WARNING

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

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

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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION:
R. v. L.C.T., 2012 ONCA
116

DATE:  20120222

DOCKET: C51614

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.C.T.

Appellant

Joseph Wilkinson, for the appellant

Peter Scrutton, for the respondent

Heard:  December 15, 2011

On appeal from the convictions entered by
          Justice Harry J. Keenan of the Superior Court of Justice, dated May 18, 2007.

OConnor A.C.J.O.:

[1]

On May 18, 2007, the trial judge convicted the
    appellant of four counts of sexual interference and one count of sexual
    exploitation.
[1]
The appellant was sentenced to five years imprisonment.  He appeals the
    convictions.

[2]

The appellant seeks to introduce fresh evidence
    in support of his position that the complainant was part of a conspiracy to
    frame him.  He also alleges that the assistance of his trial counsel (not Mr.
    Wilkinson) was ineffective, that the interpretation services provided to him at
    trial violated his s. 14
Charter
rights, that the trial judges reasons
    for judgment were insufficient, and that the trial judge erred in his
    assessment of the complainants credibility.

[3]

I would dismiss the appeal.

FACTUAL OVERVIEW

[4]

I provide only a brief overview of the evidence
    here.  I will set out more detail as needed in the course of my discussion of
    the grounds of appeal.

[5]

The complainant, L.T., was 16 when she testified
    at the trial in 2007.  L.T. testified that the appellant, who was her
    stepfather, began sexually abusing her when she was eight or nine years of
    age.  The abuse continued until she was fourteen.  The appellant lived with
    L.T. and her mother during most of the time period during which L.T. alleged
    abuse.

[6]

L.T. recounted various acts of sexual abuse,
    including the appellant touching her chest and genital areas, oral sex, and one
    act of sexual intercourse.  L.T. said she was not good at remembering specific
    times and dates, but placed the abuse in time relative to where she lived over
    the years.

[7]

L.T. first disclosed the abuse to a counselor at
    summer camp in 2005 during a group discussion about families.  The following month,
    she made a video statement to the police describing the abuse.  She adopted the
    contents of the video statement at trial.

[8]

Prior to the disclosure to the camp counselor,
    L.T. repeatedly denied that the appellant had abused her.  She denied the abuse
    to her aunt, her mother, a worker from the Childrens Aid Society, and to a
    lawyer who was defending the appellant on charges of sexual abuse laid by the
    aunt.

[9]

In 2002, the appellant was charged with sexually
    assaulting L.T.s aunt during a time period included in the range over which L.T.
    subsequently alleged abuse.  L.T. told the appellants lawyer that the appellant
    had not abused her.  She agreed to testify to help the appellant at his trial.
    The charges against the appellant with respect to the aunt were eventually withdrawn
    at the request of the Crown.

[10]

In 2002, L.T.s aunt complained to the
    Childrens Aid Society that the appellant was abusing L.T.  In the subsequent
    investigation, L.T. denied the abuse.

[11]

L.T. testified that she did not tell anyone
    about the abuse before 2005 because she was ashamed, because she feared
    breaking the family apart, and also because the appellant had told her not to
    tell anyone.

[12]

L.T.s mother testified at the trial.  She
    described a few incidents involving the appellant and L.T. that she viewed as
    suspicious only with the benefit of hindsight.  She explained her non-intervention
    at the time of the incidents as being a result of her schizophrenia or the fact
    that she trusted the appellant.

[13]

The thrust of the appellants defence at trial was
    that the evidence of L.T. and her mother lacked credibility and reliability.
    The appellant argued that L.T. had been telling the truth when she repeatedly
    denied abuse.  She concocted the allegations against the appellant in 2005 at
    the urging of and in order to assist her aunt.  L.T.s mother was also involved
    in the scheme to falsely accuse the appellant.

[14]

The appellant called an alibi witness relating
    to two of the counts in the indictment.  The witness, who was surety for the
    appellants bail, testified that the appellant was living with him and his wife
    during the time period set out in those two counts.  Thus, the appellant did
    not have the opportunity to commit the abuse alleged during that time period.

[15]

The appellant did not testify.

[16]

The trial judge concluded that L.T. was an
    honest witness.  He accepted L.T.s explanation for failing to disclose the
    abuse prior to 2005.  He found that her inability to recall exact times and
    dates was understandable in light of the time that had elapsed before she
    disclosed the abuse.  The trial judge rejected the appellants submission that
    L.T. was trying to assist her aunt in making the allegations against him.

[17]

Despite accepting L.T.s evidence, the trial
    judge acquitted the appellant on the two counts about which the alibi witness
    testified.  The trial judge had a reasonable doubt with respect to the timing
    of those counts.  However, in acquitting on those counts, the trial judge did
    not express any doubt about L.T.s overall credibility.

ISSUES

[18]

There are five issues:

(i)
Is an audio tape recording made by
    the appellant admissible as fresh evidence?

(ii)
Did the appellants trial counsel
    provide ineffective assistance and thereby cause a miscarriage of justice?

(iii)
Did the interpretation services
    provided to the appellant at trial violate his s. 14
Charter
rights?

(iv)
Were the trial judges reasons for
    judgment insufficient?

(v)
Did the trial judge err in his
    assessment of L.T.s credibility?

Issue #1: The Audio Tape

[19]

The appellant seeks to introduce fresh evidence
    in the form of an audio tape.  He submits that the recording shows that L.T.s
    aunt and mother colluded to fabricate false allegations of sexual abuse against
    the appellant in the past.  This, he argues, supports his position that the
    mothers testimony in this case is unreliable and therefore cannot be used to
    support L.T.s allegations.

[20]

The only evidence with respect to the origin of
    the audio tape comes from the appellant.  In his affidavit on the fresh
    evidence motion, the appellant said the tape was made on June 4, 2003 after his
    arrest on the charge of sexually assaulting L.T.s aunt.  On cross-examination,
    he conceded that the arrest stemming from the aunts charge had happened over a
    year before the tape was recorded, and that the recording had actually happened
    on the day of his arrest on other charges.  The appellants purpose was to
    record an incriminating telephone conversation between L.T.s mother and her
    aunt when he believed they were plotting against him.  He was not present at
    the time the conversations on the tape were recorded.

[21]

The appellant says that the relevant part of the
    tape records one side of a telephone conversation between L.T.s mother and
    some members of her family, including possibly L.T.s aunt.  The voice, which
    the appellant says is that of L.T.s mother, is speaking in Mandarin.  The
    appellant takes the position that the relevant part shows that L.T.s mother is
    conspiring with the unheard persons on the other end of the conversation about
    the time frame during which L.T.s aunt could claim that the appellant sexually
    assaulted her.  It also includes details L.T.s aunt could include in her
    allegations concerning certain identifying marks near the appellants genitals.

[22]

The appellant says that he gave the tape to a
    friend in 2003.  The friend made a copy and gave the original back to the
    appellant.  In 2005, the appellant gave the original back to the friend.

[23]

The appellants trial began on May 7, 2007.  On
    May 16, after the evidence had been completed and closing arguments begun, a
    different friend of the appellants delivered two tapes to the appellants
    trial counsel at the courthouse.  Counsel reviewed the tapes with a Mandarin
    interpreter, came to the conclusion that there was nothing relevant on them,
    and therefore took no steps to ask that the case be reopened.

[24]

Trial counsel gave evidence in connection with
    the appellants allegation of ineffective assistance of counsel.  He said that
    the appellant had told him about a tape in January of 2007.  The appellant had
    told him that it was, in effect, a smoking gun.  Trial counsel said he had
    asked the appellant for the tape during the period leading up to trial but
    nothing materialized until May 16.  In his evidence on the fresh evidence
    motion, the appellant said that he had not discussed the tape with his trial
    counsel before May 16.

[25]

The four-part test for the admission of fresh
    evidence on appeal is set out in
R. v. Palmer
, [1980] 1 S.C.R. 759.  To
    be admitted, the appellant must show that the evidence (1) could not have been
    obtained by due diligence before the trial (though this is not always required
    in the criminal context); (2) is relevant to a decisive or potentially decisive
    issue; (3) is reasonably capable of belief; and (4) if believed, could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result.

[26]

The appellant accepts that the tape could have
    been discovered by reasonable diligence before trial.  He says, however, that
    the lack of diligence should not govern the fresh evidence analysis because it is
    explained by trial counsels incompetence.  He also argues that the failure to
    exercise due diligence should give way to the importance of the tape to the
    result at trial.

[27]

The appellant argues that, if admitted, the tape
    could be used to impeach L.T.s mother by showing that she was involved in an
    earlier conspiracy to wrongly accuse the appellant of sexual assault.  As a
    result, the appellant argues, a court would reject the mothers evidence
    thereby removing any confirmatory evidence with respect to L.T.s complaints of
    abuse.  Thus, the tape could have affected the result at trial.

[28]

I would not admit the tape as fresh evidence.
    In my view, the evidence does not meet the fourth
Palmer
criterion.  The
    appellant has not established that, if believed, the tape and the appellants
    evidence relating to it, could reasonably be expected to have affected the
    result of the case against him.

[29]

Importantly, the tape does not undermine L.T.s
    credibility.  It does not relate to L.T.s complaints of sexual abuse.  According
    to the appellant, the tape was made over two years before L.T. first complained
    of abuse.

[30]

The tape also does not support an argument that
    L.T.s evidence was part of a conspiracy with her mother to frame the
    appellant.  Significantly, there was evidence that when the Childrens Aid
    Society apprehended L.T. on September 6, 2005, L.T.s mother was supportive of
    the appellant, not L.T.

[31]

At best, the tape could have been used to
    cross-examine L.T.s mother and possibly undermine her credibility on the basis
    of an argument that if she conspired in 2003 to frame the appellant on the aunts
    charges, her evidence in L.T.s trial should have been suspect.

[32]

There are two difficulties with this argument.  First,
    the meaning of the conversation on the tape is not clear.  While it may be
    capable of the sinister interpretation urged by the appellant, it is also open
    to a more benign explanation.  It is difficult to know what the impact, if any,
    of cross-examining L.T.s mother on the tape would have been.

[33]

Second, it is not apparent that the trial judge
    relied upon L.T.s mothers evidence in convicting the appellant.  The trial
    judge discussed the mothers evidence and noted that she had testified about
    some examples of nudity and sexual impropriety.  However, the trial judge
    recognized that there were problems with the mothers evidence.

[34]

Importantly, the trial judge made strong and
    clear findings favourable to L.T.s credibility.  He concluded she was a
    truthful and credible witness.  He did not link his finding of credibility to
    support gleaned from the mothers evidence.

[35]

In the result, I would not admit the fresh
    evidence.

Issue #2: Ineffective Assistance of Counsel

[36]

The appellant argues that this court should
    order a new trial because the ineffective assistance provided by his counsel at
    trial may have caused a miscarriage of justice.

[37]

When a claim of ineffective assistance is
    raised, the onus is on the appellant to establish (1) the facts that underpin
    the claim; (2) the incompetence of the assistance provided; and (3) the
    incompetent assistance resulted in a miscarriage of justice:
R. v. G.
    (D.M.)
, 2011 ONCA 343, 105 O.R. (3d) 481, at para. 100;
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 59, leave to appeal to S.C.C.
    refused, [1996] S.C.C.A. No. 347.

[38]

Incompetence is determined by a reasonableness
    standard applied to the particular circumstances of the case:
Joanisse
,
    at pp. 60-61.  Hindsight plays no role in the analysis.  The competence
    assessment must be informed by a presumption in favour of competence.

[39]

In assessing whether there has been a
    miscarriage of justice, an appeal court may consider the impact of the
    incompetence on the reliability of the result or on the fairness of the process
    by which the result was achieved:
Joanisse
, at p. 62.  When an appellant
    alleges that trial counsels incompetence impacted the reliability of the
    result, the appellant must show that there is a reasonable probability that the
    appellant would not have been convicted but for the incompetence.  Put another
    way, a reviewing court must be satisfied that the verdict cannot be taken as a
    reliable assessment of the appellants culpability:
Joanisse
, at pp.
    63-64.

[40]

The appellant relies on four areas where he
    alleges counsel was incompetent.

(a)       The Audio Tape

[41]

The appellant argues that his trial counsel was
    incompetent in the way he addressed the audio tape.  In particular, he alleges
    incompetence because trial counsel (1) failed to take steps to obtain the tape
    before the trial; (2) failed to discuss the content of the tape with the
    appellant after he received it; and (3) failed to apply to re-open the case to
    use the tape at trial.

[42]

I am not satisfied that the appellant has met
    the ineffective assistance test with respect to the tape.

[43]

I do not accept that counsels conduct fell
    below the reasonableness standard in respect of his effort to obtain the tape
    before the trial began.  On trial counsels evidence, the appellant told him
    about the tape approximately four months before the trial.  Counsel
    subsequently asked the appellant for the tape, but the appellant did nothing.  The
    tape only materialized after the appellant called his friend to ask that it be
    delivered to trial counsel.  It is unclear what else counsel could have done to
    expedite this process.

[44]

I am concerned somewhat that once counsel
    received two tapes on May 16, he did not ask the court for time to review them
    with the appellant.  While it was obviously late in the day, such a request
    would have been appropriate and may have led to an application to re-open the
    case to further cross-examine L.T.s mother on the basis of the relevant part
    of one of the tapes.  However, it is by no means clear to me that the appellant
    would have been permitted to have the case re-opened.

[45]

In any event, I do not find it necessary to
    decide whether or not trial counsels handling of the tape on May 16
    constituted ineffective assistance.  Assuming the trial judge had permitted the
    case to be re-opened and counsel to cross-examine L.T.s mother on the tape, I
    do not think there was a reasonable probability that the result at trial would
    have been any different.

[46]

I reach this conclusion for essentially the same
    reasons I concluded that the tape should not be admitted as fresh evidence.

(b)       L.T.s Allegation of Attempted Rape

[47]

L.T. made a video statement to the police on
    September 7, 2005 about the alleged abuse by the appellant.  Towards the end of
    her statement, she mentioned that she had been almost raped by a fellow
    student when she was in grade five.  She said this occurred at school, in public
    and the teachers did nothing about it.

[48]

The appellants trial counsel was of the opinion
    that there would be benefit in cross-examining L.T. about this incident.  He
    reasoned that the allegation was demonstrably false because it was incredible
    that the teachers would have done nothing if they had seen what L.T.
    described.  Trial counsel concluded that his cross-examination could have a devastating
    effect on L.T.s overall credibility.

[49]

The appellant submits that trial counsel was
    incompetent because he did not investigate the truth of L.T.s almost raped claim
    before cross-examining her about it at trial.  The appellant also submits that
    trial counsels cross-examination of L.T. about the incident was ineffective.

[50]

I would not give effect to these arguments.

[51]

The almost raped evidence related to a
    collateral matter.  It had nothing to do with L.T.s allegations against the
    appellant nor did it show a pattern of conduct by L.T. of bringing forward
    false claims about sexual abuse.  She did not complain about the incident until
    she mentioned it at the end of her statement to the police in September 2005.

[52]

Clearly, trial counsel thought about the issue
    with some care.  He considered this courts decision in
R. v. Riley
(1992),
    11 O.R. (3d) 151, and determined he had a basis to cross-examine L.T. about the
    collateral incident.  He decided that the best way to approach the issue was to
    have L.T. adopt the almost raped statement as true and then show that what
    she said was incredible.  In closing argument, he would submit that L.T. had
    lied or seriously exaggerated the incident and was therefore not a credible
    witness.

[53]

Trial counsel cross-examined L.T. on the issue
    without objection.

[54]

In my view, the appellants criticism of trial
    counsel with respect to the almost raped issue is answered by what Doherty
    J.A. said in
Joanisse
.  At p. 61, he pointed out that the reasonableness
    of counsels performance must be measured in the particular circumstances of
    the case at the point in time when counsel acted.  He said:

The wisdom of hindsight has no
    place in this assessment.  This approach also recognizes that in many
    situations counsel will have a wide range of options any of which, if taken,
    will constitute competent representation.  Appellate courts must give deference
    to the choices made by counsel and the competence assessment must be informed
    by a perception in favour of competence.

[55]

I think the approach adopted by counsel was
    reasonable.  While he may have been overly optimistic about the potential impact
    of his cross-examination, I do not think that his decision not to investigate
    the incident before trial was unreasonable.  To the extent there was anything to
    be made of the incident, the simple approach adopted by trial counsel of having
    L.T. confirm the allegation, including the surrounding circumstances, and arguing
    that her description was incredible was a reasonable strategy.

[56]

Although it may be argued that trial counsels
    cross-examination on the issue was not as effective as it might have been, it
    does not, in my view, come close to warranting appellate intervention on the
    basis of incompetence.

[57]

Appellate courts should be particularly cautious
    when asked to review counsels performance during a cross-examination.  Cross-examination
    is often referred to as an art, for good reason.  While careful preparation is
    no doubt essential, counsel are frequently required to make judgments in the
    moment about how to word the next question and whether to pursue an issue or
    leave it alone.  In making decisions, counsel must be alive to the language
    used by the witness, the content of the answer, a witness demeanour, the
    likelihood of what the witness may say in response, and, importantly, the
    impact on the trier of fact of what has come out to that point and what may yet
    come out.  Successful cross-examiners may adopt different approaches to similar
    situations.  Frequently, there is not one correct way to cross-examine a
    witness on a particular point.

[58]

I would not give effect to the appellants
    argument that trial counsels handling of the almost raped allegation
    constituted ineffective assistance of counsel.

(c)       The Photograph

[59]

About four months before trial, the appellant
    informed trial counsel that he had some unusual characteristics in relation to
    his genitalia, including not being circumcised and having odd coloured pubic
    hair and a scar near his testicles.  The appellant wanted trial counsel to
    cross-examine L.T. about whether she had seen any of these unusual
    characteristics during the alleged sexual abuse.

[60]

Trial counsel did not do anything to confirm
    what the appellant had told him.  He did not cross-examine L.T. about the
    appearance of the appellants genitalia and closed his cross-examination.
    During the ensuing break, the appellant reminded counsel about this matter.

[61]

On resuming, counsel asked the trial judge to allow
    him to re-open his cross-examination.  The trial judge agreed.  In answer to counsels
    questions, L.T. testified that she had not noticed anything unusual.

[62]

At the end of the Crowns case, counsel asked
    the court to assist him in making arrangements for counsel to go to the court
    cells to take a photograph of the appellants genitals.  On examination in the
    cells, trial counsel concluded there was nothing remarkable about the appellants
    appearance.  Nonetheless, he had a photograph taken.

[63]

Once back in court, trial counsel told the court
    that there was nothing there and chalked the incident up to a misunderstanding
    on his part.  He did not produce the photograph.  In his evidence with respect
    to the incompetent counsel allegation, trial counsel conceded that when he came
    back to court empty-handed he was trying to do damage control.  He went on to
    opine that the series of events did incalculable damage to [the appellants]
    defence.  Counsel said he discerned a look of disdain on the trial judges
    face when he told the trial judge there was nothing there.  Counsel thought
    that that the incident helped get [the appellant] convicted.  He accepted that
    he was partially responsible for the disaster.

[64]

This series of events could have been avoided if
    trial counsel had looked into the issue before trial or before cross-examining
    L.T. on the issue.

[65]

In my view, the way trial counsel handled the
    issue fell below the standard of reasonableness.  He should have made sure of
    his footing before starting down the path of cross-examining L.T.  It was
    apparent that the issue could turn out poorly, as it did.

[66]

The question remains, however, whether there is
    a reasonable probability that counsels shortcomings with respect to this issue
    affected the result at trial such that the verdicts can be said to be
    unreliable.  In my view, there is not.

[67]

Trial counsel expressed the view that the courtroom
    disaster played a role in the outcome.  However, his view is not
    determinative.  Rather, it is essential to look at the way the trial judge
    addressed the issue.

[68]

When counsel returned to court after developing
    the photograph, he told the trial judge there was nothing there and that there
    had been a misunderstanding on his part.  In effect, counsel took the fall.
    The trial judge recognized that the episode could be problematic.  He addressed
    it immediately.  He said: It appears it [the photograph] has no relevance
    because the purpose of taking the picture, as I understand, was to cast some
    doubt on the evidence of the complainant.  He concluded by saying: We will
    eliminate the consideration of the photograph and consider it to be a non-issue.

[69]

In his reasons for convicting the appellant, the
    trial judge made no mention of the photograph or of any of the events relating to
    the issue.

[70]

The trial judge did not cause whatever problem
    there was.  Indeed, he did everything that he could to address any possible
    prejudice that the episode would operate unfairly to the appellant.  He said he
    was not considering it and then he did not.

[71]

I am not satisfied that the photograph incident
    played any role in the trial judges ultimate conclusion.  Thus, any
    shortcoming of the appellants trial counsel in this respect does not provide a
    basis for appellate intervention.

(d)       The Decision Not to Testify

[72]

The appellant argues that trial counsel also
    provided ineffective assistance in advising him that he need not testify at
    trial.

[73]

First, the appellant argues that trial counsel
    vastly over-estimated the effect of his cross-examination of L.T. with respect
    to the almost raped incident and that this erroneous assessment led him to
    encourage the appellant not to testify.  Trial counsel was of the opinion that
    his cross-examination was so successful that the trial judge was unlikely to
    convict on the basis of L.T.s evidence.

[74]

I do not accept this argument.  No doubt trial
    counsels assessment of the impact of his cross-examination on the almost raped
    issue was overly optimistic.  The trial judge paid little heed to this evidence
    in assessing L.T.s credibility.

[75]

However, even if counsel had not misjudged the
    impact of the almost raped evidence, it was most unlikely that he would have
    advised the appellant differently about whether to testify.  Prior to the
    trial, counsel discussed with the appellant whether he would give evidence.  Counsel
    had formed the opinion that the appellant would make a terrible witness.  In
    his discussions with the appellant, counsel observed that the appellant was
    unable to answer questions clearly, that he would go off in tangents and that
    he was the classic non-responsive witness.  Counsel gave the appellant his
    opinion.  The appellant decided that he would not testify.  As a result, the
    appellant re-elected trial by judge alone.

[76]

At most, trial counsels assessment of L.T.s
    evidence regarding the almost raped incident simply served to confirm the
    wisdom of a decision that the appellant had already made  he would not
    testify.

[77]

The appellant also says that his decision not to
    give evidence was affected by the events surrounding the photograph.  The
    concern, he argues, was that if he gave evidence, he would have been confronted
    with those events and his credibility undermined.  Be that as it may, at best,
    the photograph incident only confirmed a decision that had already been made.

[78]

In summary, I would not interfere with the
    judgment on the basis of the ineffective assistance of counsel arguments.

Issue #3: The Adequacy of the Interpretation Services

[79]

The appellant required the assistance of a
    Mandarin interpreter at trial.  He seeks to have fresh evidence admitted with a
    view to establishing that the interpretation services provided at trial were
    inadequate and breached his s. 14
Charter
rights.

[80]

The fresh evidence is found in two affidavits of
    the appellant and in the cross-examination on those affidavits.  The appellant
    alleges that he could not understand parts of the evidence at trial.  Some of
    the interpreters had accents that he could not understand and some of the
    interpreters were unable to keep up with the speed of the proceedings.  As a
    result, he argues that his rights to be present at trial and have the
    proceedings interpreted were breached.

[81]

I would not admit the fresh evidence.  The
    appellants argument that his s. 14
Charter
rights were breached has no
    chance of success.

[82]

The appellants evidence about his inability to
    understand the interpreters lacks credibility.

[83]

The appellant never mentioned anything about the
    alleged interpretation problems to his lawyer or to the court during the trial.
    The appellants trial counsel testified that the appellant did not mention any
    difficulties and that he, the counsel, was satisfied that the appellant
    understood the proceedings.

[84]

I am also satisfied that the appellant never
    told any of the interpreters that he was having trouble understanding them.
    While his proposed fresh evidence is somewhat inconsistent on this point, it is
    significant that none of the interpreters reported to the court that the
    appellant was having difficulty.  Moreover, the trial transcript reveals that
    on occasion interpreters spoke up if they were having difficulty in
    interpreting the evidence.

[85]

Most tellingly, when during the sentencing
    hearing a Cantonese interpreter attended whom the appellant did not understand,
    the appellant told the judge in English that he could not understand.  It is
    hard to imagine that the appellant would not tell his lawyer, the judge or an
    interpreter on other occasions if he had had the same problem.

[86]

Finally, in respect of the interpretation services
    at trial, the appellant submits that he may not have been present when two of
    the interpreters were sworn.  He argues that this breached his right to be
    present at his trial pursuant to s. 650 of the
Criminal Code
.

[87]

I have reviewed the relevant part of the
    transcript.  While it is not entirely clear, I think the better view is that
    the appellant was present when the interpreters were sworn.  Moreover, the
    appellant has not sought to introduce fresh evidence indicating that he was not
    present at the time.

[88]

I would not give effect to this argument.

Issue #4: Sufficiency of Reasons

[89]

The appellant argues that the trial judges
    reasons were insufficient for two reasons.

[90]

First, he says it was incumbent on the trial
    judge to reconcile the doubt he had with respect to the counts on which he
    acquitted with his findings of guilt on the other counts.  I do not accept this
    argument.

[91]

The trial judges doubt with respect to the two
    counts related to whether the offences occurred within the time set out in
    those counts.  His doubt was not based on a concern that L.T. was not telling
    the truth about her memories of the sexual abuse.  Throughout his reasons, the
    trial judge made it clear that he found L.T. to be an honest witness.  In her
    evidence, L.T. said she could not be sure about times and dates.  The trial
    judge found that this weakness was understandable in view of the long period of
    time before she disclosed the abuse.

[92]

That the alibi evidence left the trial judge
    with reasonable doubt about the accuracy of L.T.s testimony concerning the
    dates of two counts did not preclude him from finding reliable the allegations
    corresponding to the other counts for which there was no alibi evidence.  That
    finding was open to him.

[93]

Next, the appellant submits that the trial judge
    erred in failing to adequately address the inconsistency in L.T.s evidence
    regarding the nature of abuse that occurred at the Dunn Avenue residence.  The
    trial judge was alive to this issue and took into consideration the
    inconsistency in his overall assessment of L.T.s credibility.  I see no error.

Issue #5: The Assessment of L.T.s Credibility

[94]

The appellant submits that the trial judge erred
    in concluding that L.T. was credible by improperly taking judicial notice of
    two facts.

[95]

I do not agree.  First, the trial judge
    commented that the reasons L.T. gave for delays in reporting the abuse were the
    very reasons why young victims of parental abuse do not complain.  L.T. had
    testified that she did not report the abuse for several years because she was
    concerned about the family break-up, she was ashamed and the appellant told her
    not to.

[96]

Before making this comment, the trial judge had
    quoted extensively from the Supreme Court of Canadas decision in
R. v. D.D.
,

2000 SCC 43, 148 C.C.C. (3d) 41.  In that decision, the Supreme Court
    referred to the same three factors as L.T. as reasons why young people delay in
    reporting sexual abuse.  The trial judges comment flowed directly from that
    case.  Moreover, the trial judge did not use L.T.s reasons for delay as
    confirmatory or supporting evidence.  Rather, he concluded only that those
    reasons were a neutral factor explaining the delay.  He was entitled to take
    that approach.

[97]

Second, the appellant argues that the trial
    judge erred when he observed that L.T.s poor marks in school were a classic
    symptom of parental sexual abuse.  The trial judges comment was made as an
    aside in the course of his discussion about why L.T. had not complained of the
    abuse, not as a reason for finding L.T. credible.  I see no error.

[98]

Finally, the appellant argues that the trial
    judge attached too much weight to L.T.s demeanour in accepting her evidence.
    In one instance, he said her credibility is established by her demeanour.
    While the use of the word establish, taken alone, may indicate an
    over-emphasis on demeanour, the trial judges reasons read as a whole disclose consideration
    of all the appropriate factors in his assessment of L.T.s credibility.  The
    trial judge set out in some detail the arguments of the defence that challenged
    her credibility and addressed them.  He found her evidence to be
    straightforward and clear.

[99]

I would not give effect to this argument.

DISPOSITION

[100]

For all the above reasons, I would dismiss the
    appeal.

RELEASED:  FEB 22 2012  DOC

D. OConnor A.C.J.O.

I agree John I. Laskin
    J.A.

I agree E.A. Cronk
    J.A.

[1]
He also found the appellant guilty of five counts of sexual assault but stayed
    those counts on the basis of the
Kienapple
principle.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacFarlane, 2012
    ONCA 82

DATE: 20120206

DOCKET: C54032

Feldman, Watt JJ.A., and Dambrot J. (a
d hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Gary MacFarlane

Appellant

Richard Litkowski, for the appellant

Catherine Mullaly, for the respondent

Heard and released orally: January 23, 2012

On appeal from the sentence imposed on March 30, 2011 by
    Justice Bernd E. Zabel of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal and if leave is granted,
    appeals from a sentence of two years less one day, followed by two years of
    probation imposed on him by Zabel J. of the Ontario Court of Justice on March
    30, 2011, in Hamilton upon his guilty plea to a charge of manslaughter.

[2]

On August 10, 2009, after being released from custody earlier
    that day, and while on probation for a number of criminal offences, the appellant
    attended a house party and consumed a quantity of alcohol.  After leaving the
    party with his friend Matthew Pepping, the appellant encountered the deceased
    who was in the company of another person on a bicycle.  The appellant
    recognized the person on the bicycle as someone who had stolen a bicycle from
    him in the past.  The appellant and Pepping chased the bicyclist who was able
    to escape.  The appellant and Pepping then turned on the deceased, and beat him
    with their fists.  Ultimately, Pepping stabbed the deceased in the heart
    causing his death.  The appellant was aware that Pepping was carrying a knife.
    They later returned to the party.

[3]

The appellant was subsequently arrested for this offence, and
    served 599 days of pre-sentence custody.  While he was in custody, the
    appellant told Pepping that he was going to plead guilty.  He did in fact plead
    guilty on January 17, 2011.  On his return to jail after entering his guilty
    plea, he was housed in a cell with Pepping, where he was assaulted by, or at
    the direction of Pepping eight different times before being placed in
    segregation for his safety.

[4]

At his sentencing hearing, counsel for the defence and Crown
    counsel agreed that a global sentence of four years, less pre-sentence custody
    was appropriate.  However, defence counsel suggested that two-for-one credit
    would be appropriate for his pre-sentence custody, while Crown counsel
    suggested that he should be credited for 24 months, which amounts to
    approximately 1.2 for one credit.

[5]

Ultimately the trial judge sentenced the appellant to two years
    less a day, and two years of probation in addition to the pre-sentence custody,
    almost exactly the sentence that Crown counsel had sought.  The trial judge did
    not explain the basis for his calculation of pre-trial custody.

[6]

On this appeal, counsel for the appellant argues that the trial
    judge erred in principle by failing to give reasons for departing from the
    usual two for one credit for pre-trial custody, and in the circumstances argues
    that the sentence should be reduced to eight months imprisonment.  Crown
    counsel concedes that the trial judge erred in this respect, and that there was
    no reason to depart from two for one credit.  But he submits that the sentence
    imposed is a fit sentence and should stand.

[7]

We agree with both counsel that the trial judge erred in the
    manner that he dealt with pre-trial custody.  The appellant was charged prior
    to the coming into force of the
Truth in Sentencing Act
, and so that
Act
does not apply to him.  Under the former law, trial judges customarily gave two
    for one credit for pre-trial custody.  Although trial judges were entitled to
    depart from the practice of two for one credit for pre-trial custody, they were
    obliged to give reasons for doing so (see:
R. v. Francis
, [2006] 207
    C.C.C. 3d 536 (Ont. C.A.)).  Giving less than two for one credit without giving
    reasons was an error in principle.  The trial judge made that error, and as a
    result, his determination of the appropriate sentence does not attract the
    usual deference on appeal.  Our responsibility is to determine whether or not
    we consider the sentence ultimately imposed on the appellant, nonetheless, to
    be fit (see:
R. v. Lang-Watt
, 2007 ONCA 642, 228 O.A.C. 394 and
R.
    v. Situ
, 2010 ONCA 683, O.J. No. 4427).  In our view, it was.

[8]

Sentencing in manslaughter cases varies widely, but as a general
    rule, sentences are imposed proportionate to the gravity of the particular
    offence of manslaughter. Ordinarily a lengthy sentence is imposed for the
    offence of manslaughter to reflect societys concern for the sanctity of life.
    The offence committed by the appellant was a very serious manslaughter offence,
    calling for a significant penitentiary term.  The appellant had just been
    released from custody and was on probation; he had been drinking; he knew his
    co-accused had a knife; the attack consisted of a two-on-one beating of an
    unarmed 18-year-old whom the appellant did not know; and the deceased was left
    bleeding in the street.

[9]

At the same time there are some mitigating factors.  The
    appellant was 21 at the time; he had no prior convictions for violent crime; he
    did not stab the victim; he pleaded guilty and expressed remorse; he fully
    cooperated with the police; and he was beaten in jail as a consequence of
    pleading guilty.

[10]

In this case, taking into account the aggravating and mitigating
    factors, including the pre-trial custody, we are of the view that the ultimate
    sentence of two years less one day sought by the trial Crown, and imposed by
    the trial judge, was fit.

[11]

While leave to appeal is granted, the appeal is dismissed.

K.
    Feldman J.A.

David
    Watt J.A.

M.
    Dambrot J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Millington, 2012 ONCA 96

DATE: 20120210

DOCKET: C54729

Laskin, Rosenberg and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Millington

Appellant

Paul Calarco, for the appellant

Emile Carrington, for the respondent

Heard: February 9, 2012

On appeal from the sentence imposed on March 8, 2011 by
    Justice Todd L. Archibald of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

Leave to appeal sentence is granted.

[2]

The appeal is allowed and the sentence is reduced to two years
    less a day.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Niemi, 2012 ONCA
    133

DATE: 20120228

DOCKET: C52536

Goudge, MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lyle Niemi

Appellant

Sarah J. Bagnall, for the appellant

Howard Piafsky, for the respondent

Heard: February 27, 2012

On appeal from the sentence imposed on July 3, 2008 by
    Justice Margaret Eberhard of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge found that the appellant was a willing
    participant in a pre-existing scheme to import a very large quantity of cocaine
    and hashish.  There was ample evidence for this finding.  Indeed it is implicit
    in his conviction.

[2]

Given the nature of the scheme, the role of the appellant as
    pilot and the amounts involved, the need for deterrence and denunciation fully
    justifies the sentence.  It is not unfit.

[3]

Nor is it an error in principle, in these circumstances for the
    sentence to be imposed with no evidence of extra monetary gain by the
    appellant.  The sentence is imposed not to deter importing as a business
    venture but because of the extraordinary damage done by the drugs being
    imported.

[4]

The sentence appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Patriquin, 2012
    ONCA 67

DATE: 20120201

DOCKET: C53800

Feldman and Watt JJ.A. and Dambrot J. (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Wilfred Patriquin

Appellant

David W. Russell, for the appellant

Matthew Asma, for the respondent

Heard and released orally: January 24, 2012

On appeal from the sentence imposed on January 10, 2010,
    by Justice Faith M. Finnestad of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant contends that the sentencing judge committed three errors
    in principle in imposing a global sentence of five years on convictions of
    operating a motor vehicle with a prohibited blood alcohol concentration and
    leaving the scene of an accident.

[2]

The errors in principle advanced by the appellant are

i.

that the trial judge erred in failing to give appropriate weight to the gap
    principle in light of the substantial time that had elapsed between these
    offences and the appellants last related conviction;

ii.

that the trial judge erred in failing to accord appropriate weight to
    the appellants unstable health, a claim reinforced by fresh evidence of his
    current condition; and

iii.

that the trial judge relied in sentencing the appellant on a finding of
    fact that she had rejected in acquitting the appellant of impaired operation.

[3]

We would not give effect to any of the claims there.

[4]

The trial judge was well aware of the gap principle and its underlying
    rationale. The gap between related convictions in this case was considerable,
    but there was evidence, which the trial judge accepted, that, during the
    conviction free period, the appellant continued to consume excessive amounts of
    alcohol on a regular basis. In addition, there was evidence that the appellant
    was observed driving, or at least in charge of a motor vehicle, with open
    alcohol in the vehicle during the gap period.

[5]

By his own admission, the appellant had drunk six beers in an hour
    before getting into his uninsured truck and driving away. It was open to the
    trial judge to accord less weight to the gap principle in these circumstances
    and we see no error in her having done so.

[6]

The trial judge was well aware, as are we, of the appellants expressed
    health concerns. It does not follow from the length of sentence imposed that
    the trial judge failed to give adequate weight to this factor.

[7]

This was an extremely serious offence. The blood alcohol concentration
    was significantly in excess of the prohibited concentration and the appellant
    has nearly three dozen prior convictions for related offences involving excess
    alcohol consumption, as well as disqualified and dangerous driving.

[8]

Nor do we agree that a comparison of the reasons for judgment and
    reasons for sentence reveals an inconsistency in the trial judges findings
    about appellants role in an accident that occurred while he was driving his
    motor vehicle. The trial judge made no determinative finding on factual
    causation in her reasons finding the appellant not guilty of impaired
    operation.  It was open to her to consider, as she did, that the appellants
    driving involved an accident.

[9]

In the result, we see no error in principle in the sentence imposed by
    the trial judge. Leave to appeal sentence is granted, but the appeal is
    dismissed.

K. Feldman J.A.

David Watt J.A.

M. Dambrot J. (ad  hoc)


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Potvin, 2012 ONCA 113

DATE: 20120217

DOCKET: C43975

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Marcel Potvin

Appellant

Roger Marcel Potvin, appearing in person

Shannon OConnor, as duty counsel

Jamie Klukach, for the respondent

Heard and released orally: February 9, 2012

On appeal from the conviction for sexual assault entered
    by Justice Hugh Fraser of the Ontario Court of Justice, sitting without a jury,
    on April 1, 2005.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault, criminal harassment and
    various breaches of recognizance.  He appeals only his conviction for sexual
    assault, arguing that the trial judge erred in his consideration of the
    appellants alternate defence of honest but mistaken belief in consent.
[1]

[2]

The complainant testified that on the night in question, she repeatedly
    declined to have sex with the appellant, telling him no on five separate
    occasions and that she was feeling ill and she was menstruating.  She testified
    that she finally said okay only when the appellant refused to take no for an
    answer and persisted in his efforts to have sex notwithstanding her refusals and
    resistance.  In these circumstances, we agree with the trial judge that the
    appellant was obliged to take steps to determine whether there was a reasonable
    basis for belief in the complainants consent.

[3]

On behalf of the appellant, duty counsel submits that it was reasonable
    for the appellant to believe that the complainant was consenting to sex because
    she ultimately said okay.

[4]

We disagree.  It was precisely when the complainant said okay  after repeatedly
    saying no, providing various reasons for why she did not want to have sex,
    and resisting the appellants efforts to take her into the bedroom of her
    apartment  that the appellants obligation to take steps to ascertain whether
    there was a reasonable basis for his belief in the complainants consent
    arose.  There is simply no evidence that the appellant did anything to
    ascertain if the complainant was in fact willing to have sex.  Instead, on the
    uncontradicted evidence of the complainant, which the trial judge accepted, the
    appellant acted as if he hadnt heard anything.

[5]

The appellant argues that the trial judge erred by failing to view the
    reasonableness of his belief in the complainants consent in the context of all
    the applicable circumstances as known to the appellant.

[6]

Again, we disagree.  The pertinent facts known to the appellant were
    straightforward.  The complainant repeatedly said no to sex and then appeared
    to say yes by uttering the word okay.  Viewed in the context of all that
    preceded it, we agree with the trial judge that the complainants use of the
    word okay was ambiguous.  In the absence of further inquiry by the appellant,
    a single okay after five refusals over a sustained period of time was simply
    insufficient to ground a reasonable but mistaken belief in consent.

[7]

The appeal from conviction on sexual assault is therefore dismissed.

J.C. MacPherson
    J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.

[1]
Although the appellant originally also advanced ineffective assistance of
    counsel as a ground of appeal, he abandoned this claim prior to argument of his
    appeal.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Prioriello, 2012
    ONCA 63

DATE: 20120203

DOCKET: C52926

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Prioriello

Appellant

Jonathan Dawe, for the appellant

Lorna Bolton, for the respondent

Heard:  January 27, 2012

On appeal from the sentence imposed on December 18, 2009
    by Justice K.L. Hawke of the Ontario Court of Justice.

OConnor J. (
ad hoc
):

[1]

The appellant, Nicholas Prioriello, appeals his sentences on 32
    convictions to which he pled guilty.

Facts

[2]

The total length of the sentences was just short of 8 years in
    prison.  He was given credit for pre-trial custody of nearly 2 years, leaving 6
    years apportioned as follows:

·

Five years for each of the following offences, all to be served
      concurrently:

·

Possession of property obtained by crime over $5,000 (x2)

·

Failure to stop for a police officer

·

Dangerous driving

·

Impaired driving

·

Drive while disqualified

·

Breach of probation (x4)

·

One year for each of the following offences to be served,
      concurrently to one another, but consecutively to the above charges:

·

Break and enter and commit theft (non-dwelling house) (x19)

·

Possession of burglary tools (x3)

[3]

The offences occurred between October 17, 2008 and January 24,
    2009.  He broke into 24 commercial properties in Halton, Toronto, Peel and
    Durham.  In excess of $55,000 was stolen and approximately $12,000 in damages
    caused.  As part of his plea bargain arrangement, no convictions were registered
    on other counts.  On January 23, 2009, he stole a van, drank a large quantity
    of alcohol and led police on a high speed chase on residential and commercial
    streets in West Toronto.  During the chase, he drove into a police cruiser,
    causing an officer minor injuries and twice collided with snow banks.  When the
    van broke down, he fled on foot.  While being arrested he fought with police,
    resulting in an officer breaking his hand.

[4]

The appellant has a lengthy criminal record, including over 120
    previous convictions.  At the time of his arrest, he was banned for life from
    driving and was subject to two probation orders.

[5]

The Crown sought a total sentence of 5 to 6 years on the first
    group of offences and a consecutive 3 to 5 years on the second group, less the
    2 year credit for pre-trial custody.  The Crowns range was therefore 8-11
    years, less 2 years or 6 to 9 years.

[6]

The defence argued for a net upper reformatory sentence for all
    offences.  As noted, the sentencing judge imposed a total sentence between
    those suggested by the two counsel.

[7]

The appellant argues the sentencing judge erred in arriving at the
    sentences imposed.  She failed to give sufficient weight to his mental
    disorders, while overemphasizing specific deterrence and imposing a 5 year
    sentence for breach of probation which carries a maximum sentence of 2 years.

The Appellants Background

[8]

The appellant was 42 years old when sentenced.  He exhibited
    behavioural problems as a child and spent time at a secure training school for
    boys where he was physically and sexually abused.  His sister was raped and
    murdered.  As a young adult, he showed signs of schizophrenia, although it
    appears he has never been formally diagnosed.  He became addicted to cocaine
    and began his extensive life of crime at an early age.  His mental illnesses
    went untreated for many years until he began medication and psychological and
    psychiatric treatment programs in 2006.  At the time of some of the offences,
    he had discontinued his medications, begun drinking alcohol and had
    deteriorated badly.  As is often the case, the appellant did better when he
    adhered to his treatment programs.

Discussion

[9]

The appellant argues that the sentences are excessive because the
    sentencing judge failed to take into account his mental illness.  We do not
    accept this proposition.

[10]

The appellant appears never to have been formally diagnosed with
    schizophrenia.  He tendered no medical evidence to the court.  For purposes of
    this discussion, however, we are prepared to accept that he suffered from some
    form of mental illness.  The sentencing judge was clearly sensitive to his
    illness as is evident in the following remarks:

...What it really gets down to is that it is very difficult to
      punish someone with a harsh or at least a long sentence when one knows very
      well that there is an underlying mental illness.  Being punished when you are
      ill is problematic.  On the other hand, there are other considerations that
      have to be brought to bear and it is not as if his mental illness is not
      something that could not be managed, in fact was for a short period of time,
      and it is not as if his mental illness interfered with his basic cognitive
      abilities either.

...

Turning to the issue of mental illness, his longstanding
      association with a psychiatrist and other supports in the community are set out
      in the PSR.  It appears that he is someone who suffers from schizophrenia and
      bi-polar disorder, and also has seizures.  I am not sure what the basis of it
      is, but there is some suggestion of nerve damage, and ADHD...

[11]

In order for a mental illness to be considered as a mitigating
    factor in sentencing, the offender must show a causal link between his illness
    and his criminal conduct, that is, the illness is an underlying reason for his
    aberrant conduct:
R. v. Robinson
, [1974] O.J. No. 585 (C.A.).

[12]

Further, there must be evidence that a lengthy sentence would
    have a severe negative effect on the offender such that it should be reduced on
    compassionate grounds.

[13]

The evidence before the sentencing judge did not support such a
    conclusion in this case.  Some of his offences occurred before he discontinued
    his medications and some after.  Neither of his psychologist or psychiatrist
    supported the theory of a causal link between his illness and his behaviour.
    Further, although his psychiatrist described him as vulnerable, there was no
    evidence that the negative impact of prison would reach the level required to
    warrant a reduced sentence.

[14]

The sentencing judge was very concerned about the proper
    dispositions of this matter; she adjourned the sentencing hearing twice to
    think further and to carefully consider the appropriate sentence, taking into
  account the needs of the appellant and of her obligation to protect society.

[15]

She said:

...To be frank, I have been over and over the materials a few
      times, have come to a situation where I actually dont agree with either party
      in terms of their submission.  Through that process, I have moments of
      difficulty, I would confess, even agreeing with myself.  What it really gets
      down to is that it is very difficult to punish someone with a harsh or at least
      a long sentence when one knows very well that there is an underlying mental
      illness.  Being punished when you are ill is problematic.  On the other hand,
      there are other considerations that have to be brought to bear and it is not as
      if his mental illness is not something that could not be managed, in fact was
      for a short period of time, and it is not as if his mental illness interfered
      with his basic cognitive abilities either.

[16]

The global sentence of 6 years, after the credit of 2 years, is a
    fit sentence in the circumstances of this case.  The sentencing judge did not
    err in law.

[17]

We considered the fresh evidence that the appellant wished to
    tender about his current psychological condition and observe that it would not
    affect our decision.

[18]

The appeal is dismissed.

RELEASED:  DOC   FEB 03 2012

OConnor J. (
ad hoc
)

I agree D. OConnor
    A.C.J.O.

I agree J.C.
    MacPherson J.A.