence could properly be presented. Along with the parties, the trial
    judge developed a protocol for calling further evidence on this issue after Mr.
    Kenyon testified. That protocol was followed without objection, and her
    direction to the jury was sufficient. We see no error in any of the trial
    judges rulings.

[9]

The conviction appeal is therefore dismissed. Mr. Kenyon's sentence appeal is also dismissed as abandoned.

M.L. Benotto J.A.

David Brown J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lahaie, 2019 ONCA 899

DATE: 20191114

DOCKET: C57695 and C57696

Watt, Huscroft and Jamal JJ.A.

Docket:
    C57695

BETWEEN

Her Majesty the Queen

Respondent

and

Sylvain Lahaie

Appellant

Docket:
    C57696

AND BETWEEN

Her Majesty the Queen

Respondent

and

Olga Lahaie

Appellant

Andrew Menchynski, for the appellant Sylvain Lahaie

Cristina Candea, for the appellant Olga Lahaie

Michael Perlin, for the respondent

Heard: August 22, 2019

On appeal from the convictions entered on May 6, 2013 and
    the sentences imposed on September 6, 2013 by Justice

Gordon D.

Lemon
    of the Superior Court of Justice, sitting with a jury.

Huscroft J.A.:

[1]

This is an unusual case.

[2]

What began with a lawful citizens arrest by homeowners defending their
    property ended with their conviction for unlawful confinement of the two young
    men whom they caught stealing from them.

[3]

The appellant homeowners, Sylvain and Olga Lahaie, caught the
    complainants, Paul Taylor and James Reid, while they were in the midst of stealing
    their property, made a citizens arrest, and bound them with zip ties. Instead
    of calling the police immediately, they called the complainants parents, who
    came to the appellants property some time later. The police were called only after
    the complainants parents arrived, by which time the complainants were no
    longer bound.

[4]

The complainants were charged with theft, but serious charges were also
    brought against the appellants. They were charged with pointing a firearm,
    extortion, and unlawful confinement. Sylvain Lahaie was also charged with
    assault. Following a jury trial in 2013, the appellants were found guilty of
    unlawful confinement but acquitted of all other charges. They received
    suspended sentences.

[5]

The appellants appeal from their conviction. Sylvain Lahaie informed the
    court that he abandoned his appeal from sentence.

[6]

The appellants argue that the trial judge erred in instructing the jury
    concerning the requirements of unlawful confinement. The appellants also contend
    that the jury should have been instructed that they could acquit based on
    self-defence and defence of their property.

[7]

I have concluded that a combination of errors in Crown counsels closing
    address, the trial judges failure to correct those errors, and errors in the
    trial judges instructions caused the jury to be charged inadequately on the
    key issue in this case  whether the complainants consented to their
    confinement. As a result, the appellants conviction cannot stand. There is no
    need to consider the alternative grounds of appeal, namely, self-defence and
    defence of property.

[8]

I would allow the appeal and order a new trial for the reasons that
    follow.

BACKGROUND

[9]

The complainants unlawfully entered the appellants secluded, rural property
    on several occasions prior to the events in question. On August 14, 2008, the
    complainants came to the appellants property intending to steal from them for
    the third night in a row.

[10]

The theft was brazen: the complainants simply drove their van onto the
    appellants property in the middle of the night and started helping themselves
    to a pile of stainless steel. They planned to sell the steel to a scrap metal
    dealer, as they had done on prior occasions.

[11]

The complainants were in the midst of loading their van when the
    appellants caught and confined them. The circumstances of the confinement, and
    what followed, were disputed at trial.

[12]

The complainants testified that the appellants confronted them with a
    firearm, held them hostage, assaulted them, and demanded money from them in
    exchange for not calling the police. The appellants testified that they had no
    firearms with them when they arrested the complainants, denied that they
    assaulted the complainants, and denied that any extortion occurred. According
    to the appellants, they did not call the police after arresting the
    complainants because the complainants pleaded with them not to do so, offering
    to pay compensation for their previous thefts. The appellants claimed that Sylvain
    Lahaie asked whether the complainants were proposing they be cut loose on a
    promise of repayment, and the complainants confirmed that was not what they
    were proposing. Reid suggested the van be left as collateral, Taylor eventually
    agreed, and the complainants asked that their parents be called.

[13]

The appellants called the complainants parents and released Taylor after
    his father arrived on the scene. Taylor left the appellants property with his
    father on the understanding that they were going to return with money for the
    appellants. Reids mother also attended the property and then left to go to the
    bank. Reid remained at the property. Taylor returned with his father and mother.
    His mother wanted to call the police. The appellants called the police and the
    complainants were arrested.

[14]

The Ontario Provincial Police discovered that the appellants were
    registered gun owners and obtained search warrants for their property. They
    seized a Glock handgun, arrested the appellants, and charged them with pointing
    a firearm, extortion, assault (against Sylvain Lahaie only), and unlawful
    confinement. The jury convicted the appellants of unlawful confinement, but acquitted
    them of all of the other charges.

The
Criminal Code

[15]

The events giving rise to the appellants conviction occurred in 2008.
    The relevant provisions of the
Criminal Code
, R.S.C. 1985, c. C-46, then
    in force, provided as follows:

279

Forcible confinement

(2) Every one who, without lawful authority,
    confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to
    imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction
    and liable to imprisonment for a term not exceeding eighteen months.

Arrest without warrant by any person

494 (1) Any one may arrest without warrant

(a) a person whom he finds committing an
    indictable offence; or

(b) a person who, on reasonable grounds, he
    believes

(i) has committed a
    criminal offence, and

(ii) is escaping from
    and freshly pursued by persons who have lawful authority to arrest that person.

Arrest by owner, etc., of property

(2) Any one who is

(a) the owner or a person in lawful possession of
    property, or

(b) a person authorized by the owner or by a
    person in lawful possession of property,

may arrest without warrant a person whom he finds
    committing a criminal offence on or in relation to that property.

Delivery to peace officer

(3) Any one other than a peace officer who arrests a
    person without warrant shall forthwith deliver the person to a peace officer.

DISCUSSION

[16]

It is not disputed that the appellants arrest of the complainants was
    lawful under s. 494(1) of the
Criminal Code
, at least initially. The
    Crown concedes as much. The appeal centres on the continuing legality of the
    complainants confinement.

[17]

At trial, Crown counsel argued that the appellants confinement of the
    complainants became unlawful when they failed to deliver them to the police
    forthwith, as required by s. 494(3). It was common ground that this meant as
    soon as reasonably possible. The Crowns theory was that the appellants chose
    not to call the police for a period of several hours and attempted to extort
    money from the complainants at gunpoint during this time.

[18]

The appellants argued that the complainants persuaded them to call their
    parents, rather than the police, and agreed to remain bound until their parents
    arrived. According to the appellants, the complainants consented to their
    continuing confinement and as a result were not confined unlawfully.

[19]

These arguments do not meet up. On the Crowns argument, a lawful
    confinement became unlawful as a result of the appellants failure to deliver
    the complainants to the police forthwith, while on the appellants argument, a
    lawful confinement never became unlawful because the complainants consented to
    it continuing.

[20]

The problem stems from a lack of clarity concerning the relevance of consent
    to the complainants continuing confinement. As I will explain, the trial judge
    erred by failing to instruct the jury that if they had a reasonable doubt as to
    whether the complainants consented to their continued confinement, the
    appellants could not be found guilty of unlawful confinement.

The offence of unlawful confinement

[21]

The parties disagree about the role played by the absence of consent in the
actus reus
of the offence of unlawful confinement.

[22]

The appellants submit that the absence of consent to confinement is one
    of three components of the
actus reus
of unlawful confinement, citing
R.
    v. Niedermier
, 2005 BCCA 15, 193 C.C.C. (3d) 199, at para. 48, leave to
    appeal refused, [2005] S.C.C.A. No. 103. The British Columbia Court of Appeal
    described the three components as follows: (1) a confinement, (2) the
    confinement is without lawful authority, and (3) a lack of consent by the
    complainant to the confinement. Proof of the first two elements is
    objective; the third, subjective.

[23]

The Crown says that only the first two are components of the
actus
    reus
, and that the lack of consent requirement is subsumed under either or
    both of those components, citing the decision of the Supreme Court in
R. v. Magoon
,
    2018 SCC 14, [2018] 1 S.C.R. 309, at para. 64.

[24]

In
Magoon
, at para. 64, the Supreme Court stated that [u]nder s.
    279(2) of the
Criminal Code
, the Crown must establish that (1) the
    accused confined the victim, and (2) the confinement was unlawful. At para.
    72, the court concluded:

There is no doubt that [the deceased child] was confined on
    Sunday. She was coercively restrained and directed
contrary
    to her wishes
. And the confinement was clearly unlawful. The acts of
    discipline were grossly disproportionate, cruel, degrading, deliberately
    harmful, and far exceeded any acceptable form of parenting. [Emphasis added.]

[25]

These passages suggest that the lack of consent is not a separate
    component of the
actus reus
, but is instead an aspect of the component
    of confinement. However, there is also authority suggesting that lack of
    consent is an aspect of the component of lawful authority: see
e.g.
David
    Watt,
Watts Manual of Criminal Instructions
, 2nd ed. (Toronto:
    Carswell, 2015), at p. 885.

[26]

The matter need not be resolved for purposes of this appeal. Whether it
    is subsumed within one or both of the components of confinement and unlawfulness,
    there is no doubt that a lack of consent is an element of the offence of
    unlawful confinement that the Crown must prove beyond a reasonable doubt:
R.
    v. Gough
, (1985) 18 C.C.C. (3d) 454 (Ont. C.A.), at p. 458. This appeal
    succeeds because the jury was not adequately informed of this requirement.

The positions of the parties at trial

The defence

[27]

The defence theory was that the appellants did not call the police
    immediately because the complainants begged them not to do so. In other words,
    following what began as their lawful confinement pursuant to the citizens
    arrest, the complainants consented to their continued confinement while the
    appellants arranged for their parents to come. On this theory of events, the
    continued lawfulness of the complainants confinement did not depend on whether
    the police were called forthwith. Counsel for Sylvain Lahaie made the following
    point to the jury:

[A]lthough they  Paul Taylor and James Reid didnt necessarily
    consent to being bound, they complied with the demand and when they gave the
    number to, for the parents to be called, it was because of the proposal that
    they were offering. So, in my submission, that evidence supports the
    proposition that, in fact, from the circumstances that they were in at the
    time, they consented to that delay.
They consented to a
    delay of their being bound
. And the reason why that is important is
    because, in my submission,
subject to His Honours
    instructions on the point, you dont have an intentional confining or an
    unlawful confining if the [persons] involved are consenting to it
. And,
    in my submission, if you believe the evidence presented by Sylvain and Olga, it
    does support, in my submission, the proposition that
that
    delay was actually consented to
. [Emphasis added.]

Discussions following the
    defence address

[28]

In pre-charge discussions with the trial judge following defence
    counsels address, Crown counsel focused on the requirement that the appellants
    deliver the complainants to the police forthwith following their arrest of the
    complainants, without consideration of the separate issue of consent:

The question isnt was it reasonable for the confinement to
    continue without calling the police, because the Section 494 [arrest without
    warrant power] imposes a duty. They must call the police. There is a duty on
    them there.
Because the question is, did they fulfill
    their duty or not
.  [T]he question is, did they call the police quote
    at the first reasonable opportunity, or did they call the police reasonably
    soon in the circumstances. [Emphasis added.]

[29]

Crown counsel deprecated the defences consent argument, asserting that
    there was no air of reality to it:

At the very end of his submissions, I think [counsel for Sylvain
    Lahaie] suggested that, he suggested the defence of consent. Which is the first
    time that I had heard of that. And in my respectful submission, Your Honour,
    there is simply no air of reality to the defence of consent. It ought not to be
    left with them. Well, its not in your charge, but its just not available, in
    my submission.

[30]

Crown counsels reference to the defence of consent appears to reflect
    a misunderstanding of the relevance of consent to the offence of unlawful
    confinement. Consent was not a defence that required an air of reality in
    order to be put to the jury. On the contrary, the absence of consent was an
    essential part of the offence the Crown was required to prove beyond a reasonable
    doubt in order to prove unlawful confinement in the circumstances of this case.

[31]

The trial judge stated to Crown counsel that it would be a lawful
    confinement because they [the appellants] agreed with Taylor and Reid that they
    would work out this deal. However, Crown counsel insisted that its still not
    a lawful confinement because they failed in their duty [to deliver to the
    police forthwith]. The following exchange then occurred:

THE COURT:        Because they didnt go fast enough.

[CROWN]:             Right.

THE COURT:        But if the jury find that they acted
    forthwith, then they have a defence whether this idea of consent is in the air
    or not. Because they would have made a finding of fact that would make any
    consent irrelevant.

[THE COURT]:      You can think about that overnight, because
    you are going to plug that somewhere in to your address, and well see whether
    I really have to do that. But I dont see it at present.

THE COURT:        And I think the word consent was used
    almost like Mr. Lahaie used the word duress. It might have legal connotations
    in a technical fashion, but it really wasnt meant that way. Right? Here really
    just saying it was an agreement.

[32]

Counsel for Sylvain Lahaie interjected:

[COUNSEL FOR SYLVAIN LAHAIE]:      Your Honour, in my
    submission, in those circumstances, the fact that they would have agreed to the
    delay in having Stephen Taylor [Paul Taylors father] attend, in my submission,
    that would be a basis to say that they were consenting to the position that
    they were in.

THE COURT:        But the consent would only really matter to
    an assault. And they are not charged with assault.

[COUNSEL FOR SYLVAIN LAHAIE]:      No. But, for example,
    intentional confinement is defined with the, without consent. And, in fact,
    unlawful confinement. Its not unlawful if the person agrees to it.

THE COURT:        Right. They would only have agreed to it if
    the jury  the jury could only find that they agreed to it if the jury accepted
    the Lahaie evidence.

[COUNSEL FOR SYLVAIN LAHAIE]:      Absolutely.

THE COURT:        And if they accept the Lahaie evidence the
    defences that are front and centre kick in long before an analysis of consent.
    If my pessimistic estimates work out, you can tell me more about that at the
    end of tomorrow afternoon, part way through the Crowns address, and I can deal
    with it in my charge tomorrow night before I give it on Wednesday.

[33]

These exchanges reveal considerable confusion about the nature of the
    offence and the relevance of consent to its proof.

[34]

Counsel for Olga Lahaie addressed the jury following these discussions,
    but did not discuss the defence of consent in relation to the offence of
    unlawful confinement. Instead, he took the position that, in all of the
    circumstances, the police were in fact called forthwith.

The Crown

[35]

Crown counsel advised the court and counsel that he would be showing a
    PowerPoint presentation as part of his address. Counsel and the trial judge
    reviewed the presentation slides together in the absence of the jury and, among
    other issues, discussed Crown counsels statements on the slides regarding the requirement
    to contact the police forthwith.

[36]

One of the proposed slides stated: WHY THEY DIDNT CALL FORTHWITH
    DOESNT MATTER. In discussing this slide, Crown counsel said:

[The appellants] motivation for not calling [the police] is
    utterly irrelevant. In fact, I am not going to say this, but it goes to
    sentence. It doesnt go to anything else. The question of whether or not they
    did meet [the requirement of] forthwith is alive. But the question of why they
    did it isnt.

[37]

The trial judge challenged the Crowns position, stating that if it is
    as the Lahaies say, because the deal was offered to them, then why is a big
    part of all the circumstances. Crown counsel and the trial judge then had the
    following exchange:

[CROWN]:   Its a big part of all the circumstances, but its
    incorporated into the concept of what forthwith means. It is part of forthwith.

THE COURT:        Right.

[CROWN]:   Its not, it doesnt exist independent.

THE COURT:        But why, if its part of forthwith, then it
    does matter why they didnt call forthwith.

[38]

The trial judge instructed the Crown to remove the statement WHY THEY
    DIDNT CALL FORTHWITH DOESNT MATTER from the slide, explaining that as it
    is, its wrong. In context it might be entirely correct.

[39]

Crown counsel then addressed the jury. His address focused on the appellants
    obligation to call the police forthwith, with only passing references to the
    non-consent of the complainants:

At the moment  that the Lahaies did not comply with the duty
    to deliver Taylor and Reid to the police forthwith, at that moment they turned
    away from the required, they turned away from the duty and they lost the
    protection of the law. From that moment onwards any continued detention against
    their will was a forcible confinement. So, from the point of arrest, citizens
    arrest made properly, onwards lawful authority, lawful authority, lawful
    authority, until the point of forthwith and anytime after the point of
    forthwith you lose lawful authority and if the other element to the offence is
    satisfied, which it is in this case, you are guilty of the offence of unlawful
    confinement. Forthwith is a requirement that speaks to time. Did they call the
    police soon enough? The question isnt were their actions reasonable from start
    to finish.

[40]

Crown counsel took the position that the appellants were guilty on their
    own evidence, stating, Even if you disagree completely with everything that I
    have to say about the facts, even on the defence version of the facts, I put it
    to you, that Sylvain and Olga Lahaie are guilty of the offence of forcible
    [sic] confinement.

[41]

Crown counsel later told the jury:

Importantly, why [the appellants] didnt deliver Taylor and Reid
    forthwith doesnt matter.  [For] [t]he purpose of unlawful confinement  if
    you find that they [the appellants] did not deliver them [the complainants]
    forthwith then theyre guilty of the offence.

The trial judges instructions

[42]

The trial judge addressed the relevance of consent in his instructions
    to the jury, but only summarily. His focus was on the appellants obligation to
    contact the police.

[43]

The trial judge addressed the requirement of physical restraint as
    follows:

To intentionally confine another person is to physically
    restrain that person
contrary to his wishes
thereby depriving that person of his liberty to move from one place to another.
     It seems to me and it seems from the submissions given to you that there is
    little doubt that Mr. Reid and Mr. Taylor were confined. [Emphasis added.]

[44]

The trial judge then addressed the requirement of lawful authority:

Lawful authority means just what it says. Authority granted by
    law. For example, a police officer has a lawful authority to restrain someone
    he or she has arrested. However, the lawful authority ends when the reason for
    the arrest ceases.
And any unnecessary further
    confinement is unlawful unless consented to by the complainant. If the
    restraint is or becomes unlawful then the restraint is without lawful authority
.
    Again it is agreed that the person may bind someone for the purposes of safety,
    and the initial binding of Mr. Taylor and Mr. Reid, as part of the arrest was
    lawful. The question is did [the appellants] call the police as soon as
    reasonably possible or practicable
having regard to all of the prevailing circumstances
?
    [Emphasis added.]

Errors in the instructions

[45]

As the trial judge noted, there was no doubt that the complainants were
    physically restrained  all parties accepted that they were tied with zip ties
    following their arrest. The question was whether the complainants consented to remaining
    confined, and this issue needed to be specifically addressed and explained by
    the trial judge.

[46]

Although the trial judge referred to this issue, read as a whole his
    instructions focused on the wrong issue. Even if the appellants failed to call
    the police forthwith  an issue that went to the continuing lawfulness of the
    complainants arrest  their confinement of the complainants was unlawful only
    if the complainants did not consent to it. Consent in no way depended on
    whether or when the appellants called the police. If the appellants evidence were
    accepted, or if it at least left the jury in a state of reasonable doubt as to
    whether the complainants consented, they were entitled to be acquitted, and any
    concern about their failure to call the police forthwith was irrelevant.

[47]

The trial judges instructions in this regard were inadequate. Although
    his brief mention of consent was accurate, he did not instruct the jury that it
    was for the Crown to prove a lack of consent beyond a reasonable doubt, nor did
    he review the evidence relevant to consent and relate it to this issue. Moreover,
    his instructions conflated the lawfulness of the complainants confinement with
    the lawfulness of their arrest, as the following passage indicates:

[A]ny unnecessary further confinement is
    unlawful unless consented to by the complainant. If the restraint is or becomes
    unlawful then the restraint is without lawful authority
. Again it is
    agreed that the person may bind someone for the purposes of safety, and the
    initial binding of Mr. Taylor and Mr. Reid, as part of the arrest was lawful.
The question is did Mr. and Mrs. Lahaie call the police as soon
    as reasonably possible or practicable having regard to all of the prevailing circumstances
?
    And again you will consider all of the evidence, along with my comments on
    citizens arrest. Here it comes again, but its important. Do you accept the
    [Lahaies] evidence that they had a lawful authority to confine Mr. Taylor and
    Mr. Reid? If not, does it raise a reasonable doubt? If not, does the rest of
    the evidence persuade you beyond a reasonable doubt that they did not have a
    lawful authority? [Emphasis added.]

[48]

In this passage, the trial judge correctly states that any unnecessary
    further confinement is unlawful unless consented to by the complainant, but he
    countermands this instruction later in the same passage by stating that the
    lawfulness of the further confinement depended on whether the appellants called
    the police as soon as reasonably possible in the circumstances.

[49]

Whether

the appellants failed to call the police forthwith and
    whether the jury had a reasonable doubt about whether the complainants
    consented to their continued confinement were separate issues. The trial judge
    failed to make this clear for the jury; failed to instruct the jury adequately on
    consent; and failed to review the evidence and relate it to the consent issue. As
    a result, the jury may well have convicted the appellants despite having a
    reasonable doubt about consent.

[50]

The risk that this occurred was magnified by the trial judges failure
    to correct erroneous comments made by Crown counsel in his closing submissions.
    Counsel had by this point told the jury that [i]mportantly, why they didnt
    deliver Taylor and Reid forthwith doesnt matter  the comment the trial judge
    had required Crown counsel to remove from his PowerPoint slides  and stated that
    the appellants were guilty of the offence of unlawful confinement any time
    after they failed to call the police forthwith. Although Crown counsel made
    passing references to the complainants being held against their will (as set
    out previously), the clear thrust of his submissions would have left the jury
    with the impression that the appellants were guilty of unlawful confinement
    simply if they did not call the police forthwith. The problem is evident in the
    trial judges summary of the Crowns argument:

[T]he [Lahaies] are guilty of unlawful confinement because they
    failed in their duty to deliver Mr. Taylor and Mr. Reid to the police forthwith
    and, in fact, took no steps to do so for over five hours from the time they
    were detained. The clearest point of departure from their duty occurred when
    they called the parents and not the police.

[51]

Again, this summary is erroneous because it ignores the fact that the
    jury was required to acquit the appellants if they had a reasonable doubt as to
    whether the complainants consented to their continued confinement. It was
    incumbent on the trial judge to correct the Crowns erroneous remarks, lest the
    jury be left with a misunderstanding of the law, but he failed to do so.

[52]

Moreover, Crown counsel told the jury that the Lahaies were guilty of
    unlawful confinement even on the defence version of the facts. But as the trial
    judge put it in his jury instruction, Sylvain Lahaies version of the facts was
    that he decided not to call the police because the complainants begged him not
    to. He claimed that he specifically asked the complainants if they were proposing
    that they be cut loose on a promise that they would return and pay for what
    they had previously stolen. He said that the complainants confirmed this was
not
what they were proposing, and they instead proposed that their parents be called,
    and compensation paid.

[53]

On this version of events, the appellants would not be guilty of
    unlawful confinement because the complainants consented to their continued
    confinement. The trial judge should have corrected the Crowns assertion to the
    contrary and made it clear that it is the Crowns obligation to prove lack of
    consent beyond a reasonable doubt: the appellants were not guilty of unlawful
    confinement if the jury found, or had a reasonable doubt about whether, the
    complainants consented.

[54]

Although the trial judge provided a fair description of the issue of
    consent in summarizing Sylvain Lahaies position for the jury, this description
    appeared only in his summary of the defences position, and not in the trial
    judges own instruction on the law of consent. This was inadequate, given that
    counsel for Sylvain Lahaie expressly qualified his statements on the consent
    issue, describing them as subject to His Honours instructions on the point.

[55]

In summary, the consent of the complainants was a live issue on these
    facts. The combination of the erroneous statements in the Crowns closing submissions,
    the trial judges failure to correct them, and the errors in the trial judges instructions
    gives rise to a real risk that the jury may have convicted the appellants of
    unlawful confinement despite having a reasonable doubt about whether the
    complainants consented to their continuing confinement. The absence of an
    objection to the charge by defence counsel is no reason to deny relief for the
    errors in this case. The convictions cannot stand.

CONCLUSION

[56]

I would allow the appeal, set aside the convictions, and order a new
    trial.

Released: November 14, 2019 (D.W.)

Grant Huscroft J.A.

I agree. David Watt J.A.

I agree. M. Jamal J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leblanc, 2019 ONCA 928

DATE: 20191125

DOCKET: C64326

Simmons, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mathieu Leblanc

Appellant

Ronald Guertin, for the appellant

Jeremy Tatum, for the respondent

Heard and released orally: November 22, 2019

On appeal from the conviction entered on January 31, 2017
    by Justice Kevin B. Phillips of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Mr. Leblanc appeals from his conviction for possession of child
    pornography. The appellant was an employee of a department of the Federal
    government. He was accused of acting inappropriately by a co-worker which led
    to an internal investigation. As part of that investigation, the appellants
    work computer was seized.

[2]

An initial review of the appellants computer found an image that an internal
    investigator believed might be child pornography. The investigator alerted the
    police. The police attended and took possession of the appellants computer.

[3]

Unbeknownst to the police, as part of the internal investigation, a
    mirror copy of the hard drive of the appellants computer had been made and
    kept by the internal investigators. A further review of that mirror copy by the
    internal investigators revealed a large quantity of child pornography. The
    police were alerted again.

[4]

The police attended at the work site and looked at the mirror copy. The
    police, by this point, did not have a search warrant. A search warrant was
    subsequently obtained and charges were laid against the appellant.

[5]

On this appeal, two issues are raised. One is a challenge to the trial
    judges rejection of the appellants application to have the child pornography
    evidence excluded because the police review of the mirror copy of the hard
    drive without a warrant constituted a breach of the appellants s. 8
Charter
rights against unreasonable search and seizure. The other is a challenge to the
    trial judges conclusion that the Crown had proved, beyond a reasonable doubt,
    that the appellant had possession of the child pornography.

[6]

On the issue of the search warrant, the trial judge gave careful and
    detailed reasons in which, while he found a s. 8 breach, he declined to exclude
    the evidence under s. 24(2). We cannot find any error in his conclusion. We
    note that, as a general proposition, a trial judges s. 24(2) analysis is
    entitled to significant deference:
R. v. Mian
, 2014 SCC 54, [2014] 2 S.C.R.
    689, at para. 77. We also note that the appellant did not directly challenge
    the subsequently obtained search warrant that the trial judge found was
    properly issued even with the impugned officers evidence excised.

[7]

On the issue of possession, the trial judge gave thorough reasons for
    his conclusion that the only reasonable inference to be drawn from the facts as
    a whole is that the appellant had possession of the child pornography. The
    trial judge noted the salient facts that (i) the child pornography was found on
    the appellants workplace computer; (ii) the appellant had exclusive control
    over the computer through his unique user name and password; (iii) the child
    pornography had been transferred to the computer from an external device; (iv) expert
    evidence established that the folder in which the child pornography had been
    located had been created by the appellant; (v) certain subfolders within the
    folder clearly indicated the nature of the contents of the folders, that is,
    child pornography; and (vi) the appellant had attempted to delete the folder
    after learning he was the subject of a complaint and before his computer was
    seized. On this last point, we reject the appellants submission that the trial
    judge misused the admission made at trial.

[8]

In our view, it was open to the trial judge to draw the reasonable
    inference, from these facts, that the appellant was aware of the content of the
    folder on his computer and thus had possession of the child pornography as
    possession is defined in s. 4 of the
Criminal Code
. We cannot find any
    error in his conclusion in this regard.

[9]

The appeal is dismissed.

Janet Simmons J.A.

Grant Huscroft J.A.

I.V.B Nordheimer J.A.


WARNING

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

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

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ly, 2019 ONCA 879

DATE: 20191107

DOCKET: C66559

van Rensburg, Hourigan and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacky Ly

Appellant

No one appearing for the appellant

Michael Fawcett, for the respondent

Heard: November 5, 2019

On appeal from the conviction and
    sentence entered on February 12, 2019 by Justice Timothy E. Breen of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]      At
    the request of the Crown the appeal is dismissed as abandoned. The appellant
    failed to attend yesterday and was advised the Crown would be seeking a
    dismissal if he failed to attend today.  He did not attend today.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.S., 2019 ONCA 869

DATE: 20191105

DOCKET: C64100

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.S.

Appellant

Mark Halfyard, for the appellant

Elena Middelkamp, for the respondent

Heard: October 29, 2019

On appeal from the conviction entered on May 8, 2017 by
    Justice Jamie Trimble of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual interference and invitation to
    sexual touching but acquitted of sexual assault. The counts flow from three
    separate incidents involving his stepdaughter at the family home.

[2]

At trial, the appellant denied the allegations. During his examination, defence
    counsel (not appellate counsel) asked the appellant if he was aware of why the
    complainant would come forward and make these allegations. The appellant
    responded that he did not know why. The Crown confronted him with a prior
    police statement in which he stated that she made up the allegations because of
    an incident involving her boyfriend and established the inconsistency. The
    appellant acknowledged the statement.

[3]

The Crown then cross-examined the appellant extensively regarding the
    complainants motive to fabricate generally. Specifically, the Crown asked the
    appellant:

·

What
    possible reason she would have to make all this up;

·

Was
    there any reason why she would go to the police, make a statement, and come to
    court twice to testify;

·

What
    was her reason for making up the first and second incident;

·

What
    was her motive; and,

·

Why was she going to the police?

[4]

The trial judge also asked the appellant: was there some specific
    reason, some event, something happened, that you think caused [her] to lie
    about that and make up that story back then. The appellant responded that he
    did not remember exactly but she was being punished for something. At this
    point, the Crown continued the cross-examination about the complainants discipline
    and other reasons she may have had to make the allegations.

[5]

The trial judge referred to the evidence of motive in his reasons when
    he assessed the credibility of the appellant and the complainant.

[6]

The appellant submits that by allowing cross-examination on the motive
    to fabricate and then using the evidence to discredit the appellant and enhance
    the evidence of the complainant, the trial judge shifted the burden of proof
    and erred in law.

[7]

We accept the appellants submission and it is not necessary to address
    the other grounds of appeal.

[8]

It is well-established that there is no onus on the accused to comment
    on the credibility of the accuser. The Crown submits, and we agree, that there
    were inconsistencies in the appellants prior statement which were the proper
    subject matter of cross-examination.

[9]

The Crown also submits that, in addition to the inconsistencies, the further
    questions were justified because the appellant open[ed] the door by raising
    the complainants alleged motive to fabricate of his own accord.

[10]

We disagree. The evidence the appellant gave in-chief was that he did
    not know of any reasons why the complainant would make the allegations. There were
    therefore no claimed motives that required challenge by cross-examination. The
    Crown was entitled to pursue the inconsistencies in cross-examination and to
    proceed cautiously on the appellants response to the question in-chief.
    However, the cross-examination went far beyond the inconsistencies and scope of
    a proper cross-examination. The Crowns questions required the appellant to
    comment on  and indeed speculate  about the complainants motive, both
    generally and with respect to specific incidents. In this way, the questioning
    went directly against long-standing jurisprudence by improperly placing the
    onus on the appellant to explain why the complainant would falsely accuse him.
    This court set out the rationale for limiting the line of questioning about the
    complainants motives in
R. v. T.M
., 2014 ONCA 854, at paras. 37-38:

The appellant argues that this cross-examination was improper.
    He relies on the many decisions of this court that have held it is improper to
    call upon an accused to comment on the credibility of his accusers: see
R. v. Rose
(2001
)
,
2001 CanLII 24079 (ON CA)
,
53 O.R. (3d) 417 (C.A.)
, at para.
27
, per Charron J.A.;
    and
R. v. L.L.
,
2009 ONCA
    413 (CanLII)
,
96
    O.R. (3d) 412
,
    at paras.
15-16
, per Simmons
    J.A.

The concern with this line of
    questioning is two-fold. First, it is unfair to ask an accused to speculate
    about a witnesss motives. Second, these questions risk shifting the burden of
    proof. The burden is on the Crown to prove beyond a reasonable doubt that a
    complainants allegations are true. Yet questions to an accused about a
    complainants motives may cause the trier of fact to focus on whether the
    accused can provide an explanation for why a complainant would make false
    allegations, and find the accused guilty if a credible explanation is not
    forthcoming.

[11]

That defence counsel did not object to the line of questioning is not
    determinative. As this court held in
R. v. L.(L
.
)
, 2009 ONCA 413,
    96 O.R. (3d) 412, at para. 17:

Contrary
    to the submissions of the trial Crown, the fact that it may be appropriate for
    the police to ask such questions as part of an investigation does not mean that
    portions of an accused's statement in which such questions are asked are
    properly admissible. This court made that clear in
C.(F.).
In that case,
    even though no objection was raised at trial, this court held that portions of
    an accused's statement to the police asking him to explain why the complainant
    made the allegations and why some people believed the complainant should not
    have been placed before the jury.

[12]

The trial judges reasons disclosed that he used the evidence adduced
    from the appellant on cross-examination to enhance the complainants
    credibility. Although he instructed himself not to equate credibility with an absence
    of motive to fabricate, he relied on the absence of motive to enhance the
    complainants credibility. At two different points in the reasons, the trial
    judge stated that there is no evidence that the complainant had any reason to
    fabricate these complaints. Moreover, he found, at para. 107:

Finally, there is no evidence that
    [the complainant] had any reason [to] fabricate these complaints against [the
    appellant].
There was no ulterior motive.
[Emphasis added.]

[13]

The trial judge erred by using the evidence to enhance his assessment of
    the complainants credibility. He fell into the error articulated in
R. v.
    Bartholomew,
2019 ONCA 377, at para. 23 and transformed the absence of a
    proven motive to fabricate into a proven lack of motive. A proven absence of
    motive may provide a platform to assert that the complainant must be telling
    the truth:
Bartholomew
, at para. 21. But, the absence of evidence of
    motive does not mean that the complainant must be telling the truth.

[14]

The danger in relying on this factor to bolster the complainants
    credibility is that an absence of proved motive is often unreliable. This court
    has raised this concern repeatedly:

There are simply too many reasons
    why a person might not tell the truth, most of which will be unknown except to
    the person her/himself, to use it as a foundation to enhance the witness
    credibility. Consequently, [a motive to fabricate] is an unhelpful factor in
    assessing credibility:
R. v. Sanchez
, 2017 ONCA 994, at para. 25, citing
L.(L.)
at para. 44.

[15]

To a lesser extent, the trial judge appears to have relied on this
    evidence in evaluating the appellants testimony. At para. 104, the trial judge
    disbelieved the appellants evidence about the complainant being punished by
    saying that his explanation for the complainants motive makes no sense and
    was vague. Using the appellants testimony in this way tacitly shifted the
    burden of proof onto the appellant to demonstrate that the complainant had a
    motive to fabricate: see
R. v. Batte
(2000), 49 O.R. (3d) 321, at para.
    121 (C.A.).

[16]

This court has provided ample direction on the permissible use of a motive
    to fabricate in assessing credibility at the trial level. A misplaced emphasis on
    motive overlooks the fact that motive is, at best, a secondary consideration,
    and offers limited assistance to either party when sexual offences are at
    issue. At trial, the chief task is  and must remain  whether the Crown has
    met its burden beyond a reasonable doubt.

[17]

Accordingly, the appeal is allowed, and a new trial is ordered.

M.L. Benotto J.A.

David Brown J.A.

David M. Paciocco
    J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.S., 2019 ONCA 894

DATE: 20191112

DOCKET: C64410

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.S.

Appellant

Jeffrey Berman, for the appellant

Adam Wheeler, for the respondent

Heard and released orally: November 6, 2019

On appeal from the sentence imposed on July 17, 2019 by
    Justice Beverly A. Brown of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant, a youthful first offender, pleaded guilty to counts of
    incest; sexual assault; and making, possessing and distributing child
    pornography. The victim in the counts of incest and sexual assault, and the
    person depicted in the child pornography, was the appellants four-year-old
    daughter of whom he had sole custody.

[2]

The trial judge imposed a global sentence of ten years which she reduced
    to seven and one-half years on account of pre-sentence custody. She also made
    several ancillary orders, among them a victim surcharge.

[3]

The appellant appeals sentence. He seeks a reduction in the custodial
    portion of the sentence to a net term of four and one-half years, and asks that
    the victim surcharge be set aside under
R. v. Boudreault
, 2018 SCC 58.

[4]

In this court, the appellant advances three grounds of appeal. He says
    that the sentencing judge erred:

i.

in relying on a dissenting opinion in a prior decision of this court in
    determining a fit sentence;

ii.

in
    considering the sexual abuse of the complainant as an aggravating factor in the
    sentences imposed in the child pornography offences (a ground contained in his
    factum, but not pursued in oral argument); and

iii.

in
    imposing a demonstrably unfit sentence.

[5]

In our view, except for the victim surcharge, which should be set aside,
    this appeal fails.

[6]

In appeals from sentence, an intermediate appellate court is only
    entitled to intervene in connection with a sentence imposed at trial on the
    basis that the sentencing judge:

i.

erred in principle;

ii.

failed to consider a relevant factor; or

iii.

erroneously
    considered an aggravating or mitigating factor, and that the error had an
    impact on the sentence imposed.

R. v. Lacasse
, 2015 SCC 64, at para. 44.

[7]

Our inquiry focuses on the fundamental principle of proportionality,
    which requires that the sentence be proportionate to the gravity of the offence
    and the degree of the responsibility of the offender. A sentence is
    demonstrably unfit if, but only if, it constitutes an unreasonable departure
    from that fundamental principle:
Lacasse
, at para. 53.

[8]

We acknowledge that the sentencing judge erred in her reference to the
    dissenting judgment in
R. v. P.M
., 2012 ONCA 162, as if it were that
    of the majority of the court on the issue of a fit sentence. It was, however,
    but one of several authorities which the sentencing judge considered.

[9]

More importantly, in our view, this error had no impact on the fitness
    of the sentence the sentencing judge ultimately imposed. Tested against the
    fundamental principle of proportionality, the reference to the dissenting
    judgment in
P.M.
did not result in a sentence that was
    disproportionate to the gravity of the offences or the moral blameworthiness of
    the appellant.

[10]

Nor are we persuaded that the sentencing judge erred in considering the
    sexual abuse of the complainant as an aggravating factor in determining the
    sentence to be imposed on the child pornography counts. These offences involved
    an egregious breach of trust. They violated the physical and sexual integrity
    of a four-year-old child. The appellants conduct  that of a predator, not a
    protector  attracted the operation of the aggravating factors in ss. 718.01
    and 718.2(a)(ii.1) and (iii). We are satisfied that the sentence imposed is
    fit.

[11]

In the result, leave to appeal sentence is granted and the appeal
    allowed to the extent that the victim surcharge imposed at trial is set aside.
    The appeal from sentence is otherwise dismissed.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Munoz-Hernandez, 2019 ONCA 870

DATE: 20191105

DOCKET: C61045

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronny Munoz-Hernandez

Appellant

Amy J. Ohler, for the appellant

Gavin MacDonald, for the respondent

Heard: October 29, 2019

On appeal from the conviction entered on January 14, 2015
    by Justice Nola E. Garton of the Superior Court of Justice, with reasons
    reported at 2015 ONSC 243.

REASONS FOR DECISION

[1]

Ronny Munoz-Hernandez  charged with second degree murder in the tragic death
    of Adriel Garcia, Jessica DaSilvas, five-and-a-half-month-old son  appeals
    his conviction of the included offence of manslaughter. His sole ground of
    appeal is that the trial judge erred by applying uneven scrutiny to the Crown
    and defence evidence.

[2]

Uneven scrutiny is a notoriously difficult ground of appeal, often
    amounting in substance to an invitation to retry the case. That is the case
    here, and the appeal must therefore fail.

[3]

Mr. Munoz-Hernandez does not dispute that young Adriel died as the
    result of intentionally applied, significant force that caused a massive, fatal
    brain injury. Nor does he contest that on September 12, 2010, when the boy was
    brought, comatose, to the hospital, his body was covered in extensive bruising caused
    by the intentional application of force.

[4]

Only two people, Mr. Munoz-Hernandez and Ms. DaSilva, had the
    opportunity to cause the fatal injury: Mr. Munoz-Hernandez, while babysitting
    the child when Ms. DaSilva was at a wedding; and Ms. DaSilva, upon returning
    from the wedding at 3:00 a.m.

[5]

Both Mr. Munoz-Hernandez and Ms. DaSilva testified. Mr. Munoz-Hernandez
    accepts that given the significant difficulties with his own evidence, the
    trial judge was entitled to disbelieve it beyond a reasonable doubt. His appeal
    centres on the trial judges decision to accept the heart of Ms. DaSilvas
    testimony beyond a reasonable doubt.

[6]

There were numerous inconsistencies in Ms. DaSilvas testimony: in the
    hours leading up to Adriels death, Ms. DaSilva told a cavalcade of lies to
    friends and family about who was caring for him; she misled the court when
    narrating her life after Adriel was born; she lied under oath at the hospital to
    the police by offering an elaborate, false story about Clara, a fictitious
    baby-sitter whom Ms. DaSilva said had care of Adriel until the morning he was
    taken to the hospital; and she failed to remember large swaths of the narrative
    surrounding Adriels death. Mr. Munoz-Hernandez argues that the trial judge downplayed
    the grave problems with her evidence and failed to explain why these
    infirmities did not undercut her credibility and reliability generally. He contends
    that the decision to credit Ms. DaSilva resulted from uneven scrutiny in the
    following ways.

[7]

First, some of the specific uneven scrutiny submissions revolve around
    the trial judges keystone finding that Mr. Munoz-Hernandez had volunteered to
    babysit Adriel while Ms. DaSilva was at the wedding. This issue took on
    importance because Mr. Munoz-Hernandez claimed that he did not volunteer to
    watch Adriel. Rather, Ms. DaSilva foisted Adriel on him against his will
    because she was afraid that a babysitter would see the bruises she had
    inflicted on the child. Specifically, Mr. Munoz-Hernandez contends that the
    trial judge acted unevenly in coming to this conclusion by:

·

Using Mr. Munoz-Hernandezs minimization of his relationship with
    Ms. DaSilva and Adriel as a discreditable attempt to create doubt about whether
    he would volunteer to care for Adriel, while disregarding Ms. DaSilvas
    minimization of her relationship with him; and

·

Ignoring evidence that supported the credibility of his denial of
    volunteering to babysit, including: (1) his care-giving history, and (2) his
    apparent disinterest in Adriel as shown by repeatedly leaving Adriel alone when
    babysitting. The trial judge instead used this finding of disinterest as
    support for Mr. Munoz-Hernandezs animus against Adriel.

[8]

Second, Mr. Munoz-Hernandez has further concern with the trial judges
    animus finding. He claims that the trial judge disregarded Ms. DaSilvas demonstrated
    indifference toward Adriel, as well as a comment she made about his crying,
    while using similar evidence as proof of animus on the part of Mr.
    Munoz-Hernandez.

[9]

Third, he argues that the trial judge treated Ms. DaSilvas evidence
    that Mr. Munoz-Hernandez was not prone to becoming frustrated with the baby as a
    demonstration of her honesty, but Mr. Munoz-Hernandez was not credited for the
    positive comments he made about her parenting. Instead, any negative comments he
    made about her parenting were treated as evidence of his eagerness to criticize
    Ms. DaSilva.

[10]

Fourth, the trial judge found that Mr. Munoz-Hernandez told Ms. DaSilva
    to lie about Clara because he stood to benefit from the story, while failing
    to recognize that Ms. DaSilva also stood to gain from the creation of a
    third-party suspect.

[11]

Finally, the trial judge speculated needlessly about how Mr.
    Munoz-Hernandez could have been responsible for the wet spot on the comatose
    childs clothing and could have dragged the playpen back into the bedroom after
    Adriel was found unconscious, when the playpen was beside the inflatable bed in
    the living room.

[12]

We do not accept that the trial judge applied different standards in
    assessing the evidence of the appellant and the complainant. In the following
    analysis, we choose not to track the precise order of issues just presented.
    Doing so would create unnecessary overlap. We will therefore begin by
    addressing the general submission that the trial judge downplayed or failed to
    explain why the concerns with Ms. DaSilvas testimony did not create a
    reasonable doubt, and then we will address, as convenient, each of the specific
    objections taken to the trial judges reasoning.

[13]

We reject the submission that the trial judge downplayed the concerns
    with Ms. DaSilvas evidence. The trial judge recognized repeatedly that Ms. DaSilva
    lied to friends and family about Adriels care, gave a false account of her
    life after Adriel was born, lied to the police about Clara, and that much of
    her evidence was unreliable. Moreover, she admonished herself more than once
    that Ms. DaSilvas evidence must be examined very carefully and with great
    caution.

[14]

Nor were the frailties in Ms. DaSilvas evidence disregarded. The trial
    judge openly identified the weaknesses with Ms. DaSilvas testimony that Mr.
    Munoz-Hernandez relies upon. More importantly, having appropriately cautioned
    herself, the trial judge did not simply take Ms. DaSilva at her word. She accepted
    Ms. DaSilvas innocent account because it fit the evidence, unlike Mr.
    Munoz-Hernandezs account.

[15]

There was no evidence that Adriel had ever shown bruising or injury
    before, despite having been in Ms. DaSilvas primary care for his entire life. There
    was evidence that Adriel did not have bruising the day before the wedding. It was
    implausible that Ms. DaSilva would suddenly begin striking and bruising him in
    the hours leading up to the wedding, or that after an enjoyable time at the
    wedding she would come home and forcefully abuse Adriel because she had
    exchanged words with Mr. Munoz-Hernandez. The trial judge was entitled to find
    that if such an assault occurred, it is most unlikely that Mr. Munoz-Hernandez
    would have slept through it, yet he offered no evidence of hearing any such attack.
    In these circumstances, the foundation for the theory that Ms. DaSilva
    inflicted the injury was weak.

[16]

In contrast, the trial judge was entitled to accept evidence that Mr.
    Munoz-Hernandez exhibited animus towards Adriel when Adriel was in his care, by
    telling a friend that Adriel was a cry baby and bragging that, for this
    reason, he had put hot sauce on Adriels lips, and put him in the fridge and a
    cold bath.

[17]

The trial judge found that the indifference Mr. Munoz-Hernandez showed to
    Adriels welfare by leaving him alone in the apartment on three separate
    occasions when he was supposed to be watching him supported her animus finding.
    This finding did not demonstrate uneven scrutiny. Unlike the indifference Ms.
    DaSilva may have shown in Adriels caregiving on other occasions, Mr. Munoz-Hernandezs
    indifference had specific relevance. It was exhibited when Adriel was in his
    care, during the time period in which the fatal head injuries could have been
    inflicted.

[18]

Moreover, this demonstrated indifference was not consistent with Mr.
    Munoz-Hernandezs innocent claim that he put the playpen next to the bed
    because he wanted to be near the child as he slept. The trial judge was
    entitled to find that his decision to move the playpen and put Adriel next to
    him was more logically explained by Mr. Munoz-Hernandezs concern that, even before
    Ms. DaSilva returned home, the child was in trouble, showing the symptoms of
    distress that a brain-injured child would exhibit. Mr. Munoz-Hernandez now had
    reason to be worried about Adriel.

[19]

This inference was bolstered by the observations of the childs
    condition by Mr. Munoz-Hernandezs friend, Jhon Molina, shortly before Ms.
    DaSilva returned, and by Mr. Molinas testimony about Mr. Munoz-Hernandezs
    attempts at nursing the distressed child. Simply put, Ms. DaSilvas
    indifference did not warrant the attention in the trial judges decision that
    Mr. Munoz-Hernandezs disinterest did.

[20]

Nor is it surprising that the trial judge focused on Mr.
    Munoz-Hernandezs lukewarm description of his relationship with Ms. DaSilva and
    Adriel, but not on Ms. DaSilvas lukewarm description of her relationship with
    him. His account took on specific relevance in the light of his testimony, but
    her relationship evidence was and remained an unimportant aside.

[21]

Mr. Munoz-Hernandezs contradicted description of his relationship with
    Ms. DaSilva took on importance because he claimed that Ms. DaSilva forced him
    to take Adriel out of fear that another babysitter would see the bruises she
    had left. If he admitted to a close relationship with Ms. DaSilva, it made Ms.
    DaSilvas alternative version, that Mr. Munoz-Hernandez had in fact volunteered
    to watch Adriel, more plausible.

[22]

There was other contradictory evidence that exposed his account as
    false, thereby reinforcing the trial judges conclusion that Mr.
    Munoz-Hernandezs relationship evidence was part of his effort at deception. First,
    the day before the wedding, Ms. DaSilva showed no fear in letting her second cousin,
    Ashley Martins, see a happy and healthy Adriel. Ashley observed no bruising. Second,
    Mr. Munoz-Hernandezs own account of the relevant event discredited his claim
    that Ms. DaSilva left Adriel with him to conceal her own guilt. He described
    seeing only insignificant bruising when changing Adriel after Ms. DaSilva left,
    undermining the foundation for his own story. Moreover, Mr. Munoz-Hernandezs
    version was implausible, as he made no attempt to confront her about bruising,
    nor did he check if Adriel was really bruised when she first told him. It was
    in this context that Mr. Munoz-Hernandezs contradicted claim of disinterest in
    his relationship with Ms. DaSilva and Adriel took on importance. Ms. DaSilvas
    description of her relationship with Mr. Munoz-Hernandez never took on such
    significance.

[23]

The trial judges decision to act on the heart of Ms. DaSilvas testimony
    also received substantial support through Mr. Munoz-Hernandezs after-the-fact
    conduct.

[24]

Specifically, the trial judge was entitled to treat Mr.
    Munoz-Hernandezs musings about how awful it would be to be put in jail in
    Canada, made after Adriel became ill, as an expression of concern about his own
    jeopardy.

[25]

Mr. Munoz-Hernandez also left the hospital where Adriel was being
    attended to, stole his brothers drivers licence, fled to Montreal, assumed a
    new identity, and remained in hiding for close to a year.

[26]

In contrast, after telling the Clara story to the police, Ms. DaSilva
    asked to be re-interviewed by the police, retracted that story, and disclosed
    how Mr. Munoz-Hernandez was the babysitter, without suggesting that he was
    responsible for the injury or attempting to cast suspicion on him.

[27]

This latter feature has obvious relevance to Ms. DaSilvas credibility.
    It carries more significance than the positive things Mr. Munoz-Hernandez said
    about Ms. DaSilvas parenting, given that Mr. Munoz-Hernandez also provided
    negative information about her care for Adriel. It was natural and appropriate that
    the trial judge would give more focus to the positive things Ms. DaSilva said
    about Mr. Munoz-Hernandez in her decision.

[28]

We agree with Mr. Munoz-Hernandez that the lies that Ms. DaSilva told at
    the hospital about Clara would have benefited not only Mr. Munoz-Hernandez, but
    also Ms. DaSilva because they both had the opportunity to harm Adriel. The
    trial judge should not have treated Mr. Munoz-Hernandez as the only one who could
    benefit from the lie. However, this flaw in the trial judges reasoning does
    not signal uneven scrutiny. She gave several reasons for accepting Ms.
    DaSilvas claim that Mr. Munoz-Hernandez initiated the lie, including that this
    account is consistent with his statements about being afraid of going to jail;
    he was not shy about telling Ms. DaSilva what to do; and unlike Mr.
    Munoz-Hernandez, Ms. DaSilva did not attempt to avoid the police. Indeed, she
    is the one who retracted the Clara story and did so without attempting to
    implicate Mr. Munoz-Hernandez, the only other potential suspect. This event
    supports an inference that it was not Ms. DaSilva who was looking for
    alternative suspects; it was Mr. Munoz-Hernandez, the one who felt the need to
    flee.

[29]

We also agree with Mr. Munoz-Hernandez that in order to resolve the case
    the trial judge did not have to determine how Adriels shirt became wet when he
    was comatose, or how the playpen got back into the bedroom. However, the trial
    judges passive observations that Mr. Munoz-Hernandez had the opportunity to
    produce both these outcomes does not indicate an imbalance in evaluating the
    evidence. Instead, it reflects the trial judges careful attempt to address all
    the evidence in the case.

[30]

Uneven scrutiny did not occur. The trial judge was entitled to make the
    credibility findings that she did, and to come to the decision that she did.

[31]

The appeal is therefore dismissed.

M.L. Benotto J.A.

David Brown J.A.

David M. Paciocco
    J.A.