COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jaffer, 2021 ONCA 325

DATE: 20210517

DOCKET: C64987

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Abbas Jaffer

Appellant

Breana Vandebeek, for the appellant

Tracy Kozlowski, Katie Doherty and Lisa
    Fineberg, for the respondent

Heard: January 12-13, 2021 by
    videoconference

On appeal from the conviction entered by
    Justice Anne Mullins of the Superior Court of Justice, sitting with a jury, on October
    25, 2016, and the entrapment ruling dated October 16, 2017, and the sentence
    imposed on February 23, 2018.

Juriansz J.A.:

[1]

This appeal was argued together with two other
    defence appeals,
R. v. Haniffa
and
R. v. Dare
, and a Crown
    appeal,
R. v. Ramelson
. All of the appeals arose out of arrests and
    prosecutions pursuant to Project Raphael of the York Regional Police (YRP).
    Project Raphael was an undercover YRP investigation that began in 2014 with the
    objective of reducing the demand for sexual services from juveniles in the
    region by targeting the buyer side.

[2]

As part of the investigation, the police posted
    fake advertisements in the escorts section of the online classified
    advertising website Backpage. When persons responded to the ads, an undercover officer
    posing as the escort would disclose in the ensuing text chat that she was underage.
    Individuals who continued the chat and arranged sexual services and a price were
    directed to a hotel room to complete the transaction and were arrested and
    charged on their arrival.

[3]

The common issue in the four appeals is whether
    the individuals who were arrested and prosecuted pursuant to Project Raphael
    were entrapped by the police. The appellant also appeals his sentence.

[4]

For the reasons that follow, I would dismiss the
    appeal from the dismissal of the entrapment application. I would also dismiss
    the appellants appeal of his sentence.

A.

The facts in this case

[5]

In this case, the ad placed in the escort
    section of Backpage purported to have been placed by Kathy. Kathy described
    herself as a Tight Brand New Girl. The ad included photographs of a female
    police officer, whose face was not shown, posing as Kathy. The ad indicated Kathy
    was 18 years old, the minimum age allowed by Backpage.

[6]

On October 24, 2014, the appellant texted Kathy
    and asked her rates. Truong responded and, after exchanging several preliminary
    messages, texted, well im not quite 18 yet r u ok with that. The appellant
    responded, Yea Im okbut how much younger are u? 17? Truong responded, im
    turning 16 on sunday but I look 18. The conversation continued and the
    appellant texted, Ok can I ask why youre escorting if its okay with u?
    Usually people your age dont know about this industry. Truong responded
    saying that Kathys friend got her into it because she needed the money. The
    appellant eventually proceeded to the hotel.

[7]

When the appellant arrived at the room, he was
    arrested and charged with telecommunicating with a person he believed to be
    under the age of 18 contrary to s. 172.1(2) (child luring under 18), and
    communicating to obtain for consideration the sexual services of a person under
    18 contrary to s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual
    services from a minor) of the
Criminal Code
, R.S.C., 1985, c. C-46. While
    the information references s. 172.1(2), this count relates to the offence under
    s. 172.1(1)(a). Section 172.1(2) sets out the punishment for this offence. The
    appellant was also charged with two counts under s. 172.2(2) and a further
    count under s. 172.1(2) but was not tried on these charges.

[8]

At trial, the appellant testified that his
    initial purpose for responding to Kathys ad was to engage in a sexual
    relationship, but his intentions changed when he learned that Kathy was
    underage. He said he thought it was strange for Kathy to reveal her age and thought
    it was a cry for help  the only reason that an escort would reveal they were
    underage was out of fear of their pimp. As a result, he testified that he
    continued the interaction intending to assist Kathy and did not intend to
    engage in sex with her once he learned her age. In support of this testimony, the
    appellant gave evidence that he had arranged to meet an adult escort later the
    same evening and only had enough cash on his person to pay for a single escort.

[9]

When he was being arrested, the appellant told
    police that he intended to contact the police to help Kathy. The appellant
    claimed he had previously assisted the police in investigating the pimp of an
    escort he had met on Backpage and this was corroborated by police testimony at
    trial.

[10]

The jury disbelieved the appellants evidence
    and found him guilty of both counts. The sentencing judge stayed the conviction
    on s. 212(4) (now s. 286.1(2)) (communicating to obtain sexual services from a
    minor) based on
Kienapple v. R.
, [1975] 1 S.C.R. 729.

[11]

The appellant applied for a stay of proceedings
    on the basis he had been entrapped. The application was denied and the
    appellant was sentenced to six months incarceration, less credit for time on
    house arrest, resulting in an effective sentence of four months, two weeks and
    three days.

B.

arguments on appeal

[12]

The appellant submits the trial judge made three
    errors:

1.

by concluding Project Raphael was a bona fide
    inquiry and failing to find that he was entrapped;

2.

by failing to find the appellant had been
    induced into committing the offence; and

3.

by imposing an unfit sentence by refusing to
    impose a conditional sentence, failing to give sufficient reasons for the
    sentence imposed, and failing to assign appropriate weight to the aggravating
    and mitigating factors.

C.

Analysis

(1)

Opportunity-based entrapment

[13]

Appellants
    counsel adopted the submissions made in
Haniffa
on the issue of opportunity-based
    entrapment adding her own emphasis and references to the record in this case. As
    he had in
Haniffa
, Truong testified in this case that underage persons
    advertised on Backpage do not reveal their true age in their communications
    with unknown callers. He added, that if they did disclose their age, they would
    do so only when they met the customer face to face and felt comfortable. He
    said what typically happens is that the customer shows up expecting an
    18-year-old and the person turns out to be a child. Only when the customer takes
    the initiative to question their age, might their age come out.

[14]

Counsel submits
    this testimony shows the police had no real information as to the scale of the
    problem  how many underage persons were being sold on Backpage and how many customers
    knowingly purchased underage persons. She submits the information was so paltry
    that it cannot be said the police had reasonable suspicion.

[15]

I dealt with
    this argument in the comprehensive reasons of
Ramelson
. I explain that
    Truongs testimony, based on his extensive experience, gave the trial judge an
    evidentiary basis for concluding the police had reasonable suspicion persons
    were going onto Backpage and engaging underage persons thus committing the s.
    286.1(2)
(obtaining sexual services from a
    minor)
offence. Truong gave the same testimony in
    this case.

[16]

For the reasons
set out in
Ramelson
, I reject this argument.

(2)

Inducement-based entrapment

[17]

While
Ramelson
dealt comprehensively with
    the arguments related to opportunity-based entrapment, Mr. Jaffer raised the
    issue of inducement-based entrapment as well.

[18]

This branch of entrapment applies when the
    police, even though they may have a reasonable suspicion or are acting in the
    course of a bona fide inquiry, go beyond providing an opportunity and induce
    the commission of an offence:
R. v. Mack
, [1988] 2 S.C.R. 903, at pp.
    964-965;
R. v. Barnes
, [1991] 1 S.C.R. 449, at p. 460.
Mack
is an
    example of this second branch. A police agent persisted in attempting to
    persuade Mack, who had dated drug convictions, to participate in a large drug
    deal despite his refusals. Mack finally participated in the drug transaction
    because of the police agents persistence, his use of threats, and the offer of
    a large amount of money. Macks conviction was upheld by the British Columbia
    Court of Appeal. In allowing his appeal, the Supreme Court ruled he had been
    entrapped. Though the police had reasonable suspicion that Mack was involved in
    criminal conduct, they went too far in their efforts to attract him into committing
    the offence.

[19]

The Supreme Court in
Mack
set out a
    number of factors to consider to determine whether the police have employed
    means which go further than providing an opportunity at p. 966:

-

the type of crime being investigated and the availability of other
    techniques for the police detection of its commission;

-

whether an average person, with both strengths and weaknesses, in
    the position of the accused would be induced into the commission of a crime;

-

the persistence and number of attempts made by the police before the
    accused agreed to committing the offence;

-

the type of inducement used by the police including: deceit, fraud,
    trickery or reward;

-

the timing of the police conduct, in particular whether the police
    have instigated the offence or became involved in ongoing criminal activity;

-

whether the police conduct involves an exploitation of human
    characteristics such as the emotions of compassion, sympathy and friendship;

-

whether the police appear to have exploited a particular
    vulnerability of a person such as a mental handicap or a substance addiction;

-

the proportionality between the police involvement, as compared to
    the accused, including an assessment of the degree of harm caused or risked by
    the police, as compared to the accused, and the commission of any illegal acts
    by the police themselves;

-

the existence of any threats, implied or express, made to the
    accused by the police or their agents;

-

whether the police conduct is directed at undermining other
    constitutional values.

[20]

Counsel argued that the appellants factual
    circumstances strongly suggest that he is a person who succumbed to random
    virtue testing. He was 22 years old and went on Backpage seeking an 18-year-old
    escort. He had maintained an A average throughout university and graduated with
    a bachelors degree in science. He was of prior good character, from a close
    family that supported him, and active with his church. Counsel submitted his
    testimony showed he was an odd and strange person who was lacking in social
    relationships and could not form relationships with women. He testified he
    began seeing prostitutes because he could not get a girlfriend. He testified
    that his first encounter on Backpage, with a prostitute who was 40 years of age,
    was the first time he had held hands with a woman. The expert report of a
    clinical and forensic psychologist, which was subsequently obtained for
    sentencing, diagnosed the appellant as falling within the autistic spectrum of
    neurological disorders and with depression and anxiety. His chat history and
    phone records introduced at trial showed that he was not looking for someone
    underage. The day he was arrested he had talked with escorts ranging in age from
    18 to 40.

[21]

Counsel submits that the purpose of the law of
    entrapment is to promote societys respect for the administration of justice
    and not to lure people like the appellant into committing offences.

[22]

The trial judge observed that drawing the line
    between providing an opportunity and inducing the commission of an offence is
    not always easy but rejected the argument the appellant had been induced. She
    concluded that the evidence showed clearly that the appellant was determined
    to purchase sexual services and gave specific consideration to the information
    as to the age of the purveyor before he acted on his choices. The appellants
    messages in the text chat provided a basis for the trial judges conclusion.

[23]

I would not give effect to this ground of
    appeal.

(3)

The sentence appeal

[24]

The appellant was sentenced on his conviction for
    the s. 172.1 offence. As mentioned, the conviction under s. 212(4) (now s. 286.1(2))
    (communicating to obtain sexual services from a minor) was stayed. At the time
    he committed the offence the maximum punishment for the s. 172.1 offence was imprisonment
    for 10 years.

[25]

At sentencing, the appellant argued that a
    conditional sentence was appropriate given his youth, pro-social lifestyle, and
    personal background. He had been diagnosed as falling within the autistic
    spectrum of neurological disorders and suffered from severe depression and
    anxiety. The psychological testing also established that the appellant was not
    a pedophile and did not have a sexual preference for minors.

[26]

The trial judge found that the evidence at trial
    coincided with the assessment of the psychologist that he has not had
    opportunity for an appropriate, socially meaningful, expression of the sexual
    desires to be expected of a young adult. She found there was no evidence that
    the appellant was seeking sexual services from an underage person when he
    responded to the ad posted by the police, that he was unlikely to reoffend, and
    that he did not require rehabilitation. She concluded a lengthy custodial
    sentence would not serve the principles of sentencing, and as noted, imposed an
    effective sentence of four and one-half months incarceration.

[27]

The appellant submits that the trial judge's
    reasons are insufficient to explain why she refused to impose a conditional
    sentence, and do not permit meaningful appellate review of that refusal. Therefore,
    this court should sentence the appellant anew. In addition, the appellant
    submits that the COVID-19 pandemic is a collateral consequence that impacts the
    fitness of the sentence imposed. He requests that the court impose a sentence of
    house arrest to address the collateral consequence of the COVID-19 pandemic.

[28]

I am not persuaded the trial judges reasons are
    insufficient. While she does not specifically itemize the mitigating factors that
    she took into account, her detailed description of the appellants
    circumstances includes all those facts that the appellant submits are
    mitigating. And while she did not discuss the appellant's request for a
    conditional sentence, she did observe the crime was a grave one with a maximum
    punishment of 10 years imprisonment and did state that any lesser sentence
    would be inconsistent with the principles of denunciation and deterrence.

[29]

I would dismiss the appeal against sentence.

D.

Conclusion

[30]

For these reasons, I would dismiss both the
    conviction and sentence appeal.

Released: May 17, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Tulloch J.A.

I agree. David M. Paciocco J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: R. c. Jeanty, 2021 ONCA 395

DATE: 20210604

DOSSIER: C67595

Les juges Rouleau, Hoy et van
    Rensburg

ENTRE

Sa Majesté la Reine

Intimée

et

Mont-Louis Jr. Jeanty

Appelant

David Parry, pour lappelant

Nicolas de Montigny, pour lintimée

Date de laudience : le 1
    juin 2021 par visioconférence

Décision rendue séance tenante

En appel de la condamnation prononcée le
    23 novembre 2018 et de la peine imposée le 21 janvier 2019 par la juge Diane Lahaie
    de la Cour de justice de lOntario.

MOTIFS DE LA COUR

[1]

Lappelant a été reconnu coupable de voies de
    fait, omission de se conformer, possession de biens criminellement obtenus,
    méfait à légard dun bien, agression armée, avantage matériel provenant de la prestation
    de services sexuels et proxénétisme.

[2]

Il demande lautorisation dinterjeter appel contre
    la peine de 55 mois impos
ée
par
    la juge. Si lautorisation est accord
é
e, il interjette appel contre cette peine.

[3]

À
notre avis, lautorisation
    dinterjeter appel doit être accordée, mais lappel doit
ê
tre rejet
é
.

[4]

Le premier moyen dappel soulevé
par lappelant
est que la juge a mal interprété
    la preuve et a err
é
en
    concluant à lexistence dune strat
é
gie visant
à
amener,
à
persuader et
à
inciter la plaignante
à
retourner dans le domaine de prestation de
    services sexuels. La juge a conclu que ceci constituait un facteur aggravant
    pour les fins de la d
é
termination
    de la peine. Selon nous, il ny a pas eu erreur en lesp
è
ce.

[5]

La preuve démontrait que la plaignante avait
    cess
é
de travailler dans le
    domaine de lindustrie du sexe et sétait battue beaucoup pour en sortir. Lappelant
    savait que la plaignante était fermée à lidée dy retourner au début de leur
    relation, mais quelle était toutefois vulnérable. Lappelant a apaisé les
    craintes de la plaignante et la encouragée à retourner à lindustrie du sexe.
    La preuve appuie également la conclusion que lappelant exerçait un contrôle
    continu sur elle dans le cadre de la relation. La plaignante, victime de
    violence et de manipulation, était sous lemprise de laccus
é
. La conclusion que lappelant a exploité
    la vulnérabilité de la plaignante et la amen
é
à rendre des services sexuels moyennant rétribution est bien ancrée
    dans la preuve.

[6]

Nous rejetons aussi le deuxième moyen dappel. À
    notre avis, la peine nest pas manifestement déraisonnable. La juge a identifié
    les facteurs atténuants applicables, dont le fait que les événements se sont déroulés
    pendant une période très limitée, quil ne sagissait pas dune situation
    impliquant une jeune plaignante qui navait jamais travaillé dans le domaine
    auparavant et que les activités sexuelles ont rapporté moins de 1000 $. Par
    contre, elle a aussi reconnu quil sagissait dune cause de violence conjugale
    et que la plaignante a subie de blessures importantes. La juge sest bien référée
    à la fourchette de peines pour linfraction de proxénétisme décrite dans
R.
    v. Lopez
, 2018 ONSC 4749
,
    tout en notant que la grande majorité des facteurs aggravants discutés dans
Lopez
étaient absents dans ce dossier. Elle na pas confondu les facteurs pertinents lors
    dune condamnation sous larticle 279.01 du
Code criminel
, L.R.C.
    (1985), ch. C-46, dont lexploitation, et les facteurs pr
é
sents dans larticle 286.3(1).

[7]

La détermination de la peine est une t
â
che hautement individualisée. À la lumière
    du lourd casier judiciaire de lappelant, la juge a conclu quil y avait risque
    de récidive élevé. La juge a déterminé une peine juste et appropriée compte
    tenu des circonstances des infractions et de lappelant. Il n
y a pas de
    raison dintervenir en lespèce.

[8]

La demande dautorisation pour interjeter appel
    contre la peine est accord
é
e,
    mais lappel est rejet
é
.

« Paul Rouleau j.c.a. »

«
    Alexandra Hoy j.c.a. »

« K.
    van Rensburg j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2021 ONCA 257

DATE: 20210427

DOCKET: C67790

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maxwell Johnson

Appellant

Jill R. Presser and David Levy, for the
    appellant

Tracy Kozlowski, for the respondent

Heard: March 25, 2021 by video
    conference

On appeal from the sentence imposed on December
    6, 2019 by Justice Kelly P. Byrne of the Superior Court of Justice.

Hoy J.A.:

[1]

Mr. Johnson was convicted of trafficking cocaine, possession of
    marijuana for the purpose of trafficking, and possession of proceeds of crime
    exceeding $5000. He was sentenced to six months imprisonment on each count, to
    be served concurrently, less credit for pre-trial custody, followed by one year
    of probation.

[2]

He seeks leave to appeal the sentence imposed. For the reasons that
    follow, I would grant leave to appeal the sentence, allow the appeal, and
    substitute a six-month conditional sentence on each count, to be served
    concurrently, followed by one year of probation.

Background

[3]

In January 2014, two young women ended a night of partying and using
    drugs at an impromptu gathering at Mr. Johnsons apartment. Mr. Johnson was 27
    years of age at the time. At the womens request, he shared a small amount of
    cocaine with them. They did not pay for the cocaine.

[4]

The women slept at his apartment, as did his friends Rene Jean Moneus
    and Nicolas Adeyemi. In the early hours of the morning, the women were
    unconscious and non-responsive. Mr. Johnson frantically sought help and they
    were rushed to the hospital. Mr. Adeyemi fled.

[5]

Tragically, one of the women died as a result of combined heroin and
    ethanol toxicity. The other, whose adverse reaction was also caused by
    ingesting heroin, recovered.

[6]

Mr. Johnson was panicked and scared. He did not tell the EMS responders
    about any drug use and, when first questioned by police, did not mention that
    the women had ingested cocaine. However, a short time later Mr. Johnson
    provided a video statement to police and admitted giving the women marijuana
    and a small amount of cocaine. He also told them he had marijuana at his
    apartment and directed them to where they would find it. The police searched
    Mr. Johnsons apartment. They found 800 grams of marijuana, two and one-half
    grams of heroin, the remnants of a small quantity of cocaine, and $2,000 in
    cash.

[7]

The police also found approximately $54,830 which Mr. Johnson had hidden
    in the trunk of Mr. Moneus car before giving his video statement to the police,
    in the hope that the police would not find it and take it. Mr. Johnson admitted
    at trial that this was money he had saved over the three years he had been
    selling marijuana.

[8]

Mr. Johnson consented to the forfeiture of the $56,830 found by the
    police.

[9]

Mr. Johnson was charged with several offences, including possession of
    heroin for the purpose of trafficking, and manslaughter. He pled not guilty to
    all counts but, at the conclusion of the Crowns case, he conceded that the
    Crown had met its onus on the offences of trafficking cocaine, possession of
    marijuana for the purpose of trafficking, and possession of proceeds. He
    candidly admitted that he started selling marijuana in 2011 to supplement his
    income. However, he testified that he neither dealt nor used heroin and had no
    knowledge of heroin in his apartment.

[10]

The
    trial judge was left in a state of reasonable doubt by Mr. Johnsons evidence
    that he had no knowledge of the heroin in his apartment and she acquitted him
    of the charge of possession of heroin for the purpose of trafficking. The trial
    judge considered that, possibly, the heroin belonged to Mr. Adeyemi. She was
    also left in a state of reasonable doubt on the manslaughter charge. She was
    not convinced that the heroin found in Mr. Johnsons apartment, which was not
    in a form readily consumable by snorting, had any nexus to the heroin ingested
    by the two women.

Sentencing submissions

[11]

The Crown sought a global sentence of 12 months imprisonment (6 months
    for trafficking cocaine, plus 6 months for possession of marijuana for the
    purpose of trafficking and 6 months for possession of proceeds, to be served
    concurrently, but consecutive to the sentence for trafficking in cocaine),
    followed by probation.

[12]

The
    Crown noted that a conditional sentence was not available for trafficking in
    cocaine, and, typically, a custodial sentence was imposed.

[13]

Citing
R. v. Woolcock
, [2002]
    O.J. No. 4927 (C.A.), and
R. v. Butters
, 2017
    ONCA 973, the Crown submitted that the range for this offence was six months to
    two years, less a day, with
one-off transactions involving
    small amounts of cocaine, other mitigating factors and rehabilitation prospects
    at the low end, and transactions involving larger quantities of narcotics,
    where the offender has a criminal record, at the higher end.

[14]

The
    defence submitted that: faced with the unavailability of conditional sentences,
    in exceptional circumstances courts had ordered non-custodial dispositions,
    by way of a suspended sentence, for trafficking in cocaine; that these were
    exceptional circumstances; and that Mr. Johnson should receive a 12 month
    suspended sentence and one years probation for the cocaine trafficking charge.
    The defence further argued that the trial judge should order conditional
    discharges for proceeds of crime and possession of marijuana for the purpose of
    trafficking. The defence also submitted that Mr. Johnson should receive
Downes
credit for his time on bail, if sentenced to a
    jail term.

[15]

No
    pre-sentence report was prepared. Mr. Johnsons background was conveyed through
    defence counsel at the sentencing hearing.

Reasons for sentence

[16]

In
    her reasons for sentence, the trial judge reviewed Mr. Johnsons personal
    circumstances.

[17]

She
    noted that he was a first offender who was 27 years of age at the time of the
    offences. He was born in Liberia and was an only child who was orphaned at the
    age of 14 because both of his parents had been killed in the Liberian civil war.
    At 16 years of age, he came to Canada as a refugee. He did well, completed high
    school, and trained and worked as a welder. In 2010, he started his own
    business. He started selling marijuana in 2011 to supplement his income as his
    business developed. He was still selling marijuana at the time of the incident
    giving rise to the charges against him but stopped doing so in 2014. By the
    time of sentencing, his business had developed to the point it had over 40
    contracts and employed 36 people. He provided multiple positive character
    references.

[18]

The
    trial judge accepted that Mr. Johnson had changed his life as result of this
    tragedy. He had extracted himself from the club lifestyle and no longer sold
    marijuana or engaged in the consumption of drugs. He had become involved with
    his church community.

[19]

The
    trial judge held that, as a first offender, Mr. Johnson was entitled to the
    most lenient sentence available based on the circumstances. But those
    circumstances included that he had been selling marijuana for three years prior
    to the incident that brought him before the court. In addition to subsidizing
    his business, he had managed to save over $50,000. She reasoned that, [t]he
    mitigation flowing from Mr. Johnsons lack of criminal record must be tempered
    against this backdrop.

[20]

Citing
R. v. Strong
, 2019 ONCA 15, an appeal book
    endorsement in a case involving large scale, prolonged trafficking for profit
    in marijuana, she held that societal and legislative changes since 2014
    regarding marijuana are directed at personal use only and do not warrant a
    reduction in sentence for possession for the purpose of trafficking marijuana,
    which, she indicated, is still considered a serious offence.

[21]

She
    noted that this was a case of social sharing of cocaine but rejected defence
    counsels argument that the circumstances were exceptional and warranted a
    suspended sentence. His sharing of cocaine was not an anomaly in an otherwise
    crime-free life. Mr. Johnson was fully immersed in the illegal selling of
    marijuana. Moreover, while the quantity of cocaine involved was small, cocaine
    is a highly dangerous and insidious drug.

[22]

While
    Mr. Johnson had not pled guilty, he had conceded that he had committed these
    crimes at the close of the Crowns case and this was deserving of significant
    mitigation. It was very much a demonstration of his remorse and willingness
    to accept responsibility for his actions.

[23]

She
    found that Mr. Johnsons compliance with his strict bail conditions for four
    years demonstrated his commitment to a crime-free life but that the conditions
    of his bail at no point caused him undue hardship that would entitle him to a
    Downes credit.

[24]

She
    found the extreme hardship that Mr. Johnson had to overcome deeply compelling
    and was confident that Mr. Johnson could, and would, rehabilitate himself.
    However, it does not override the criminal choices that Mr. Johnson made. It
    is for those choices and those crimes that Mr. Johnson is being sentenced.

[25]

She
    concluded that each of the three offences warranted a minimum of six months
    incarceration. However, considering the principle of totality, Mr. Johnsons
    personal circumstances, and his sincere and demonstrated desire to lead a
    pro-social life, she was persuaded that the sentences should be served
    concurrently to one another. She appreciated that the sentences would normally
    be served consecutively, but this was not a typical case. Mr. Johnson persuaded
    her that he was fully committed to rehabilitating himself and she had every
    confidence he would succeed. As such, he was entitled to the least restrictive
    sentence available.

[26]

She
    gave Mr. Johnson nine days credit for time served and imposed a one-year term
    of probation.

The issues raised on appeal

[27]

Counsel
    for Mr. Johnson argues that the trial judge erred in principle by: (1) applying
    the sentencing range for street level cocaine traffickers when he had just
    shared a small amount of the cocaine he had acquired for personal use with two
    persons on a social occasion; (2) failing to adequately consider that he was a
    relatively youthful first offender; (3) distinguishing his admissions at trial
    from a guilty plea; (4) applying a range appropriate to a large-scale marijuana
    organization or grow-op for the marijuana offences, resulting in a sentence
    that was excessive and demonstrably unfit; and (5) declining to apply
Downes
credit for his time under restrictive bail
    conditions.

Analysis

[28]

I
    conclude that the sentencing judge made two errors in principle which affected
    the sentence imposed.

(1)

The trial judge erred in applying the range in
Woolcock

[29]

I
    agree that the trial judge erred in principle in applying the sentencing range
    in
Woolcock,
urged by the Crown, to this case
    of share trafficking, and that that error had an impact on the sentence
    imposed.

[30]

Mr.
    Woolcock was found in possession of 5.3 grams of crack cocaine. Police had
    received information that Mr. Woolcock was dealing crack cocaine from a
    residence and observed several instances of individuals visiting the residence
    for a short time. One of the individuals observed leaving the residence was
    arrested and found to be in possession of 0.5 grams of cocaine. During a search
    of Mr. Woolcocks residence, the police found 5.3 grams of crack cocaine.

[31]

In
    the context of that case - a case involving selling crack cocaine for profit at
    street level - this court, at para. 15, said that:

The range for this type of offence appears to be 6 months to 2
    years less a dayHowever, many of the cases that fall at the higher end of this
    range involved either larger quantities of narcotics or offences committed
    while the accused was still on probation for a similar offence. Those
    circumstances to not exist here.

[32]

This
    court reduced the sentence imposed by the sentencing judge from two years less
    a day to 15 months.

[33]

In
Butters
, the sentencing judge had imposed a
    sentence of 12 months for a one-off transaction for a very small amount of
    crack cocaine - 0.2 grams - for $20, apparently as a favour for a friend and
    for no profit. This court considered that a sentence of six months, which was
    at the low end of the
Woolcock
range, would
    have been appropriate, but for the immigration consequences of a sentence of six
    months or more. The court reduced the sentence to 160 days.

[34]

As
    counsel for Mr. Johnson submits, this offence was not the type of offence at
    issue in
Woolcock
where crack cocaine was sold
    at street level for a profit. Or even that at issue in
Butters
,
    where, although the transaction was not at a profit, the cocaine was
    nonetheless sold. This was an instance of share trafficking, where a host
    shared cocaine, acquired for his personal use, with guests to his home, who
    were not minors or first-time users, at their request, at no charge, and not as
    part of a business transaction. While the trial judge found the women were regular
    users of cocaine, she did not find they were addicts. It is less morally
    blameworthy than the type of trafficking in
Woolcock
:
R. v. Lloyd
, 2016 SCC 13, [2016] 1 S.C.R. 130,
    at paras. 28, 32. As this court has recently held, the absence of commercial
    motive is a relevant mitigating factor in sentencing for trafficking:
R. v. Spagnola
, 2020 ONCA 638, at para. 2.

[35]

Ranges
    of sentence are only guidelines, and there may well be circumstances where a sentence
    for share trafficking within the range identified in
Woolcock
is appropriate. However, the trial judge did not engage in that analysis. As
    this court has said, it is an error to treat guidelines as constituting a
de facto
minimum sentence:
R. v. Jacko
,
    2010 ONCA 452, 101 O.R. (3d) 1, at para. 82. The trial judges error in
    principle was to accept the range in
Woolcock
as generally applicable to share trafficking.

(2)

The trial judge did not give proper effect to Mr. Johnsons status as a
    first offender

[36]

I
    agree with counsel for Mr. Johnson that the trial judge also erred in principle
    in reducing the weight she accorded to the fact that Mr. Johnson was a
    first-time offender
because
he admitted he had been trafficking in marijuana
    for several years before the incident that brought him before the court. This
    was the first time that Mr. Johnson had been before the court. Aside from the
    charges below, Mr. Johnson had never been charged, let alone convicted, of any
    offences in relation to trafficking marijuana. He was a first offender and was
    entitled to be treated as such for sentencing:
R. v.
    Barclay
, 2018 ONCA 114, at para. 44. Other than his admissions at
    trial, there is no evidence of his involvement in the drug world, as the trial
    judge put it.

[37]

Moreover,
    the evidence before the trial judge did not suggest Mr. Johnsons history
    selling marijuana was relevant to specific deterrence. The trial judge stated
    that she was confident that Mr. Johnson can and will fully rehabilitate
    himself. A criminal record is relevant in sentencing to the extent that it
    rebuts good character and because of what it tells the trial judge and society
    about the need for specific deterrence, the chances of successful
    rehabilitation, and the likelihood of recidivism:
R. v.
    Taylor
(2004)
,
189 O.A.C. 388 (C.A.), at para. 39.

[38]

In
    my view, this error led the trial judge to give undue weight to general
    deterrence and to impose a harsher sentence for all the offences than she
    otherwise would have. Individual deterrence and rehabilitation are the primary
    objectives in sentencing a first offender:
R. v. Priest

(1996), 30 O.R. (3d) 538 (C.A.), at p. 9.

[39]

Given
    this conclusion, it is unnecessary to address Mr. Johnsons further arguments
    that the sentences imposed for the marijuana charges were excessive and that
    his admissions at trial should have been treated as a plea.

(3)

The
Downes
credit

[40]

Finally,
    I see no error in the trial judges conclusion that a
Downes
credit was not appropriate in the circumstances. The decision as to whether to
    give
Downes
credit is a discretionary one:
R. v. Downes

(2006), 79 O.R.
    (3d) 321 (C.A.), at para. 37. And, contrary to counsel for Mr. Johnsons
    assertion, the trial judge explained her reason for declining to give credit:
    the conditions of his bail at no point caused Mr. Johnson undue hardship. He
    was able to continue to work while on bail and after a short period during
    which a relatively strict curfew applied, his curfew was loosened to 11:00 p.m.
    to 6:00 a.m. The trial judges decision is entitled to deference.

(4)

A fit and appropriate sentence

[41]

In
R. v. Sharma
, 2020 ONCA 478, 152 O.R. (3d)
    209, leave to appeal granted, [2020] S.C.C.A. No. 311, this court struck down
    ss. 742(c) and 742(e)(ii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, which eliminated the availability of conditional
    sentences for drug trafficking.

[42]

In
    my view, a six-month conditional sentence of imprisonment for each of the
    charges, to be served in the community, concurrently, and followed by one year
    of probation, is a fit sentence, having regard to all the circumstances of the
    offence and the offender. Indeed, had this option been available to the trial
    judge, I suspect she would have availed herself of it. This will permit Mr.
    Johnson to continue the productive and pro-social life that he has built over
    the last five years and best ensure the future of the employees of his business
    in this time of wide-scale economic disruption caused by the COVID-19
    pandemic.

Disposition

[43]

I would grant leave to appeal sentence, allow the appeal, quash Mr.
    Johnsons sentence of six months incarceration (concurrent) and impose a
    six-month conditional sentence on each count, to be served concurrently, followed
    by one year of probation. I would order that in addition to the conditions
    which are compulsory pursuant to s. 742.3(1) of the
Criminal
    Code
, during the term of his conditional sentence the conditions in
    paragraphs 6, 9, 11, 12 and 13-19 of the Release Order of van Rensburg J.A.
    dated March 10, 2021 shall apply and the appellant shall not change his address
    without the prior approval of his supervisor.

Released: April 27, 2021 D.W.

Alexandra
    Hoy J.A.

I
    agree. David Watt J.A.

I
    agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kanthasamy, 2021 ONCA 32

DATE: 20210120

DOCKET: C68293

Hoy, Lauwers and Nordheimer
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thirumal Kanthasamy

Appellant

Frank
Addario and Wesley Dutcher-Walls, for the appellant

Holly
Loubert, for the respondent

Heard:
in writing

On appeal from the sentence imposed on September
6, 2016 by Justice Michal Fairburn of the Superior Court of Justice.

REASONS FOR DECISION

[1]

On January 17, 2020 this court released its
reasons in appeals advanced by four accused persons arising from a series of tractor
trailer thefts and robberies spanning a period of six months.
[1]
One of those accused was the
appellant, Thirumal Kanthasamy. All four accused appealed their convictions.
Three of the accused also sought leave to appeal their sentences. The appellant
did not. We dismissed the conviction appeals but granted leave to appeal the
sentences and reduced those sentences.

[2]

Subsequent to our decision, the appellant sought
leave to extend the time for leave to appeal his sentence. With the consent of
the Crown, an extension of time was granted.

[3]

The appellant seeks a reduction in his sentence
on two bases. One is that the principle of parity requires a reduction in his
sentence because this court reduced the sentences of his co-accused. The Crown agrees
that such a reduction is appropriate and consents to the appellants sentence
being reduced to six and one-half years from the original sentence of eight and
one-half years.

[4]

The other basis arises from changes in the
appellants personal circumstances in the nearly four years he was on bail
pending appeal, as set out in his fresh evidence application. As a result of
those changes, the appellant seeks a further reduction in his sentence to five
years, or four years after applying the pre-sentence credit of one year awarded
by the trial judge.

[5]

The Crown opposes the introduction of the fresh
evidence on the basis that, if the information had been known at the time of
the original sentencing, it would not have affected the result. In any event,
the Crown says that the fresh evidence, even if accepted, does not justify any
further reduction in the sentence imposed.

[6]

The changes in personal circumstances advanced
by the appellant fall into two categories. One relates to the appellants
health. While there was evidence before the trial judge of some minor health
issues involving the appellant, the appellant now suffers from coronary artery
disease, discovered after a heart attack in 2017. The appellant says that his
time in custody not only increases the consequences of his heart condition,
through stress and alleged delayed access to medications, it also makes him
more susceptible to serious harm should he become infected with COVID-19 while
he is incarcerated.

[7]

The other category relates to the appellants
family situation. The appellant has two children with his estranged wife and a
third with his current common law partner. He also acts as a father figure to
his common law partners son from a previous relationship. Since he was
sentenced, the appellants daughter with his estranged wife has been diagnosed
with cerebral palsy. She requires frequent therapy, which necessitates
assistance from family members and costs money. As a result of his incarceration,
the appellants family is deprived of his assistance in coordinating the
therapy, and of the income he generated to defray the costs of treatment. Also,
since he was sentenced, the appellants common law partner ceased working and
is on long term medical disability at 60% of her former salary. This makes the
loss of the appellants income even more difficult for his common law partner
and the children they share. Further, as a result of his incarceration, the
appellant is unable to support his common law partner as she struggles with her
medical issues.

[8]

We would accept the fresh evidence. It cannot be
said with certainty that this evidence might not have affected the result if it
had been known at the time of sentencing.

[9]

That said, while collateral consequences can
properly impact the sentence imposed, the sentence that is ultimately imposed must
still be proportionate to the gravity of the offence and the degree of
responsibility of the offender:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R.
739, at para. 14. The three tractor trailer thefts and robberies of which the
appellant was convicted involved the use of what was either a real or imitation
firearm. In our view, a sentence of less than the six and one-half years
consented to by the Crown would not be proportionate to the gravity of the
offences and to the degree of the appellants responsibility.

[10]

Accordingly, we grant leave to appeal sentence,
allow the appeal, and reduce the sentence to six and one-half years (prior to
the credit for pre-sentence custody).

[11]

Before concluding, we note that it is open to
the appellant to seek early parole from the Parole Board of Canada, which has
express statutory authority under the
Corrections and Conditional Release
Act
, S.C. 1992, c. 20, s. 121(1), to grant early parole to an inmate who
is suffering from exceptional circumstances.

Alexandra
Hoy J.A.

P.
Lauwers J.A.

I.V.B.
Nordheimer J.A.

[1]

R. v. Kanthasamy
, 2020
ONCA 25, 149 O.R. (3d) 409, reported as
R.
v. Baskaran
.


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. 1

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ke, 2021 ONCA 179

DATE: 20210322

DOCKET: M52115 (C66543) & C66543

Fairburn A.C.J.O., Watt and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant/Moving Party

and

Hongbo Ke

Respondent/Responding Party

Philippe G. Cowle, for the appellant/moving
    party

No one appearing for the
    respondent/responding party

Heard: January 29, 2021
by video conference

On appeal from the order staying the
    proceedings by Justice Joyce L. Pelletier of the Ontario Court of Justice, dated
    January 15, 2019.

Watt J.A.:

[1]

Whats the remedy for a witness not attending
    for their cross-examination?", the trial judge asked. Defence counsel
    suggested that the charges be stayed. The Crown proposed a material witness
    warrant and a brief adjournment.

[2]

I'm granting a stay of proceedings" the trial
    judge announced. And so she did.

[3]

The Crown appeals.

[4]

These reasons explain why I would allow the
    appeal, set aside the stay, and order a new trial before a different judge of
    the trial court.

The Background Facts

[5]

Hongbo Ke (the respondent) was charged in an Information
    with a single count of sexual assault. The Crown elected to proceed by
    indictment. After an initial election of trial before a judge of the Superior
    Court of Justice and a request for a preliminary inquiry, the respondent re-elected
    trial before a judge of the Ontario Court of Justice.

The First Day of Trial

[6]

Trial proceedings began on August 29, 2018. The Crown
    had previously filed an application for an adjournment. Three essential
    witnesses were not available. The Crown explained that she proposed to adduce
    the evidence of the complainant on the scheduled hearing dates. If the
    adjournment were granted, the case could be completed with the evidence of the
    then unavailable witnesses.

[7]

The trial judge did not rule on the Crown's application
    for an adjournment. The Crown had only recently disclosed video statements of
    the complainant in related investigations. Both Crown and defence counsel asked
    for some time to review those statements. The trial judge acceded to the joint request.
    The proceedings were adjourned to the following day.

The Second Day of Trial

[8]

On August 30, 2018, the complainant testified
    with the assistance of an interpreter. Crown counsel completed her
    examination-in-chief of the complainant.

[9]

Defence counsel resisted commencing his
    cross-examination the following day. His cross-examination, he anticipated,
    would exceed one day in length. He did not want the cross-examination
    interrupted by a lengthy adjournment. The trial judge agreed.

[10]

The parties explored continuation dates. The
    trial judge adjourned the proceedings to January 15-17 and February 12, 2019.
    She instructed the complainant to return on January 15, 2019. The complainant
    agreed to do so.

The Subpoena

[11]

About two months before the scheduled return date,
    the complainant was personally served with a subpoena requiring her to return
    to the trial court on January 15, 2019.

The Trial Resumes

[12]

When trial proceedings resumed on January 15,
    2019, the complainant did not appear. Crown counsel explained that when staff
    in the Crown Attorneys office spoke to the complainant late the previous day,
    they learned, for the first time, that the complainant would be flying out of
    Canada on January 15, 2019. She was attending China for a medical reason. She
    would not be available to resume her testimony as scheduled. Staff in the Crown
    Attorney's office asked the complainant to send them her travel information.
    The complainant had not done so by the following morning.

[13]

The trial Crown did not learn until the return
    date of January 15, 2019 that the complainant had sent an email to the Victim
    Witness Assistance Program in the place of trial on November 2, 2018. In that
    email, the complainant explained her travel plans on January 15, 2019 and asked
    that the scheduled appearance be postponed. The email had been diverted to a
    junk mail folder and was not discovered until January 15, 2019.

The Position of the Crown

[14]

The trial Crown sought a brief adjournment of
    one or two weeks to permit the complainant to re-attend to complete her
    evidence. On the already scheduled dates, the Crown proposed to elicit evidence
    from the remaining witnesses to complete the case for the Crown, but for the
    cross-examination and re-examination of the complainant.

[15]

The trial Crown pointed out that the complainant
    had testified in-chief for about three hours. She had never communicated any
    unwillingness to continue with her evidence or the prosecution. She had
    explained well in advance of the return date her absence and the reason for it.
    The complainant was a student, new to Canada, and unfamiliar with the workings
    of our legal system.

The Defence Position

[16]

The trial judge asked defence counsel:

What's the remedy for a witness not attending
    for their cross-examination?

[17]

Defence counsel responded with a stay of
    proceedings. He sought a stay on three grounds:

i.

compromise of trial fairness;

ii.

disbelief of the complainant's explanation; and

iii.

the torturous conditions" in which the
    respondent had lived while the proceedings remained outstanding.

The Ruling of the Trial Judge

[18]

Neither the Crown nor the defence adduced any
    evidence on any aspect of the issue. No authorities were collected. None were
    proffered. The trial judge did not retire to consider what to do. She simply
    announced:

I'm going to grant the stay. The proceedings
    against Mr. Hongbo Ke, information 173947, because [the complainant] has not
    attended for her cross-examination on a trial that was commenced August 30
th
,
    2018 and in the face of a subpoena leaves the country the day before she's
    scheduled to attend for trial is, is actually most prejudicial, in my view, to
    her cause in terms of granting an adjournment for this trial. I just, Im of
    the opinion that it was, she completely ignored the subpoena and left the
    country to avoid attending for her cross-examination.

[19]

A short time later, the trial judge returned to
    the courtroom. She added:

Sorry, in my upset and focused on the
    recognizance I, I didn't endorse the information. So I'm a little, I'm going to
    need some advice from counsel in terms of am I entering a not guilty finding and
    a stay? It's just a stay of the proceedings.

The Appellate Proceedings

[20]

On February 11, 2019, after personally serving
    the respondent, the Crown filed a notice of appeal against the trial judge's
    order staying proceedings against the respondent.

[21]

Two days later, the respondent emailed the Crown.
    He expressed hope that the Crown would reconsider pursuit of its appeal. The
    respondent was doubtful that he would be able to retain counsel. He suggested
    he would represent himself on the appeal.

[22]

About a month later, the Crown advised the
    respondent of its intention to pursue the appeal whether the respondent had
    counsel or represented himself. The Crown underscored the importance of the
    respondent keeping the court and Crown aware of his address and contact
    information.

[23]

Within days of the Crown's communication of its
    intention to pursue the appeal, the respondent retained counsel.

[24]

On December 12, 2019, the Crown perfected its
    appeal. The court listed the appeal for argument on May 22, 2020.

The Appeal is Relisted

[25]

When COVID-19 intervened, the court asked the
    parties whether the appeal could proceed in writing. Subsequent exchanges
    revealed that counsel for the respondent was having difficulty reaching his
    client to obtain instructions. Despite counsel's repeated efforts through
    several different channels of communication, this difficulty persisted. In late
    August 2020, counsel applied to be removed from the record as solicitor of
    record for the respondent. The order was granted.

[26]

The appeal was relisted for argument on January
    29, 2021. Notice about the time and manner of the hearing was sent to the
    respondent's most recent addresses. He was advised of the time of the remote
    hearing. He was furnished with details about how he could participate in it.
    The Crown received no response. The court received no response.

The Motion for Directions

[27]

As a result of the respondent's failure to
    answer any requests to participate in person or by counsel to the appeal, the Crown
    filed a notice of motion returnable on the date set for the hearing of the
    appeal. In that motion, the Crown sought a direction under r. 19 of the
Criminal
    Appeal Rules
, S.I./93-169
that
    the appeal be heard in the absence of the respondent.

[28]

We heard submissions from the Crown on the
    motion. After retiring briefly, we advised Crown counsel that we would grant
    the motion with reasons to follow and proceed to hear the appeal on its merits.
    At the conclusion of that argument, we reserved our decision on the merits of
    the appeal.

[29]

In the reasons that follow, I will explain first
    why I consider this an appropriate case in which to proceed in the absence of
    any participation by the respondent. Then, I will turn to an assessment of the
    merits of the appeal.

Disposition of the Motion

[30]

In my respectful view, the interests of justice
    warrant an order that the appeal be heard in the absence of any participation
    by the respondent.

[31]

The trial proceedings with which we are
    concerned originate in allegations of serious sexual offences against a
    vulnerable complainant. The accusations were of four separate incidents on
    different days. Two of those incidents involved non-consensual unprotected
    sexual intercourse. The complainant also described continued surveillance of
    her daily activities by the respondent. The sexual contact had been initiated
    by the respondent almost immediately after the complainant's arrival in Canada.

[32]

The order under appeal was made when the Crown
    sought a brief adjournment after learning the previous day of the
    unavailability of the complainant to complete her evidence. Other witnesses
    were available. The Crown proposed to elicit its evidence leaving only the
    remaining portion of the complainant's testimony to complete the case for the Crown.
    There was no evidence before the trial judge that the complainant no longer
    wished to participate in the trial process. Or that she wished to abandon her
    allegations of serious sexual misconduct by the respondent.

[33]

It is well-established that entry of a stay of
    proceedings is a remedy reserved for the clearest of cases". It is not a
    typical response to an application for a brief adjournment because a material
    witness has failed to reappear four and one-half months after she first
    testified. Typical or otherwise, a review of the circumstances surrounding its
    entry in this case reveal that the appeal has substantial merit.

[34]

The appeal in this case was initiated within 30
    days of the entry of the stay. The respondent was served personally. He
    received not only the notice of appeal, but also a substantial set of materials
    explaining his obligations and available options for representation as the
    respondent. The Crown made it clear to the respondent from the outset that the
    appeal would be pursued whether the respondent participated or declined to do
    so.

[35]

At one point, the respondent suggested that he
    would be self-represented. Later, he retained counsel. Despite counsel's
    repeated efforts to maintain contact and obtain instructions, the respondent
    did not reply. Counsel was removed from the record. Repeated communications
    from the Crown about scheduling and how the respondent could participate in the
    appeal, including details about the hearing, went unanswered. The respondent
    has returned to China, thus is not amenable to the process of this court. The
    only reasonable inference is that he no longer wishes to participate in this
    appeal.

[36]

In the result, I am satisfied that this is a
    case in which we should determine the merits of the appeal despite the lack of
    participation by the respondent.

The Appeal

[37]

The Crown advances four grounds of appeal. None
    require a canvass of the evidence adduced at trial. Brief reference to some
    aspects of the proceedings that led to entry of the stay is sufficient.

The Grounds of Appeal

[38]

The Crown says that the trial judge erred:

i.

by failing to exercise her discretion judicially
    in denying the Crown's request for a brief adjournment of trial proceedings;

ii.

by staying the proceedings in breach of the
    rules of natural justice;

iii.

by failing to provide reasons sufficient to
    permit meaningful appellate review; and

iv.

by staying the proceedings in the absence of any
    evidence warranting such an order.

[39]

This appeal falls within s. 676(1)(c) of the
Criminal
    Code
, R.S.C., 1985, c. C-46
.
    Unlike a Crown appeal from acquittal under s. 676(1)(a) of the
Criminal
    Code
, this appeal from a stay of proceedings entered by a trial court is
    not limited to questions of law alone.

[40]

For discussion purposes, I will collapse the
    grounds of appeal into two. The first focuses on the trial judge's decision to
    refuse the adjournment application made by the Crown. The second relates to the
    remedy provided for the complainant's non-attendance: a stay of proceedings.

Ground #1: Refusal of the Adjournment

[41]

When trial proceedings resumed on January 15,
    2019 after an adjournment of four and one-half months, the Crown sought a brief
    adjournment of one or two weeks so that she could contact the complainant and
    determine her availability to complete her evidence. The Crown had only learned
    that the complainant would not be present the previous day when advised of that
    fact by staff in the Crown Attorney's office.

[42]

The Crown proposed to use the time set aside for
    the continuation of the proceedings to complete the case for the Crown except
    for the conclusion of the complainant's evidence. In fact, the complainant had
    advised the Victim Witness Assistance Program two and one-half months earlier
    of her scheduling conflict, but her email was diverted to a junk mail folder
    and only located the morning the trial was scheduled to resume. The complainant
    had been re-served with a subpoena. Nothing in the record suggested that the
    complainant would not subsequently appear or that she no longer wished to
    participate in trial proceedings.

[43]

The trial judge asked defence counsel about the
    remedy for the failure of a witness to attend for cross-examination. Counsel proposed
    a stay of proceedings. The Crown, when asked, sought a material witness warrant
    and a brief adjournment of proceedings to determine the complainant's
    availability after the Crown's case was otherwise completed.

[44]

The trial judge did not invite further
    submissions. She did not retire to consider her decision. She refused to issue
    a material witness warrant and concluded that the complainant left the country
    to avoid attending for her cross-examination". The trial judge also cited
    the very difficult, difficult circumstances" of the appellant's release
    as an emotionally torturous" experience. She expressed her upset"
    at what had happened.

[45]

The trial judge dismissed the Crown's proposed
    remedies and entered a stay of proceedings.

The Arguments on Appeal

[46]

The appellant contends that the trial judge
    erred in failing to grant the Crown's request for a brief adjournment when the
    complainant failed to re-attend. The trial judge's decision was based on
    factual findings that were devoid of any evidentiary foundation and lacked any principled
    basis.

[47]

The Crown readily accepts that trial judges have
    a wide discretion in determining whether to grant or refuse an adjournment
    request. Likewise, their exercise of that discretion is subject to considerable
    deference on appeal. But that deference, the Crown says, gives way when the
    discretion is exercised unreasonably, or when its exercise is flawed by legal
    error. Both occurred here.

[48]

In this case, the Crown continues, the trial
    judge failed to consider, much less apply, the factors articulated by the Supreme
    Court of Canada 65 years ago in
Darville v. The Queen
(1956), 116 C.C.C.
    113 (S.C.C.) when an adjournment is sought because a material witness has
    failed to attend. The trial judge failed to provide the trial Crown with the
    opportunity to demonstrate satisfaction of the
Darville
requirements.
    This failure, in both its aspects, amounted to legal error.

[49]

What is more, the appellant argues, the decision
    was unreasonable.

[50]

The trial judge based her conclusion on two
    findings of fact. First, she concluded that the circumstances of the
    respondent's release were very difficult. She adopted, as her own, the torturous"
    characterization advanced by defence counsel. Second, she found that the
    complainant used her medical reason as an excuse to mask her true purpose  to
    avoid cross-examination.

[51]

Neither of these findings had any evidentiary
    support. Beyond defence counsel's statement about the respondents travails on
    release, the record is bankrupt of any evidentiary support for the
    characterization adopted by the trial judge. And there was not a scintilla of
    evidence to support the finding that the complainant was absent because she
    sought to avoid cross-examination. The complainant made no effort to avoid
    re-service of the subpoena. She was unfamiliar with Canada's legal system and
    had communicated her conflict over two and one-half months earlier.

The Governing Principles

[52]

Section 571 of the
Criminal Code
permits
    a provincial court judge acting under Part XIX to adjourn a trial from time to
    time until the trial is finally terminated. Like other adjournment provisions
    in the
Criminal Code
, such as ss. 537(1)(a) and 645(2), s. 571
    contains no exhaustive or illustrative list of factors the judge is required or
    entitled to consider in determining whether to grant or refuse an adjournment.

[53]

In
Darville
, at p. 117, the Supreme
    Court of Canada identified three factors for a court to consider in determining
    whether to grant an adjournment required to procure the attendance of a
    material witness:

i.

that the absent witness is a
material
witness in the case;

ii.

that the party requesting the adjournment has
    not been guilty of laches or neglect in failing to endeavour to procure the
    witness attendance; and

iii.

that there is a reasonable expectation that the
    witness' attendance can be procured at the future time to which the party
    proposes the trial be adjourned.

See also
R. v. G. (J.C.)

(2004), 189 C.C.C. (3d) 1 (Que. C.A.), at para.
10, leave to appeal refused, [2004] C.S.C.R. No. 456.

[54]

To refuse an adjournment without giving the
    requesting party the opportunity to demonstrate satisfaction of the relevant
    criteria is an error of law:
Darville
, at p. 117;
G. (J.C.)
,
    at para. 11.

The Principles Applied

[55]

I would give effect to this ground of appeal. In
    my respectful view, the trial judges decision to refuse the adjournment
    request was at once legally flawed and patently unreasonable.

[56]

In this case, the trial judge was faced with a
    request from the Crown for a brief adjournment so that the complainant could be
    contacted about her availability to complete her testimony. The Crown proposed
    completing her case but for the balance of the complainant's evidence in the
    days that had already been set aside to conclude the trial. The proceedings had
    been adjourned earlier at the request of defence counsel, who had refused to
    begin his cross-examination of the complainant when she had completed her
    evidence in-chief.

[57]

Decisions on applications for an adjournment
    involve the exercise of judicial discretion. They require consideration of
all
the circumstances to determine what is in the best interests of the
    administration of justice. The exercise of discretion must be principled. It
    must be firmly grounded in the circumstances disclosed in the case at hand. The
    interests of justice are a joint venture, not a sole proprietorship. They are
    not for the sole use of one party to the exclusion of the other.

[58]

In this case, the Crown's request for a brief
    adjournment was based on the absence of a material witness who had already
    testified in-chief. The controlling principles for the exercise of that
    discretion were those of
Darville
. It was an error of law for the
    trial judge to dismiss the adjournment request without providing the Crown with
    an opportunity to demonstrate that it had met the requirements of
Darville
.
    And it was equally an error not to consider those principles.

[59]

The complainant was a material witness. She had
    given evidence of a series of sexual assaults by the respondent over several
    days. The allegations included two events of non-consensual unprotected sexual
    intercourse. The complainant was new to Canada, unfamiliar with our legal
    system, a student intending to pursue a graduate degree. She had communicated
    her scheduling conflict to the Victim Witness Assistance Program two and
    one-half months earlier. That her communication was directed to junk mail was
    scarcely her fault.

[60]

The complainant had been advised by the trial
    judge of her obligation to return when trial proceedings were scheduled to
    resume four and one-half months after she had completed her examination in-chief.
    She agreed. She was re-served with a subpoena two months before the scheduled
    return date. The Crown contacted her the day before her scheduled re-appearance
    and only learned then of her plan to leave Canada on the return date for a medical
    reason. The Crown asked for a copy of her travel itinerary, but she had not
    provided it by the return date. In hindsight, the Crown should have contacted
    the complainant earlier about her re-attendance. But its failure to do so could
    scarcely be described as laches or neglect.

[61]

The record reveals no basis for an inference
    that the complainant's absence was permanent. The reason advanced for the
    absence  a medical reason  was not suggestive of any permanence. The
    complainant was new to Canada and attending graduate school at a Canadian
    university. She had already given evidence over an entire day. There was no
    basis to conclude that she would not re-attend to complete her testimony. At
    the very least, a brief adjournment would have enabled the Crown to confirm the
    complainant's position. If she made it clear that she had no intention of
    reappearing, the respondent would be the beneficiary of the adjournment.

[62]

In addition to the legal errors I have just
    identified, I am also satisfied that the trial judges decision to refuse the Crown's
    adjournment request was unreasonable.

[63]

The trial judge made two findings of fact that
    were the linchpins in her decision to refuse the adjournment and enter a stay
    of proceedings. She found, as defence counsel had submitted, that the
    respondent had been subjected to torturous" bail conditions and she
    concluded that the complainant's explanation for her absence  a medical reason
     was an excuse to mask her true reason  to avoid cross-examination.

[64]

In my respectful view, neither finding is
    supported on the record of the proceedings.

[65]

With respect to the first finding, the
    respondent appears to have been released on his own recognizance on the day of
    his arrest. The conditions in his recognizance are typical of those routinely
    included in cases of this nature. The only differences appear to be in the
    requirements that he deposit his passport and wear a monitoring device. The monitoring
    device was ordered removed by the trial judge on August 31, 2018. The
    respondent was not subject to house arrest or a curfew. Nor was he detained in
    custody. Trial proceedings were timely, the four and one-half month adjournment
    at his counsel's request.

[66]

The second finding  that the complainant
    claimed a medical reason to avoid cross-examination  also finds no support in
    the evidence. The complainant advised the Victim Witness Assistance Program of
    her conflict two and one-half months before the return date. She accepted
    service of a subpoena two weeks later. She was unfamiliar with our criminal
    justice system. When contacted by the Crown the day before the return date and
    her departure, there was no suggestion that she would not reappear. It would
    have been preferable for her to have provided her travel itinerary, as
    requested by the Crown, but her failure to do so cannot support the conclusion
    drawn by the trial judge.

[67]

On this basis alone, I would set aside the stay
    and order a new trial.

Ground #2: Entry of a Stay of Proceedings

[68]

The second ground of appeal alleges error in the
    entry of a stay of proceedings as the remedy for the failure of the complainant
    to re-attend the trial proceedings to complete her testimony.

[69]

The circumstances in which the stay was entered
    have already been canvassed and need not be repeated. A brief reference to the
    arguments advanced by the appellant will provide a suitable frame for the
    discussion that follows.

The Arguments on Appeal

[70]

The appellant says that a stay of proceedings is
    an extreme remedy, reserved for the clearest of cases. Its entry in this case
    frustrated the truth-seeking process and deprived the complainant and the
    public of a trial and an adjudication on the merits. It is tantamount to an
    acquittal without a trial.

[71]

In this case, the appellant continues, the
    proceedings that culminated in entry of the stay were procedurally unfair,
    lacking in the essentials of natural justice. The Crown received no meaningful
    notice of the application for a stay of proceedings and was not afforded any
    meaningful opportunity to respond to the legal arguments or factual assertions
    put forward in support of the application by defence counsel.

[72]

The appellant points to another aspect of
    procedural fairness as lacking in these proceedings, one that, in its view,
    amounts to reversible error. The trial judge failed to provide reasons
    sufficient to permit meaningful appellate review of her decision to stay
    proceedings. Read as a whole, in light of the circumstances before her, the
    positions of the parties, and the issues in play, the reasons do not reveal
    that the trial judge seized the substance of what was before her. She gave no
    reasons for making adverse findings against the complainant and adopted,
    without more, the emotive language of defence counsel. What was said is unrevealing
    of any consideration of less drastic remedies than a stay of proceedings, or of
    the basis for entry of the stay.

[73]

At all events, the appellant submits, the
    circumstances of this case fall well short of what is required to warrant a
    stay of proceedings. This was not the clearest of cases. There was no evidence
    of any prosecutorial misconduct. The proceedings were timely. Nothing done or
    omitted compromised the respondent's right to make full answer and defence. If
    any prejudice resulted from the complainant's failure to re-attend on the
    resumption of trial proceedings, alternative remedies were available.
    Completion of the balance of the case for the Crown. A brief adjournment to
    determine the complainant's availability to re-attend. And if she were
    unwilling or failed to attend, striking her evidence from the case for the Crown.
    A fair trial remained viable. But the trial judge failed to engage in any
    balancing of the interests, as the authorities governing stays of proceedings
    require.

The Governing Principles

[74]

A stay of proceedings is the most drastic remedy
    a criminal court can order. This is so because it halts the prosecution of an
    accused. A stay of proceedings frustrates the truth-seeking function of a
    criminal trial. It deprives the public of the opportunity to see justice done
    on the merits. Victims of crime are deprived of their day in court:
R. v.
    Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30, citing
R. v.
    Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53.

[75]

However, courts recognize that there are some
    cases in which a stay of proceedings for an abuse of process will be warranted.
    These cases are rare. It is only the clearest of cases when a stay of
    proceedings will be warranted:
Babos
, at para. 31, citing
R. v.
    O'Connor
, [1995] 4 S.C.R. 411, at para. 68. At bottom, each assertion of
    an abuse of process, thus each claim for a stay of proceedings, is rooted in
    state conduct.

[76]

In general, stays of proceedings for an abuse of
    process will be warranted in two categories of cases:

i.

where the state conduct compromises the fairness
    of an accused's trial (the main category); and

ii.

where the state conduct creates no threat to
    trial fairness but risks undermining the judicial process (the residual
    category).

See
Babos
, at para. 31,
    citing
O'Connor
, at para. 73.

[77]

The test to determine whether a stay of
    proceedings should be entered is the same for both categories. It consists of
    three requirements:

i.

prejudice to an accuseds right to a fair trial,
    or the integrity of the justice system that will be manifested, perpetuated, or
    aggravated through the conduct of the trial or its outcome (the
prejudice
element);

ii.

absence
of an
alternative

remedy
capable of redressing the prejudice (the
remedy
element); and

iii.

in cases of uncertainty after consideration of
    elements i and ii, an assessment of the
balance
between the interests
    favouring entry of a stay, such as denouncing misconduct and preserving the
    integrity of the justice system, against society's interest in a final decision
    on the merits (the
balancing
element).

See
Babos
, at para. 32,
    citing
Regan
, at paras. 54, 57. See also
Canada (Minister of Citizenship
    and Immigration) v. Tobiass
, [1997] 3 S.C.R. 391, at paras. 91-92.

[78]

For cases in the main category, the question
    involved in the
prejudice
element is whether the accused's right to a
    fair trial has been prejudiced by the state conduct and whether that prejudice
    will be carried forward through the conduct of the trial. The focus is on
    whether there is
ongoing
unfairness to the accused:
Babos
, at
    para. 34.

[79]

For cases in the residual category, the
prejudice
element is concerned with whether the state conduct, usually but not always
    misconduct, offends societal notions of fair play and decency and whether
    proceeding with a trial in the face of that conduct would harm the integrity of
    the justice system:
Babos
, at paras. 35, 37;
Tobiass
, at para.
    91.

[80]

In connection with the
remedy
element,
    the question is whether some remedy short of a stay is capable of redressing
    the prejudice. The spectrum of available remedies depends on the nature of the
    prejudice involved. Where the main category is implicated, with its concern
    about trial fairness, the focus is on restitution of an accused's right to a
    fair trial. For the residual category, where the claim has to do with prejudice
    to the integrity of the justice system, the focus is on whether something less
    than a stay will adequately dissociate the justice system from the state
    conduct going forward:
Babos
, at para. 39.

[81]

The
balancing
element assumes added
    importance for cases that invoke the residual category. The task of the court
    is to decide which of two options better protects the integrity of the justice
    system: staying the proceedings or having a trial despite the challenged
    conduct. Relevant factors include but are not limited to:

i.

the seriousness of the state conduct;

ii.

the systemic or isolated nature of the conduct;

iii.

the circumstances of the accused;

iv.

the offences charged; and

v.

societys interest in a trial on the merits.

See
Babos
, at para. 41.

[82]

An accused who seeks a stay under the residual
    category faces an onerous burden. This follows from the combined effect of the clearest
    of cases threshold and the balancing of societal interests that must take
    place in such cases. Cases warranting a stay will be exceptional and very
    rare". A stay will be entered only where the affront to fair play and decency
    is disproportionate to societys interest in the effective prosecution of
    criminal cases:
Babos
, at para. 44;
Tobiass
, at para. 91; and
R. v. Conway
, [1989] 1 S.C.R. 1659, at p. 1667.

The Principles Applied

[83]

As I will explain, I would give effect to this
    ground of appeal. Simply put, neither the circumstances of the case nor the
    governing legal principles support entry of a stay of proceedings as the
    appropriate remedy for the complainant's failure to re-attend for the
    resumption of trial proceedings.

[84]

This case does not involve any allegation of
    constitutional infringement. The proceedings were timely. There was no tenable
    allegation of a breach of the right to make full answer and defence. There was
    no reason to conclude that the respondent would not be afforded the opportunity
    to cross-examine the complainant at a later date. Recall that the
    cross-examination could have been commenced on the day following the complainant's
    evidence in-chief, but was delayed by four and one-half months due to the
    respondent's insistence on the grounds of trial fairness. Other witnesses were
    available and sufficient time allotted to complete their evidence. But for the
    intransigence of defence counsel, there was no reason their evidence could not
    have been adduced.

[85]

In the absence of any constitutional
    infringement to ground a claim for the remedy of a stay of proceedings, I turn
    to the availability of the doctrine of abuse of process as a potential source
    for the remedy afforded.

[86]

At bottom, abuse of process involves state
    conduct that compromises the fairness of an accused's trial or risks
    undermining the integrity of the judicial process.

[87]

In this case, it is debatable whether any state
    conduct is implicated.

[88]

The complainant's failure to re-attend can
    scarcely be laid at the feet of the state. She was re-subpoenaed two months
    before the resumption of trial proceedings. She agreed to return at the
    conclusion of her evidence in-chief. There is no suggestion that the state
    colluded in her absence. The trial judge's conclusion that the complainant's
    failure to attend was due to her wish to avoid cross-examination is at best
    tenuous, perhaps better said, speculative.

[89]

The trial judge's eager grasp of defence
    counsel's characterization of the respondent's torturous existence under the
    conditions of his release order moves no freight in the abuse of process
    analysis. The terms of the release were commonplace. No house arrest. No
    curfew. And the electronic monitoring term was removed by the judge herself.

[90]

This was not the clearest of cases as the
    authorities demand for entry of a stay of proceedings. There was no state
    conduct offensive to societal notions of fair play and decency. A witness did
    not show up in accordance with her subpoena. For her own reasons. Sometimes,
    this happens. It shouldnt, but it does. But it is not cause to invoke the most
    drastic of remedies to halt the prosecution. That the judge was displeased  in
    her own words, upset"  affords no basis for a stay of proceedings.

[91]

Other remedies short of a stay of proceedings
    were available. Use the court time to hear the balance of the case for the Crown.
    Direct the Crown to determine the availability of the complainant. Depending on
    the response, reschedule the proceedings. Consider any applications that may
    arise out of the response. If the complainant fails to attend, consider the
    remedy.

[92]

In this case, the trial judge did not apply the
    test that determines whether a stay of proceedings was warranted. Her findings
    of fact about the complainant's motive for failing to attend and the
    respondent's torturous experience are at best tenuous, if not entirely
    speculative. And there was no balancing of interests, as required by
Babos
,
    at para. 41.

[93]

In my view, the stay of proceedings must be set
    aside.

Disposition

[94]

For these reasons, I would allow the appeal, set
    aside the stay of proceedings, and order a new trial to be held before a
    different judge of the trial court.

Released: March 22, 2021 JMF

David Watt J.A.

I agree. Fairburn A.C.J.O.

I agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kennedy, 2021 ONCA 378

DATE: 20210603

DOCKET: C67363

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Kennedy

Appellant

Chris Rudnicki and Angela Chaisson, for
    the appellant

Victoria Rivers, for the respondent

Heard: May 25, 2021 by video
    conference

On appeal from the conviction entered on
    December 6, 2018, by Justice Robert W. Rogerson of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is an appeal against conviction for
    possession of methamphetamine (meth) for the purpose of trafficking. The
    appellant argues that the verdict is unreasonable, and that the trial judge
    erred in admitting and relying on anecdotal evidence of the police expert that
    he had never spoken with anyone who said they had picked up, for personal use,
    an amount of meth in excess of 3. 5 grams (the impugned testimony). Relying
    on
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, the appellant
    argues that the impugned testimony was inadmissible because it was irrelevant,
    unnecessary, and more prejudicial than probative.

[2]

For the reasons that follow, the appeal is
    dismissed.

Background in Brief

[3]

The appellant left a drug house after purchasing
    a single bag of 28 grams of meth for $800. The residence was under police
    surveillance. After leaving the residence, the appellant got into a taxi. He was
    arrested shortly afterwards and taken to the police station. Shortly afterwards,
    the police found the bag of meth hidden between the seat cushions in the back
    of the police cruiser.

[4]

The appellant admitted possession of the drugs. The
    sole issue at trial was whether that possession was for the purpose of
    trafficking.

[5]

After reading in agreed facts, the Crown called
    a single witness  a police officer who was qualified as an expert in the areas
    of pricing and purchasing of crystal meth, and the consumption habits and use
    of crystal meth by people in the community. Defence counsel at trial conceded
    his expertise and that it met the preconditions for threshold admissibility
    relevance and necessity. Trial counsel did not object to any aspect of the
    expert testimony.

[6]

The expert explained that meth is commonly sold
    by point, which is the equivalent of a tenth of a gram. The average cost of 0.1
    grams is ten to twenty dollars. The price range for 28 grams is between $800
    and $1,200. He testified that it was his opinion that the 28 grams of meth the
    appellant possessed was for the purpose of trafficking. When asked by the prosecutor
    why he was of that opinion, the expert gave the impugned testimony. He
    immediately added that there were many reasons why purchasers for personal use bought
    much smaller quantities. He gave three reasons. First, the cost of the drugs in
    issue in this case was around $1,000. A person struggling with addition does
    not generally have that amount of disposable income readily available. Second,
    buying such a quantity leaves the purchaser open to the risk of robbery and
    theft from other addicts. Third, the purchaser of a quantity of this sort is at
    greater risk of being caught by the police.

[7]

The appellant testified on his own behalf. He
    said he was going to use all of the meth himself and not share or sell any of
    it. He was 38 years old at the time and had previously been addicted to meth in
    his twenties. He had been clean for 14 years but relapsed about a year prior to
    his arrest. At the time of his arrest, the appellant was divorced, unemployed,
    addicted to meth, and subsisting on rental payments from tenants  also meth
    users  who shared what had been his family home. He claimed he could easily go
    through a gram of meth a day and could binge for several days at a time. He
    explained that although the tenants in his home were transient and rarely paid
    rent on time, the day before his arrest, for the first time, the tenants had
    paid the full $2,000 in rent. The appellant testified that the dealer had given
    him a pipe and syringe, but these were not found on his person when he was
    arrested.

[8]

The trial judge rejected the appellants
    testimony, finding it was fluid and inconsistent at the best of times. He
    noted discrepancies in the appellants testimony about how he got the money,
    where he got it from, and whether he got it in cash or partly from cheques. He
    found the appellants testimony to be internally and externally inconsistent.

[9]

The trial judge concluded by stating:

The ounce of methamphetamine, which is an
    extremely large amount, as the expert has indicated, and is certainly many
    times what a normal user would buy, is indicative of possession for the
    purposes.

Analysis

[10]

We do not accept that the police expert made a
Sekhon

error. He did not extrapolate from inadmissible anecdotes to impute guilt
    on the part of the Appellant. The expert simply explained that he had never
    encountered anyone who had purchased meth for personal use in quantities beyond
    3.5 grams. His opinion that the appellant possessed the meth for the purpose of
    trafficking was grounded in objective facts: the inherent risks a purchaser
    encounters in possessing such a large quantity, including possible theft from
    other addicts; the tenants in the appellants home were meth addicts; the
    appellants precarious financial situation; and, the significant cost of one
    ounce of meth in the appellants financial circumstances.

[11]

In any event, the trial judge appears not to
    have relied on the impugned evidence: his analysis makes no mention of it.
    Rather, he relied on the reasons the expert had given for why purchasers for
    personal consumption usually bought in much smaller quantities.

[12]

Nor do we accept that the verdict is
    unreasonable. Having rejected the appellants testimony as incredible, the
    trial judge concluded that no reasonable inference other than possession for
    the purpose was available on the evidence. On the appellants own evidence, as
    well as that of the expert, this was a significant quantity of meth. Although
    the appellant had not been under surveillance and the circumstances of his
    arrest lacked other indicia of trafficking, indicia of personal use were also
    lacking. In the absence of an explanation, the trial judge was entitled to draw
    an inference of guilt.

Disposition

[13]

Accordingly, the appeal is dismissed.

Janet Simmons J.A.

E.E. Gillese
    J.A.

Grant Huscroft
    J.A.