WARNING

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

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

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    information that could identify the victim or a witness shall not be published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

(a)     any of the following offences;

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

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

(iii)     REPEALED: S.C. 2014, c. 25,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

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

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

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

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

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    the victim shall not be published in any document or broadcast or transmitted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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. F.B.P., 2019 ONCA 157

DATE: 20190228

DOCKET: C61984

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

F.B.P.

Appellant

Sherif M. Foda, for the appellant

Jeremy Tatum, for the respondent

Heard: February 13, 2019

On appeal from the conviction entered by Justice Joseph
    F. Kenkel of the Ontario Court of Justice on January 26, 2016, and from the
    sentence imposed on April 12, 2016, with reasons reported at 2016 ONCJ 860 and
    2016 ONCJ 861.

Paciocco J.A.:

[1]

The appellant was tried before an Ontario Court of Justice trial judge on
    a charge of sexually assaulting C.I. Although C.I., who drank heavily that
    night, could not recall what happened, the appellant subsequently told her they
    had had sex. His DNA was found on her underwear. Not surprisingly, the
    intercourse was admitted at trial. The only issue was consent.

[2]

Key evidence in the case was presented by C.I.s friend, who testified
    that she witnessed the appellant helping C.I. to her bed when C.I. didnt seem
    very awake, appeared unable to function, and could not hold her body up
    anymore. The appellant gave a different account of C.I.s condition when he
    brought her to the bed, claiming that despite her intoxication she was capable
    of consenting and did so by asking for sex. The trial judge disbelieved the
    appellant, and based in large measure on C.I.s friends evidence relevant to
    C.I.s incapacity due to intoxication, convicted him. The trial judge found
    that C.I. did not consent because she was incapable of doing so, and that the
    appellant did not have an honest but mistaken belief in consent because he had
    not taken reasonable steps to determine her consent.

[3]

The appellant appeals his conviction. He has now abandoned the
    accompanying sentence appeal. For the reasons that follow, I would deny the
    conviction appeal, and dismiss the sentence appeal as abandoned.

[4]

The first ground in the conviction appeal is that the trial judge relied
    on non-probative factors to ground his finding of C.I.s incapacity, including
    evidence that C.I. continued to drink after vomiting, the severity of the
    complainants hangover the next day, and her loss of memory.

[5]

In my view, while none of these factors leads to a direct inference of
    C.I.s incapacity, each of these factors is relevant evidence of C.I.s
    intoxication, a central plank in the Crowns theory that C.I. was too
    intoxicated to consent. Since incapacity through intoxication cannot be
    established without proof of intoxication, evidence of indicia of intoxication
    is relevant and probative.

[6]

Of importance, the trial judge recognized that [i]ntoxication does not
    automatically equate to incapacity. There is no basis for concluding that, despite
    this understanding, he went on to use the indicia of intoxication directly as
    proof of incapacity, or gave this evidence improper weight.

[7]

The trial judge also relied on C.I.s shocked response when the
    appellant told her they had had sex. Specifically, C.I. testified that when the
    appellant told her he had had sexual intercourse with her, she responded [w]hat?,
    and then shortly after, I need to go to Shoppers  I need to go to Shoppers
    [to get a morning after pill]. The appellant says her shocked reaction is
    non-probative, self-serving hearsay. In my view, this evidence is probative as
    evidence confirming C.I.s lack of memory, which, in context, was consistent
    with her intoxicated condition when the sexual intercourse occurred. The trial
    judge was therefore entitled to find her shocked reaction to be probative in
    supporting C.I.s friends description of C.I.s mental and physical state
    prior to the sexual intercourse.

[8]

No hearsay objection was made at the time this evidence was admitted.
    Had an objection been made it would have failed. C.I.s shocked reaction,
    reflected in the comments she made, was clearly admissible. It is either
    non-hearsay circumstantial evidence of C.I.s present state of mind, as
    described in
R. v. P.(R.)
(1990), 58 C.C.C. (3d) 334 at p. 341 (Ont.
    H.C.J.) by Doherty J., or if more properly characterized as an implied hearsay
    assertion according to
R. v. Baldree
, 2013 SCC 35, [2013] 2 S.C.R.
    520, it is implied hearsay that would nonetheless gain admission under the
    statements of present state of mind exception to the hearsay rule.

[9]

During oral argument, counsel for the appellant also argued that the
    trial judge erred in law when rejecting the appellants account of having
    intercourse with C.I. on the hotel room balcony prior to the alleged sexual
    assault, by drawing stereotypical inferences about how women would behave
    sexually in a set of circumstances. I disagree. The trial judges finding that
    it would be implausible for the complainant to have had sex with the appellant in
    public, on a balcony, when both prior to this happening, and after this happening,
    she had shown no interest in him, and when there was a bedroom nearby, is
    grounded in common sense propositions about the likelihood of human behaviour
    in all of the circumstances. It does not depend upon impermissible stereotypes
    or rape myths.

[10]

Nor
    were improper stereotypical inferences relied upon when the trial judge
    concluded that the appellants description of his own conduct on the balcony
    was implausible. The trial judge was not concerned with the unlikelihood, in
    isolation, that the appellant would engage in intercourse on a public balcony.
    He found such behaviour to be implausible in light of the appellants testimony
    that he intended to leave the balcony and was not interested in C.I.

[11]

The
    appellant also urges that the trial judge failed to apply
R. v. W. (D.)
,
    [1991] 1 S.C.R. 742 and reversed the onus of proof with respect to the defence
    of honest but mistaken belief in consent, which the appellant claims the trial
    judge failed to analyze. Again, I disagree.

[12]

On
    the first point, it is apparent when reading the decision as a whole that
    although he did not cite
W.(D).
directly, the trial judge applied
W.(D.)
He said he did not accept the testimony of the appellant and then concluded his
    decision by commenting, with obvious reference to the appellants evidence, I
    can find no credible evidence that reasonably could leave a doubt. He then
    said, I find that the Crown has proved the charge of Sexual Assault s. 271
    beyond a reasonable doubt. Together these passages account for each of the
W.(D).
requirements.

[13]

With
    respect to the second point, the trial judge did consider the defence of honest
    but mistaken belief in consent, and he rejected it. The fact that the trial
    judge misspoke when doing so by describing the defence as reasonable belief
    in consent is of no moment. He rejected the defence based on the absence of
    reasonable steps.

[14]

Since
    a judge may only consider a mistaken belief in consent defence that has an air
    of reality, it is clear that the trial judge did not reject the defence because
    he felt it had no air of reality, as the appellant suggests. The trial judge
    treated the defence as being before him and determined it on its merits.

[15]

Nor
    did the trial judge commit a
W.(D.)
error in rejecting the defence. The
    appellants submission in this regard is untenable. His argument focuses on the
    fact that the appellant was the only person to offer evidence about what
    transpired during the sexual intercourse, as C.I. had no memory. The appellant
    urges that even if the trial judge properly disbelieved the appellants
    evidence beyond a reasonable doubt, since that would leave a complete absence
    of evidence, the Crown would be unable to discharge its burden of proving that
    reasonable steps were not taken. Not only would this submission, if accepted, produce
    the intolerable outcome of effectively preventing convictions in all cases of
    sexual assaults on unconscious women occurring in private, regardless of the
    strength of the incapacity evidence, but it is also wrong in law. If the air of
    reality test is met, the defence that is on the table and that requires
    rebuttal is the one that is grounded in evidence, in this case the mistaken
    belief in consent defence that arose from the appellants version about what
    happened in the bedroom. Once the trial judge absolutely rejected the
    appellants evidence, the only defence that was before the court was disproved
    beyond a reasonable doubt, and the Crown had discharged its burden. Quite
    simply, it is a misconception to think that where a particular set of facts gives
    an air of reality to a defence, the Crown must then lead affirmative evidence
    disproving every imaginable set of facts that could give rise to the same kind
    of defence. No reversal of onus occurred here.

[16]

I
    do agree, however, that the trial judge misapprehended evidence in three
    respects.

[17]

First,
    although there was evidence that C.I. passed out at some point, there was no
    evidence capable of supporting the trial judges finding that C.I. passed out
    before she was helped back to the bed where she was allegedly sexually
    assaulted. The trial judge was mistaken in finding that C.I.s friend had
    offered such testimony. The only evidence that can be taken to address whether
    C.I. was passed out at that time was the appellants statement to the contrary,
    that C.I. was lying down in the other room [the other room evidence]. The
    trial judge did not believe the appellant that C.I. was merely lying down in
    the other room, as he was entitled to. But he was not entitled to parlay that
    disbelief into an affirmative finding that C.I. was passed out in the other
    room. There was no affirmative evidence to support that conclusion.

[18]

Second,
    the appellant testified to a sexual advance by C.I. on the balcony. The trial
    judge interpreted the appellants evidence as being that this advance was
    unwanted, a characterization his testimony does not reasonably bear. To be
    sure, the appellant did say that he was not interested in C.I. as more than a
    friend, but that disinterest alone cannot support an inference that the sexual
    advance was unwanted in the face of the appellants testimony that he was happy
    it had happened and could not help himself when propositioned.

[19]

Third,
    the trial judge said that C.I.s friend drank less than C.I. had, when the only
    evidence relevant to the relative condition of the two was C.I.s friends
    evidence that she was less intoxicated than C.I. was.

[20]

I
    do not find, however, that these mistakes caused a miscarriage of justice by playing
    an essential part in the trial judges reasoning.

[21]

The
    mistaken other room evidence was used as further proof of C.I.s state of
    intoxication. That intoxication was decisively established by other indicia of
    alcohol consumption and impairment, including C.I.s friends direct evidence
    of C.I.s condition upon returning from the other room with the appellant.

[22]

The
    mistake about an unwanted sexual advance was considered by the trial judge,
    along with other evidence, to demonstrate the implausibility of the appellants
    testimony that he would respond by having sex with C.I. on the balcony, and that
    he would then accompany C.I. to the bed where the alleged sexual assault
    occurred. However, these inferences were not central to the rejection of the
    appellants version of the sexual intercourse that formed the subject of the
    assault charge, and the reasons the trial judge considered the balcony event to
    be implausible went well beyond his misconception that the appellant considered
    that sexual advance to be unwanted. More importantly, a key consideration for
    the trial judge in rejecting the appellants testimony about what transpired in
    the bed was C.I.s friends evidence of C.Is condition at the time, which was completely
    inconsistent with the statements and aggressive physical reactions [that the
    appellant] attributes to [C.I.].

[23]

Finally,
    the mistake about C.I.s friend having drunk less alcohol than C.I. was used in
    evaluating the reliability of C.I.s friends testimony, by inferring that she
    was not as intoxicated as C.I. was. This error does not matter because, as
    indicated, C.I.s friend testified directly that she was not as intoxicated as
    C.I.

[24]

During
    oral argument, counsel asked us for the first time to entertain an appeal from
    the reasonableness of the conviction, given the state of evidence and the
    problems with the reliability of the Crown evidence. This ground of appeal
    cannot succeed. The trial judge was alive to the reliability problems with the
    Crowns evidence. On the record before us, I would not interfere with the credibility
    and reliability determinations of the trial judge. They were his to make. Nor
    would I interfere with his verdict. It, too, was one the trial judge was
    entitled to come to on the evidence before him.

[25]

It
    was also drawn to our attention orally that the trial judge imposed a 5 year
    SOIRA order, instead of the required 20 year SOIRA order. The Crown did not
    press this court to amend the order. In the absence of an appeal I decline to
    do so.

[26]

The
    conviction appeal is therefore dismissed. The sentence appeal is also dismissed
    as abandoned.

Released: DB Feb 28 2019

David
    M. Paciocco J.A.
I agree. K. Feldman J.A.
I agree. B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farkas, 2019 ONCA 108

DATE: 20190213

DOCKET: C65215

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zoltan Farkas

Appellant

Andrew Stastny, for the appellant

Caitlin Sharawy, for the respondent

Heard and released orally: February 12, 2019

On appeal from the conviction entered on September 20,
    2017 by Justice Donald Halikowski of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown agrees with the position of the appellant that the guilty plea
    to theft from mail contrary to s.356(3) of the
Code
was uninformed, as
    the appellant was not aware of the immigration consequences of a conviction for
    that offence. It is agreed by both parties that had the appellant been fully
    informed, he would have pled guilty to the lesser included offence of theft
    under $5,000, contrary to s.334(b) of the
Code
.

[2]

Therefore, on consent, the appeal is dismissed in accordance with s.686(1)(b)(i),
    the verdict of guilty to theft from mail is set aside and a verdict of guilty
    to theft under $5,000 is substituted. The sentence remains the same (s.686(3)(b)).
    It has been served.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gaetan, 2019 ONCA 118

DATE: 20190215

DOCKET: C64349

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Glenn Gaetan

Appellant

Glenn Gaetan, appearing in person

Zachary Kerbel, duty counsel

Marie Comiskey, for the respondent

Heard: February 12, 2019

On appeal from the conviction entered on July 19, 2017
    and the sentence imposed on September 7, 2017 by Justice John B. McMahon of the
    Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant wants to abandon his appeal. The appeal is
    dismissed as abandoned. If there is a victim fine surcharge in the appellants
    sentence (this is unclear), it is vacated.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hall, 2019 ONCA 130

DATE: 20190220

DOCKET: C65840

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyvon Hall

Appellant

Tyvon Hall, in person

Scott Hutchison, duty counsel

Hannah Freeman, for the respondent

Heard: February 11, 2019

On appeal from the sentence imposed on June 27, 2018 by
Justice R. Kelly of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The victim fine surcharge (7 fines totalling $900) is set aside.  The
appeal is allowed to that extent.  In all other respects, the appeal is
dismissed as abandoned.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Katalayi-Kassende, 2019 ONCA 137

DATE: 20190221

DOCKET: C60653

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ken Michel Katalayi-Kassende

Appellant

Ian R. Smith, duty counsel

Jessica Smith Joy, for the respondent

Heard: February 13, 2019

On appeal from the conviction entered on June 10, 2015
    and the sentence imposed on June 10, 2015 by Justice L.D. Ratushny of the Superior
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown concedes that the SOIRA order was improperly made. The
    appellant abandons his appeal on all other grounds. The appeal is allowed, but
    only to the extent of removing the SOIRA order.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kennedy, 2019 ONCA 77

DATE: 20190204

DOCKET: C62784

Watt, Huscroft and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shayne Richard Kennedy

Appellant

Gregorz Dorsz and Venus Sayed, for the appellant

Surinder S. Aujla, for the respondent

Heard and released orally: January 30, 2019

On appeal from the sentence imposed on September 21, 2016
    by Justice Kelly A. Gorman of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant pleaded guilty before a judge of the Superior Court of
    Justice to four offences arising out of a sizeable marijuana grow operation.
    The offences included:

i.

production of marijuana;

ii.

theft of electricity;

iii.

theft of water; and

iv.

injury to property, contrary to s. 441 of the
Criminal Code
.

[2]

The grow operation consisted of 864 plants capable of producing, it was
    said, 162 pounds of marijuana. Depending upon how the harvested product was
    sold, the crop was valued at between $324,000 and $518,000.

[3]

The appellant challenged the constitutional validity of the statutory
    minimum sentence of three years for production of marijuana under s. 7(2)(b)(vi)
    of the
CDSA
.
The sentencing judge dismissed the challenge.

[4]

The parties then made a joint submission on sentence. They proposed that
    the appellant receive the mandatory minimum sentence of three years for the
    production offence, and concurrent terms of 12 months for each of the remaining
    counts. The judge also imposed a free-standing restitution order of $15,858.87
    to compensate the property owner for damage to his property, as well as other
    ancillary orders.

The Background Facts

[5]

The grow operation in this case was carried out in a house owned by a
    third party in a residential area. The property was damaged by breaking a large
    hole through the concrete floor of the garage. Hydro and water meters were
    bypassed. The operation posed significant safety hazards to the public, and to any
    first responders who may have been summoned to the home. These hazards included
    fire, electrocution, and power disruption.

[6]

The appellant was 22 years old at the time of arrest. He is now 27.
    These are his first convictions. He was not a principal in the marijuana grow
    operation, but superintended the grow operation, for what would appear to be a
    substantial time, for financial gain. He and three siblings were raised in a
    single-parent household without the benefit of financial security. He admits to
    daily use of marijuana since age 12. He has never sought counselling.

The Positions of the Parties

[7]

The parties occupy common ground that the mandatory minimum sentence of
    three years under s. 7(2)(b)(vi) of the
CDSA
must fall on
    constitutional grounds. It follows that we must determine a fit sentence for
    this offender, for this offence, and in these circumstances, having regard to
    the governing sentencing objectives, principles and factors in Part XXIII of
    the
Criminal Code
.

[8]

The appellant contends that a fit sentence in this case is a term of
    imprisonment of six to nine months. And the execution of that sentence, he
    says, should be stayed because of the rehabilitative steps he has taken while
    on judicial interim release, both before and after conviction and sentence.

[9]

The respondent says that a fit sentence in this case is a global
    sentence of 18 months in custody. Although the respondent acknowledges the
    prospect of a blended sentence, in light of the concurrent sentences of 12
    months each for the property crimes, he rejects any suggestion that the
    execution of the sentence should be stayed.

Discussion

[10]

In
    our view, a fit sentence for the production conviction is a sentence of
    imprisonment for 14 months.

[11]

The
    predominant sentencing objectives at work here are denunciation and deterrence.
    That said, we are mindful of the role of rehabilitation in the case of this
    youthful first offender. On the other hand, the motivating factor here was
    purely and plainly financial. This was a large, ongoing, commercial operation
    in which the appellant played an integral role in the production of marijuana.
    It was also an operation fraught with potential dangers as a result of the
    hydro bypass. Dangers to others in the residential area. Dangers to first
    responders. And dangers to the property itself.

[12]

The
    appellants focus is on the production sentence. He advances nothing that would
    persuade us that the sentences imposed for what might be termed the property
    offences were unfit. Nor are we persuaded that this is a case in which
    execution of the sentences should be stayed in light of the time spent in
    custody, or the rehabilitative steps taken by the appellant whilst out of
    custody.

[13]

We
    grant leave to the appellant to introduce the fresh evidence on sentence, and
    admit that evidence.

[14]

We
    grant leave to appeal sentence, set aside the sentence of three years on the
    production count, and substitute a sentence of 14 months for that offence. We
    do not disturb the sentences imposed on the other counts, or the order that those
    sentences be served concurrently. The restitution, s. 109 and forfeiture orders
    stand. The victim surcharges are set aside.

David Watt J.A.

Grant Huscroft J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khan, 2019 ONCA 81

DATE: 20190205

DOCKET: C64680

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jalal Khan

Appellant

Andrew Furgiuele, for the appellant

Geoffrey Roy, for the respondent

Heard and released orally: February 1, 2019

On appeal from the conviction entered on July 31, 2017 by Justice Bruce J. Frazer of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for possession of cocaine for the
    purpose of trafficking. The appellant was found by the police in the back seat
    of a car with a dime bag (0.55 grams) of crack cocaine in his wallet. He does
    not contest his conviction for possession of that drug.

[2]

He was in the car with two other men in the front, who were also
    convicted of possession for the purpose of trafficking in relation to a large
    plastic sandwich bag hanging out of the kangaroo pouch on the back of the front
    passenger seat of the car. That bag contained 14.78 grams of bulk crack
    cocaine, 14.12 grams of bulk powder cocaine and 7 small baggies containing
    small amounts of crack cocaine, and was hanging in close proximity to the
    appellant.

[3]

The issue in respect to the appellant was whether the Crown had proved
    beyond a reasonable doubt that he was jointly in possession with the other two
    of the large bag of cocaine. The Crown expert gave evidence that it was
    possible that the appellant bought the small baggie from someone in the car and
    got caught by the police before he got out of the car.

[4]

In our view, not only was that possible, but it was likely, given that
    the appellants brother was present at the scene in his own car. It was
    certainly a reasonable possibility.

[5]

In our view, the trial judge erred in law by failing to apply the
    Supreme Court of Canadas decision in
R. v. Villaroman
, 2016 SCC 33,
    at para. 37, where the court stated:

When assessing circumstantial
    evidence the trier of fact should consider other plausible theories and other
    reasonable possibilities which are inconsistent with guilt.

[6]

The trial judge failed to consider whether the Crown had negatived the
    reasonable possibility that the appellant was merely a purchaser of cocaine and
    not one of the drug traffickers.

[7]

On the record as a whole, we agree with counsel for the appellant that
    there is nothing in the evidence to negative that reasonable possibility in
    order to be satisfied of guilt beyond a reasonable doubt.

[8]

As a result, the verdict is an unreasonable one and must be set aside.
    The appeal is allowed and an acquittal will be entered.

K.
    Feldman J.A.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lee, 2019 ONCA 140

DATE: 20190222

DOCKET: C62393

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wai Leung (Patrick) Lee

Appellant

Wai Leung (Patrick) Lee, in person

Amy Ohler, duty counsel

Jessica Smith Joy, for the respondent

Heard and released orally:  February 13, 2019

On appeal from the conviction entered on June 17, 2016 by
    Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

We have carefully considered the detailed submissions of Mr. Lee as
    outlined in his further supplementary appeal book.

[2]

The grounds of appeal essentially raise questions of facts as found by
    the jury.  No questions of law are raised by the appellant and we are satisfied
    that there was evidence to support the jurys verdict.

[3]

There are no grounds raised in this appeal that would justify appellate
    intervention.

[4]

Accordingly, the appeal is dismissed.

J.C. MacPherson J.A.

Robert J. Sharpe J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leite, 2019 ONCA 121

DATE: 20190215

DOCKET: C65763

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Leite

Appellant

Ian Smith as duty counsel

Rick Visca, for the respondent

Heard: February 13, 2019

On appeal from the sentence imposed on February 28, 2018
    by Justice Alan D. Cooper of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises a single ground of appeal. He submits that the
    trial judge erred by sentencing him to a consecutive sentence of two years for
    possession of fentanyl on top of a six year sentence also for possession of
    fentanyl. Both counts related to drugs found in two different places in the
    appellants residence on the same day. The trial judge provided no explanation
    for making these sentences for possession of the same drug in the same place
    and on the same day consecutive. In our view, this was an error of law and
    accordingly, we alter the sentence by making those sentences concurrent. The
    Crown concedes that the victim surcharge of $1,200 must be set aside. Appeal
    from sentence allowed in accordance with these reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacKay, 2019 ONCA 117

DATE: 20190219

DOCKET: C63760

Feldman, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bryanna MacKay

Appellant

Mark C. Halfyard, for the appellant

Thomas C. Lemon, for the respondent

Heard: February 13, 2019

On appeal from the conviction entered on December 16,
    2016 and sentence imposed on May 5, 2017 by Justice Kevin B. Phillips of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals her conviction of possession of cocaine for the
    purpose of trafficking. She claims the trial judge committed (1) a
Sekhon

error, (2) reversed the onus of proof on the question of whether the
    possession was for personal use, and (3) arrived at an unreasonable verdict. We
    would not give effect to any of these grounds of appeal.

[2]

With respect to the alleged
Sekhon

error, we agree that
    the Crown expert offered inadmissible anecdotal information about the purpose
    or intent of others she had encountered who possessed cocaine under similar
    circumstances, and that this evidence was offered to counter the suggestion
    that possession in such circumstances could be for personal use. However, the
    experts ultimate opinion that possession in such circumstances would be for
    the purpose of trafficking was well grounded in objective facts, and there is
    no indication that the trial judge relied on the inadmissible anecdotal
    information the expert supplied. We reject this ground of appeal.

[3]

We do not agree that the trial judge reversed the onus of proof on the
    question of whether the possession was for personal use. The trial judges
    conclusion that personal use was not grounded in the evidence finds support in
    the amount of the cocaine; the value of the cocaine, and the fact that that it
    was, mainly, in a pressed form chunk instead of powdered form suitable for
    personal use. Simply put, the natural inference from these facts is that possession
    was for the purpose of trafficking. In this context, the trial judge was
    entitled to comment on the absence of evidence that could push that natural
    inference aside. We reject this ground of appeal as well.

[4]

The verdict was not unreasonable. There was ample evidence to support
    the trial judges conclusion that the only reasonable inference was that the
    appellant possessed the cocaine for the purpose of trafficking.

[5]

The appeal is therefore dismissed.

K. Feldman J.A.

David M. Paciocco J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mannella, 2019 ONCA 136

DATE: 20190221

DOCKET: C63694

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Mannella

Appellant

Anthony Mannella, appearing in person

Amy Ohler, duty counsel

Andreea Baiasu, for the respondent

Heard: February 13, 2019

On appeal from the conviction entered on August 24, 2016
    and the sentence imposed on April 13, 2017 by Justice B. Fitzpatrick of the Superior
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction for assault causing bodily harm. He
    advances three grounds of appeal.

[2]

First, the appellant contends that the trial judge pre-judged his case
    because of his previous conviction, many years earlier, for murder in a
    domestic context.

[3]

There is no basis for this submission. Although the previous domestic
    murder was mentioned at the trial, it was introduced by defence counsel in the
    cross-examination of the accused. The Crown referred to it in an entirely
    appropriate fashion in his cross-examination of the appellant. Moreover, it is
    clear from the trial judges detailed reasons that he did not base the
    conviction, in any way, on the appellants bad character or criminal record.

[4]

Second, the appellant submits that the trial judge erred by believing
    the complainant, especially since she stood to potentially gain financially
    (e.g. she could stay in the house) if the appellant was convicted.

[5]

We disagree. The trial judge provided a careful analysis of the
    complainants testimony. He was aware of and addressed inconsistencies in her
    testimony and a potential motive to lie. In the end, he believed her
    description of the appellants attack on her. He was entitled to do so.

[6]

Third, the appellant says that the trial judge did not take sufficient
    account of the absence of his DNA on the hammer and on the complainant.

[7]

We do not accept this submission. The defence did not request forensic
    evidence and such evidence would not have been determinative against the backdrop
    of the complainants testimony about the attack which the trial judge accepted.

[8]

The conviction appeal is dismissed. The sentence appeal is dismissed as
    moot.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Markos, 2019 ONCA 80

DATE: 20190206

DOCKET: C63505 & C63639

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Haytham Markos

Appellant

Peter Brauti and Joseph Wilkinson, for the appellant

Jennifer Epstein, for the respondent

Heard: December 17, 2018

On appeal from the conviction entered on January 10, 2017
    and the sentence imposed on March 24, 2017 by Justice Edward M. Morgan of the Superior
    Court of Justice.

REASONS FOR DECISION

I.

OVERVIEW

[1]

Late on the afternoon of April 6, 2016, the appellant, Haytham Markos,
    was driving a motorcycle northbound on Yonge Street in Toronto. He collided
    with a southbound SUV that was turning left at the intersection of Yonge Street
    and Pleasant Boulevard. As a result of that collision, Mr. Markos was ejected
    from his motorcycle which, in turn, struck and seriously injured a pedestrian on
    the sidewalk, Ms. Dorrianne Armstrong-Sears.

[2]

Mr. Markos was charged with dangerous driving causing bodily harm and
    criminal negligence causing bodily harm. The trial judge convicted Mr. Markos of
    dangerous driving causing bodily harm but acquitted him on the other count.

[3]

The trial judge sentenced Mr. Markos to 12 months in custody, followed
    by two years probation. One term of the probation order was that Mr. Markos
    take driving lessons as required and approved by his probation officer. As
    well, the trial judge prohibited Mr. Markos from driving a motorcycle for a
    period of five years.

[4]

Mr. Markos appeals both his conviction and sentence.

[5]

The Crown appeals from part of the sentence, submitting that the trial
    judge was not permitted to limit the driving prohibition to only motorcycles or
    include as a term of probation the requirement that Mr. Markos take driving
    lessons.

II.

CONVICTION APPEAL

[6]

Mr. Markos submits that his conviction should be set aside for two
    reasons: (i) the verdict was unreasonable; and (ii) the trial judge erred in
    relying on expert evidence that exceeded its proper scope and was wrong.

A.

Unreasonable
    verdict

[7]

Mr. Markos argues that the evidence could not reasonably support the
    conclusion that his driving was dangerous, specifically that he sped up to pass
    cars and weaved in between them. Mr. Markos contends that the evidence,
    including the dash-cam video, supported no other conclusion than that he drove
    completely reasonably and within the norm in the circumstances.

[8]

In support of that submission, Mr. Markos alleges the trial judge made several
    errors when assessing the evidence: (i) the trial judge placed too much
    emphasis on the consequences and cause of the accident; (ii) he failed to
    address the
mens rea
required for the offence of dangerous driving;
    (iii) there was no support in the evidence that Mr. Markos performed a
    whip-around pass; and (iv) he misapprehended the evidence of Jeff Elliott
    about whether he braked when he saw the left-turning SUV.

[9]

We are not persuaded by these submissions. The trial judges findings of
    fact found in paras. 40 through 43 of his reasons disclose that his analysis
    squarely focused on the manner of Mr. Markos driving, not on its consequences
    or the cause of those consequences:
R. v. Romano
, 2017 ONCA 837, 41
    C.R. (7th) 305, at para. 68. Ample evidence supported those findings,
    especially the dash-cam video, which showed that Mr. Markos was driving
    substantially faster than the rest of the traffic and did engage in
    whip-around passes, weaving amongst the traffic as he approached the intersection,
    with his vision of the on-coming southbound traffic partially blocked by a van in
    the northbound passing lane.

[10]

Nor
    are we persuaded that the trial judge failed to address the
mens rea
element of the offence of dangerous driving, namely that the degree of care
    exercised by the appellant was a marked departure from the standard of care
    that a reasonable person would observe in the circumstances:
R. v. Roy
,
    2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 28 and 36. As with the
actus
    reus
of the offence, the focus in assessing the
mens rea
must be
    a meaningful inquiry into the manner of driving:
Romano
, at para. 69.

[11]

The
    trial judge engaged in the inquiry mandated by para. 36 of
Roy,
explaining at
paras. 41 through 43 of
    his reasons:

(i) that a reasonable person
    would have foreseen the risk and taken steps to avoid it  i.e. the left-hand
    turn conducted by the SUV did not depart from the standard range of prudent
    driving and the other northbound vehicles were travelling in a manner that gave
    them adequate time to allow the left-hand turn; and

(ii) why the appellants
    failure to foresee the risk and take steps to avoid it was a marked departure
    from the standard of care expected of a reasonable person in the circumstances
     i.e., Mr. Markos approached the intersection at too high a speed and at too
    awkward an angle to see the left-hand turning SUV in time and he made a
    dangerous maneuver in speeding up to pass the cars, moving substantially faster
    than the flow of traffic in a way that was highly risky given the traffic flow
    on Yonge Street.

[12]

The
    trial judge did misstate the evidence of Mr. Elliott when he wrote that Mr. Elliott
     a north-bound driver  applied his brakes to slow down and allow the
    left-turning south-bound SUV to turn: at paras. 14 and 15. Mr. Elliott had
    testified that the SUV turned in front of him all of a sudden and had he not
    been driving very slowly, he would have hit the SUV. We did not regard that
    misapprehension as materially affecting the verdict. The trial judge did not
    rely on whether Mr. Elliott braked or not; he focused on Mr. Elliotts speed
    relative to the other traffic at the time of the collision. At para. 42, the
    trial judge wrote that the northbound vehicles who were not going excessively
    faster than the speed limit had adequate time to allow [the SUV] to make his
    turn. That finding was consistent with the evidence given by Mr. Elliott and
    borne out by the sequence of events recorded by the dash-cam video.

B.

Relying on inadmissible and incorrect expert evidence

[13]

Officer
    Chin was qualified as an expert in collision reconstruction, including in the
    area of speed determination. He calculated the speed of the motorcycle at the
    time of collision to fall in the range of 56 to 87 km/hr. In deriving that
    range, he took into account the gear in which the motorcycle was found
    following the collision and the location of the needle on the tachometer, and
    then applied a shift-point methodology.

[14]

The
    appellant submits that the trial judge made several errors regarding Officer
    Chins evidence.

First error: Permitting Officer Chin to testify on a subject for which he
    was not qualified

[15]

At
    the hearing of the appeal, the appellant suggested that Officer Chin was not
    qualified to give evidence regarding the shift-point methodology for
    calculating motorcycle speeds. We give no effect to this argument. At trial, the
    defence did not cross-examine Officer Chin on his qualifications nor did the defence
    oppose the qualification of Officer Chin to give opinion evidence on
    calculating the speed of the motorcycle at the time of the collision.

Second error: Admitting evidence beyond scope of Officer Chins expertise

[16]

In
    his factum, Mr. Markos contends that the trial judge erred by permitting
    Officer Chin to give evidence that went beyond the scope of his expertise and,
    therefore, was inadmissible.

[17]

The
    appellant points to the evidence Officer Chin gave about why he discounted the
    lowest speed of 56 km/hr derived using the shift-point methodology. In chief,
    Officer Chin testified that he did so because the lowest speed was not
    consistent with the damage he observed to the SUV and motorcycle. He then went
    on to state that the lower speed was not consistent with respect to the
    injuries sustained by Ms. Sears and to Mr. Markos. The appellant submits that
    this evidence was inadmissible because it went beyond the boundary of Officer
    Chins expertise and the trial judge erred by taking it into account.

[18]

We
    do not give effect to this submission. First, at trial defence counsel did not object
    to that evidence. Second, in the course of cross-examination, defence counsel posed
    several questions to Officer Chin challenging his rejection of the lower speed in
    part on the basis of the evidence the appellant now contends was inadmissible. Finally,
    the trial judge made no direct reference in his reasons to the evidence now
    impugned by the appellant. His reasons disclose that he relied on a broad range
    of evidence to conclude that Mr. Markos was driving substantially faster than
    the rest of the traffic and considerably over the speed limit, specifically [t]he
    witness testimony and agreed statements, together with the video evidence from
    the dash cam: at para. 40.

Third error: Officer Chins speed
    calculations contained a critical error

[19]

At
    the hearing of the appeal, the appellant argued that the speed calculations
    Officer Chin derived using the shift-point methodology were clearly wrong because
    the officer misunderstood the methodology. Consequently, the trial judge erred
    in accepting calculations based on a critical error.

[20]

For
    several reasons we are not persuaded by this submission.

[21]

Defence
    counsel cross-examined Officer Chin on his use of the shift-point methodology,
    including his reliance on an article by Albert Baxter entitled
Motorcycle
    Accident Investigation, 2
nd
Edition
. That
    cross-examination proceeded on the basis that Officer Chin had correctly
    applied the shift-point methodology not, as appeal counsel now suggests, that
    he misapplied the methodology.

[22]

As
    well, defence counsel did not adduce expert evidence at trial calling into
    question Officer Chins calculations. Nor did the appellant seek to adduce any
    such evidence on appeal by way of fresh evidence. In any event, the trial judge
    did not make a finding about the specific speed Mr. Markos was travelling at
    the time of the collision. Instead, as noted, the trial judge relied on a broad
    range of other evidence to find that Mr. Markos was driving substantially
    faster than the rest of the traffic and considerably over the speed limit.

C.

Conclusion

[23]

For
    these reasons, we dismiss the appeal from conviction.

III.

SENTENCE APPEALS

A.

The
    appellants sentence appeal

[24]

Mr.
    Markos submits that the trial judge committed several errors in principle in
    imposing the sentence he did: (i) he treated the appellants maintenance of his
    innocence in a pre-sentence report as an aggravating factor; (ii) the sentence
    imposed was out of the range for similar offenders; (iii) it was harsh and
    excessive for this offender; and (iv) the five-year driving prohibition was
    harsh and unreasonable.

[25]

We
    do not accept these submissions. The trial judge accepted as genuine Mr.
    Markos statement that he was sorry for Ms. Sears suffering. At the same time,
    the trial judge concluded that Mr. Markos lacked insight into the nature of his
    actions, noting that given the events recorded on the dash-cam video Mr. Markos
    has much to contemplate. The trial judge also expressed surprise that whereas
    at trial Mr. Markos had testified that he had no plans ever to ride a
    motorcycle again, in the pre-sentence report he stated that he had just
    purchased a new motorcycle. The trial judge was entitled to take into account
    the lack of insight by Mr. Markos into the risk to the community presented by
    his manner of driving:
R. v. Hawley
, 2016 ONCA 143, at para. 5.

[26]

This
    court has identified sentences for dangerous driving causing bodily injury as
    normally ranging up to two years less a day, with more substantial sentences
    available in certain cases:
R. v. Rawn
, 2012 ONCA 487, 294 O.A.C. 261,
    at para. 43. In the present case, as depicted in the dash-cam video, Mr. Markos
    drove his motorcycle in a dangerous manner, in heavy traffic, in a dense urban
    area, where the street was lined with retail outlets that generate pedestrian
    traffic. His dangerous driving caused Ms. Sears very serious injuries. We see
    nothing harsh or excessive with the 12-month custodial sentence, followed by
    two years probation, imposed by the trial judge. The sentence was fit.

[27]

Pursuant
    to s. 259(2)(b) of the
Criminal Code
, the trial judge imposed a
    five-year prohibition on driving a motorcycle for a period of five years from
    the date of sentencing: at para. 22.

[28]

A
    driving prohibition imposed under s. 259(2)(b) commences at the end of the
    period of imprisonment, not on the date of sentencing:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 109. The prohibition imposed by the
    sentencing judge was also a condition of the appellants bail pending appeal.
    During the approximately 22 months from the date of sentencing to the date of
    the disposition of this appeal, the appellant has been subject to a partial
    driving prohibition. Even though the prohibition on driving was partial,
    limited to only motorcycles, we accept the appellants submission that he
    should be given credit for it. Accordingly, we vary the driving prohibition to
    be one in respect of any motor vehicle for a period of 38 months following the
    appellants term of imprisonment.

B.

The
    Crowns sentence appeal

[29]

The
    Crown submits that the trial judge erred by limiting the driving prohibition to
    only motorcycles as such a limitation is not permitted by s. 259(2) of the
Criminal
    Code
. The Crown also argues that the term of probation requiring Mr.
    Markos to take driving lessons was imposed in error.

[30]

Mr.
    Markos concedes both points.

IV.

DISPOSITION

[31]

For
    the reasons set out above, we dismiss Mr. Markos appeal from conviction. We
    grant him leave to appeal sentence, but dismiss his sentence appeal save for
    the variation in the calculation of the driving prohibition. We allow the
    Crowns sentence appeal. Consequently, we vary the sentence as follows: (i) we
    delete from the terms of probation the requirement that Mr. Markos take
    driving lessons, including motorcycle driving lessons, as required and approved
    by the probation officer; and (ii) we vary the prohibition order made under s.
    259(2)(b) of the
Criminal Code
to prohibit Mr. Markos from operating a
    motor vehicle on any street, road, highway or other public place for a period
    of 38 months following his term of imprisonment.

"J.C. MacPherson J.A."
"G. Pardu J.A."
"David Brown J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntyre, 2019 ONCA 161

DATE: 20190228

DOCKET: C65049

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leon McIntyre

Appellant

Breana Vandebeek and Christopher Rudnicki, for the
    appellant

Carmen Elmasry, for the respondent

Heard: February 25, 2019

On appeal from the sentence imposed on December 2, 2016 by
    Justice S. Akhtar of the Superior Court of Justice, with reasons report at 2016
    ONSC 7498.

REASONS FOR DECISION

[1]

This is a sentence appeal.  The appellant received a global sentence
    of six years for a number of offences including robbery with a restricted
    firearm.  That offence carries a minimum sentence of five years.

[2]

At the end of oral argument, the court advised counsel that the appeal
    would be dismissed with reasons to follow.  These are our reasons.

[3]

We need not set out the facts in any detail.  The appellant and another
    person, a young offender, accosted the victim outside of his home on an early
    summer evening.  They had decided to steal the victims car.

[4]

The victim was working on the car when he was approached by the
    appellant and his accomplice.  The victims young son was with him.

[5]

The appellant was armed with a loaded handgun.  A struggle ensued.  The
    appellant pointed the loaded handgun at the victim.  He grabbed the car keys
    and struck him across the face with the gun knocking the victim unconscious for
    a few moments.  The victim needed 13 stitches to close the head injury and
    another 2 to his hand.

[6]

The appellant and the accomplice took the victims car and fled the
    scene.  They were arrested nearby after a high speed chase.

[7]

At the time of this incident, the appellant was under a court order
    prohibiting him from possessing any firearms.

[8]

The appellant advances essentially three grounds of appeal.  He argues
    that the mandatory five year minimum in s. 344(1)(a)(i) violates s. 12 of the
Charter
and should be struck down.  The appellant also submits that the trial judge
    erred in failing to give the appellant enhanced credit for his pre-sentence
    custody in light of the conditions in the detention centre.  Finally, the
    appellant submits that the trial judge erred in principle by failing to give
    adequate weight to the personal circumstances of the appellant in the years
    after he came to Canada and in failing to give adequate effect to the restraint
    principle as applied to the sentencing of young first offenders.

The Constitutional Claim

[9]

The appellant does not argue that the five year minimum sentence is
    grossly disproportionate as applied to him.  He submits, however, that it is
    grossly disproportionate having regard to reasonable hypotheticals.

[10]

The
    case law is against the appellants constitutional claim.  In
R. v.
    MacDonald
[1998] O.J. No. 2990, this court upheld the mandatory four year
    minimum sentence on a charge of robbery with a firearm (s. 344(1)(a.1)).  In
    our view, the analysis in
MacDonald
is equally applicable to the five
    year minimum imposed for robbery with a prohibited or restricted firearm under
    s. 344(1)(a)(i).

[11]

The
    holding in
MacDonald
is consistent with case law from other provinces
    involving minimum penalties for the commission of robbery with a firearm: see
R.
    v. McIvor
, 2018 MBCA 29;
R. v. LaPierre
(1998) 123 C.C.C. (3
rd
)
    332 (QCA);
R. v. Wust
(1998) 125 C.C.C. (3rd) 43 (BCCA).
McIvor
is particularly germane as it applies the reasoning in
MacDonald
to
    uphold the five year mandatory minimum for the offence of robbery with a
    restricted firearm.

[12]

The
    appellant submits that this court should not follow
MacDonald
because
MacDonald
was decided at a time when the reasonable hypothetical methodology used to
    analyze a s. 12 claim was undeveloped.  The appellant submits that more recent
    Supreme Court of Canada jurisprudence, and in particular
R. v. Nur
2015 SCC 15 provides a clearer indication of how reasonable hypotheticals
    should be employed in the s. 12 analysis.

[13]

We
    do not read
Nur
as changing the reasonable hypothetical analysis in
    any way.  Indeed, Chief Justice McLachlan for the majority was at some pains to
    make it clear that the s. 12 inquiry based on reasonable hypothetical was well
    entrenched in that courts case law and in her view, workable as it stood: see
Nur
at para. 47-65.
Nur
confirmed the reasonable hypothetical approach
    developed in the previous case law.  This court followed that approach in
MacDonald
:
    at para. 16.

[14]

Next,
    the appellant argues that
MacDonald
is distinguishable because
MacDonald
upheld the constitutionality of the four year minimum based on the availability
    of credit for pre-sentence custody at a 2:1 ratio in appropriate cases to
    reduce the mandatory minimum.  The appellant submits that 2:1 credit is no longer
    available for pre-trial custody rendering the result in
MacDonald
open
    to doubt.

[15]

MacDonald
did not turn on the quantum of the credit available for pre-trial custody.  The
    issue in
MacDonald
as it related to pre-trial custody was whether any
    credit could be given for pre-trial custody if that credit would reduce a
    sentence below the mandatory minimum.  Some courts had held that no credit
    could be given.  In
MacDonald
, this court acknowledged that if no
    credit could be given for pre-sentence custody, the mandatory minimum penalties
    for robbery with a firearm were in constitutional jeopardy.  However, the court
    held that credit be given for pre-trial custody under the generally applicable
    provisions in respect of pre-trial custody found in the
Criminal Code
even if that credit reduced the sentence below the mandatory minimum: see
MacDonald
at para. 65, 83.  The constitutional outcome in
MacDonald
did not turn
    on the availability of 2:1 credit for pre-trial custody.

[16]

The
    appellant cannot distinguish
MacDonald
.  In our view, the analysis in
MacDonald
applies here.  Like the Manitoba Court of Appeal in
McIvor
, we are
    satisfied that the minimum penalty in s. 344(1)(a)(i) is constitutional.

Did the Trial Judge Err in Failing to Give Additional Credit
    for Pre-Sentence Custody?

[17]

The
    trial judge gave the appellant credit on a 1.5:1 ratio for his lengthy
    pre-sentence incarceration.  The appellant argued that in the circumstances in
    which he was incarcerated, he should receive enhanced credit.  The appellant
    pointed to the number of lock downs at the institution and the numerous
    occasions on which inmates were triple bunked.

[18]

This
    argument was made before the trial judge.  The trial judge accurately
    summarized the evidence relating to the jail conditions and acknowledged that
    in law he could give enhanced credit for harsh conditions during pre-trial
    custody.

[19]

In
    declining to give enhanced credit, the trial judge described the actual impact
    of the conditions on the appellant as unclear on the evidence.  He also noted
    that the appellant had compiled a significant number of misconduct findings
    while in custody awaiting trial.  The trial judge ultimately found that having
    regard to all of the factors relevant to the appellants pre-sentence
    incarceration, enhanced credit was not appropriate.

[20]

We
    see no reason to interfere with the trial judges exercise of his discretion.
    The trial judge was alert to the evidence and the applicable legal principle.
    The fact that he was not prepared to accept the appellants assertions
    concerning the impact of the conditions on him at face value is no reason to
    decline to defer to the trial judges assessment.

Did the Trial Judge Err in Failing to Consider Certain
    Mitigating Factors on Sentence?

[21]

The
    appellant was just over 18 years old when he committed these offences.  He had
    no prior criminal record as an adult.  The offences were, however, very
    serious.  The robbery involved significant violence and the use and possession
    of a loaded hand gun.  It is also significant that the appellant was under a
    weapons prohibition at the time of the offence.  That prohibition had been
    imposed only two months before the appellant committed these offences.

[22]

The
    trial judge recognized that in sentencing young offenders, individual
    deterrence and rehabilitation are the primary objectives.  He also recognized,
    however, as this court has repeatedly held, that crimes involving serious
    violence require emphasis on denunciation and general deterrence no matter the
    age of the offender.  Nothing in the trial judges reasons suggests a failure
    to take the mitigating factors stressed by the appellant in this court into
    account.  Nor is the total sentence imposed of six years manifestly excessive.
    We are not satisfied that the trial judge fell into any error in principle in
    imposing the sentence he did.

[23]

The
    appeal is dismissed.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moore, 2019 ONCA 122

DATE: 20190215

DOCKET: C64466

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clarke Moore

Appellant

Ian Smith as duty counsel

Andreea Baiasu, for the respondent

Heard: February 14, 2019

On appeal from the conviction entered and the sentence
imposed on September 13, 2017 by Justice John Skowronski of the Ontario Court
of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks a reduction of his two year six month sentence on
top of pre-trial custody for breach and enter of a commercial premises, robbery
of a convenience store and other counts of theft and failure to comply.

[2]

We are satisfied from the record that there was no joint submission. In
our view, the sentence imposed was entirely fit, in particular given the
circumstances of the robbery and the appellants lengthy criminal record.

[3]

The Crown concedes that the victim surcharge must be set aside.

[4]

Appeal allowed but only to set aside the victim surcharge. Appeal otherwise
dismissed.


WARNING

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

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

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

(a)     any
    of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Palmer-Coke, 2019 ONCA 106

DATE: 20190214

DOCKET: C64308

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Denzel Palmer-Coke

Appellant

Faisal Mirza, for the appellant

Candice Suter, for the respondent

Heard: January 30, 2019

On appeal from the convictions entered on July 25, 2017
    by Justice Susan G. Himel of the Superior Court of Justice, with reasons
    reported at 2017 ONSC 4501.

Nordheimer J.A.:

[1]

Mr. Palmer-Coke appeals from his convictions, after a judge alone trial,
    of one count of sexual assault causing bodily harm and one count of unlawful
    confinement.

[2]

There does not appear to be any dispute regarding the basic facts that
    underlie the offences charged, although there is certainly a dispute as to what
    led up to the events and the context in which they occurred. There was a
    serious issue regarding the credibility of the complainant, especially
    regarding her memory of the events in question. However, as will become
    apparent, these issues became less serious in terms of the ultimate resolution
    of the charges because of various admissions made by the appellant.

Background

[3]

The basic facts are as follows. On Saturday July 21, 2012, the
    complainant travelled from St. Catharines to Toronto to attend a bachelorette
    party with several girlfriends. They were staying overnight at a hotel in two
    adjoining rooms. The complainant was 24 years old. The group went to a
    nightclub/bar just before midnight. The complainant returned by herself to the
    hotel alone around 1:30 a.m. in a cab. There is no dispute that the complainant
    was intoxicated.

[4]

The complainant got out of the cab and walked into the hotel alone. She
    did not recall talking to anyone. She said she went right to her room. She did
    not see anyone around her. However, video surveillance from the hotel showed
    her walking into the hotel, then touching the appellant, and walking into the
    elevator with him. They were holding each other.

[5]

The complainant testified that she went to her room on the sixth floor.
    When she entered room 608 using her card key, she noticed that none of her
    friends were there. She checked the adjoining room 607. Then she turned around
    and saw a man standing at the door between the adjoining rooms. She was shocked
    and asked what he was doing there. She recalled him cursing her. There is no
    dispute that this male was the appellant.

[6]

The complainant gave evidence that the appellant came further into the
    room and pushed her onto the bed closest to the window in the adjoining room.
    Then he straddled her with his knees on the edge of the bed. He ripped off her
    underwear, tried to pull the top of her dress down, and touched her near her
    vagina. She said she does not recall what he said but she screamed, fought back,
    and tried to push him off. As a result, he punched her in the face, injuring
    her eye and facial area. She then kicked him and managed to briefly break free.
    The appellant then pulled her back by the hair and punched her in the face,
    causing her to fall to the ground and hit her head. Once she got up, he came
    around in front of her and punched her again in the face. She fought him off by
    kicking again and, this time, was able to run out of the room into the hallway.
    Once in the hallway, she ran into another guest of the hotel and collapsed into
    his arms.

[7]

According to a friend, the complainant called the telephone of the
    friends boyfriend at approximately 1:30 a.m. The friend answered. The
    complainant said she was at the hotel. The friend knew that the complainant was
    in Toronto at a bachelorette party but did not know the details. The friend
    said she could hear the complainant speaking to someone and say, "you
    should leave now" and the male person said, "Why are you being so
    rude?" She heard the complainant say you can take the bottle.  She then
    heard a scuffle and the complainant say What the fuck? three times and the
    telephone went dead.

[8]

Another hotel guest had heard a commotion coming from the complainants
    room. She alerted hotel security who in turn alerted the police. The police
    arrived thereafter and commenced their investigation.

[9]

The appellant elected to give evidence at the trial. He has no criminal
    record and resides with his mother. The appellant was 19 years old at the time.
    The appellant was staying at the hotel while he attended a friends birthday
    party.

[10]

The
    appellant said he entered the hotel and was walking into the lobby when a girl
    bumped into him. There is no dispute that this girl is the complainant. He
    asked if she was all right and she said yes. Then he said she gave him her hotel
    key and had her arm wrapped around his arm. He walked her to the elevator and
    they were talking as they walked hand in hand. It was 1:29 a.m. She pushed the
    elevator button and they entered the elevator. They got off the elevator and he
    walked her to her room. He passed her the hotel key and she opened the door and
    said, "have a good night." Then she said, "No, come in" and
    he said "o.k."

[11]

The
    appellant testified that he walked into the room and she walked over to him. He
    said that she sat on the bed and motioned to him to come over and sit down. He
    walked over and sat beside her. Kissing and fondling ensued. The complainant raised
    her hips and her dress. The appellant said he was by her vagina with her dress
    raised when he tore her underwear. He said it was hard to do. When asked why he
    did so, he said "I thought that's how people had sex. I saw it in a dirty
    movie. I never had sex before. I was a virgin and I didn't know anything."

[12]

Immediately
    after this, the complainant started moving away from him and towards the
    headboard. She said, "who are you?" and "I don't know you."
    The appellant says he was shaken and jumped back. He said that he tried to talk
    to her to calm her down, but she got off the bed and crouched between the two
    beds. The appellant said he was standing by the edge of the bed and was trying
    to talk to her. He said he did not know what she was doing but that she was on
    the phone. The appellant said, "please calm down". Then he walked
    over to her to get the telephone and she started hitting him with open hands
    and kicking him. He said that he tried to get her to stop and to talk to him.
    She screamed and continued to hit and kick him. The appellant then punched the
    complainant twice and she fell back. The appellant said he started walking
    toward the door of the room when the complainant ran past him and out the door.
    The appellant then left the hotel. He was contacted by police a few days later
    and was eventually arrested and charged.

Analysis

[13]

Against
    that backdrop, I turn to the central issues raised on this appeal. While there
    were 11 grounds of appeal set out in the Notice of Appeal, at the hearing counsel
    distilled those grounds down to the following four:

1.

The trial judge erred in admitting certain expert evidence from the
    toxicologist.

2.

The trial judge erred in admitting hearsay evidence arising from the
    telephone call between the complainant and her friend.

3.

The trial judge erred in finding that the appellant had fabricated his
    evidence.

4.

The trial judge erred in convicting the appellant of unlawful
    confinement.

[14]

I
    will deal with each of them in turn.

(1)

The toxicologists evidence

[15]

The
    Crown called Robert Langille from the Centre of Forensic Sciences to give
    evidence regarding the level of intoxication of the complainant at the time of
    the events. The appellant complains with respect to two aspects of Mr.
    Langilles evidence. One involves Mr. Langilles commentary on the movement of
    the complainant as seen on the hotel security video in terms of evidencing her
    intoxication. The other is Mr. Langilles evidence that significant stresses produce
    adrenalin in the body and adrenalin increases your level of alertness and
    awareness for a short period of time. This evidence was directed at explaining
    why the complainant, while admittedly intoxicated and with limited memories of
    the events in question, might remember the specifics of the actual sexual
    assault.

[16]

In
    my view, the appellants complaints are well founded. On the first point, there
    was no need for the toxicologists commentary on the security video. The trier
    of fact, in this case the trial judge, was entirely capable of reviewing the
    video and making her own determinations as to what the video showed regarding
    the complainants movements as they related to her level of intoxication. The
    experts evidence was not necessary for that purpose and therefore did not meet
    the second criterion for the admission of expert evidence set out in
R. v.
    Mohan
, [1994] 2 S.C.R. 9, at p. 20.

[17]

On
    the second point, there was no direct evidence that Mr. Langille had expertise
    in the area of memory. Indeed, the word memory does not appear anywhere in
    his
curriculum vitae
nor does it appear to be encapsulated in any of
    the courses, seminars, and other experience therein referenced. Further, it is
    not clear that Crown counsel sought to have Mr. Langille so qualified. In
    seeking to qualify him, Crown counsel said:

Your Honour with respect to Dr.
    Langille, Id like him to be qualified as an expert in the detection,
    pharmacology and toxicology of drugs, alcohol and poisons and the physiological
    and behavioural effects of alcohol and drugs on the human body.

[18]

I
    understand that Mr. Langille did give some evidence regarding memory during the
voir dire
on his qualifications. Crown counsel failed, however, to
    identify that as one of the areas that she was seeking to qualify him as an
    expert. Further the trial judge did not expressly qualify Mr. Langille in this
    area. Rather, in ruling on his qualifications, the trial judge said:

I am satisfied that he is an
    expert in the detection, pharmacology and toxicology of drugs, alcohol and
    poisons, and in the physiological and behavioural effects of alcohol and drugs
    on the human body and that he may give opinion evidence in this regard.

[19]

I
    would reject any suggestion that memory, and impacts on memory, are embraced
    within the reference to physiological and behavioural effects of alcohol and
    drugs on the human body. Memory is a distinct subject that is usually dealt
    with by neurologists, psychiatrists, or psychologists. Mr. Langille is none of
    those.

[20]

In
    any event, I cannot determine, on the record before us, whether Mr. Langille
    might have been properly qualified as an expert in memory nor is it necessary
    that I be able to do so. It is sufficient for me to say that Mr. Langille was
    not properly qualified as an expert in memory based on the record that was
    before the trial judge. The trial judge ought not to have permitted Mr.
    Langille to give the evidence that he did regarding memory and the effects that
    stress and adrenalin might have in terms of heightening memory.

[21]

I
    am aware that trial counsel did not maintain a specific objection to this
    evidence although she referenced it initially. That does not change the fact
    that the trial judge as gatekeeper had an independent obligation to ensure that
    the expert, in giving his evidence, stayed within his established area of
    expertise:
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330.

[22]

Notwithstanding
    that conclusion, however, this improperly admitted evidence did not weigh
    heavily on the ultimate conclusion regarding guilt, as I shall come to explain.
    It does not therefore undermine the trial judges conclusion that a conviction
    was borne out on the evidence as a whole.

(2)

The hearsay issue

[23]

The
    appellant complains that the trial judge erred in admitting and relying on for
    its truth the statement that the complainants friend heard during the
    telephone conversation (to which I referred in para. 7 above), that the
    complainant asked the appellant to leave. I do not accept that the trial judge
    erred in this respect because I do not accept the fundamental point made by the
    appellant that this evidence was inadmissible hearsay. The friend was not
    repeating a fact that she was told by someone else. Rather, the friend was
    saying what she herself heard the complainant say. It was admitted to prove
    what the complainant said to the person she was talking to but not any fact
    contained in that statement. That is not hearsay.

[24]

The
    evidence was admissible as fact evidence. It was up to the trier of fact to
    weigh its probative value in conjunction with all of the other evidence, which
    the trial judge did. There is, however, no merit to the submission that the
    evidence ought not to have been admitted because it was hearsay that required
    the holding of a
voir dire
to determine whether it could be admitted
    under the principled exception to the hearsay rule.

(3)

Fabrication by the appellant

[25]

The
    submission on this point is included within a broader assertion that the trial
    judge applied unequal levels of scrutiny to the evidence led by the Crown as
    compared to the evidence of the appellant. It is also admitted that there is no
    express finding of fabrication made by the trial judge.

[26]

In
    my view, the latter admission is sufficient by itself to dispose of this ground
    of appeal. There is simply nothing in the trial judges reasons to suggest that
    she viewed the appellant as having fabricated his evidence or that she rejected
    his evidence on that basis. Rather, the trial judge pointed out, as she was
    entitled to do, that the appellant had given dramatically different versions of
    the events to the police than he gave when he was a witness at trial. That is
    not a finding equivalent to fabrication and ought not to be treated as such.

[27]

I
    would also reject the suggestion that the trial judge applied an unequal
    approach to the evidence. Nothing in the record establishes that suggestion
    which, as this court has noted in the past, is an extremely difficult position
    to make out:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at
    para. 59.

(4)

Unlawful confinement

[28]

The
    appellant submits that the conviction for unlawful confinement was improper in
    the circumstances of this case. I agree. The trial judge dealt with this issue
    in one sentence at the end of her reasons. She said:

He prevented her from leaving the
    room, grabbed her by the hair, pulled her back, striking her head, and made
    efforts to restrict her liberty.

[29]

The
    constituent elements of the offence of unlawful confinement are set out in
R.
    v. Pritchard
, 2008 SCC 59, [2008] 3 S.C.R. 195, where Binnie J. said, at
    para. 24:

The authorities establish that if
    for any significant period of time [the victim] was coercively restrained or
    directed contrary to her wishes, so that she could not move about according to
    her own inclination and desire, there was unlawful confinement within s. 279(2)
    [citations omitted].

[30]

The
    distinguishing element of a significant period of time was also addressed in
R.
    v. Rocheleau
, 2013 ONCA 679, 311 O.A.C. 295, where Tulloch J.A. noted in
    discussing this issue at para. 29:

On the facts as admitted in this
    case, there was domination and a coercive restraint of the victims of
    sufficient length to attract liability for confinement discrete from the
    liability for robbery. Nor, in my view, could the additional impact on the
    individual's freedom of movement and bodily integrity be seen as simply
    incidental to the robbery.

[31]

The
    opposite is true in this case, in my view. Here, the element of restraint that
    resulted from the appellant grabbing the complainant by her hair was momentary
    in nature. It was not for any significant period of time nor does the trial
    judge make any such finding. The conviction for unlawful confinement,
    therefore, cannot stand.

[32]

I
    would also note that, even if one could make out, on the facts of this case,
    that the restraint did involve a significant period of time, a conviction for
    unlawful confinement was not properly entered based on the principles set out
    in
R. v. Kienapple
, [1975] 1 S.C.R. 729. On that point, the circumstances
    of this case appear to be indistinguishable from those in
R. v. Alli
,
    1996 CanLII 363 (Ont. C.A.) where this court said:

We are, however, of the opinion
    that any confinement of the complainant formed an integral part of the
    convictions for sexual assault or assault
simpliciter
. By virtue of
    the principle enunciated in
R. v.
Kienapple
, 1974 CanLII 14
    (SCC), [1975] 1 S.C.R. 729, the conviction on the charge of unlawful
    confinement cannot stand. (See
R. v. D. (S.)
(1992), 1992 CanLII 7556
    (ON CA), 10 O.R. (3d) 402 (Ont. C.A.)).

[33]

In
    the same way in this case, the appellants grabbing of the complainants hair
    was clearly an integral part of the continuing sexual assault. There would thus
    be a sufficient factual nexus and a sufficient legal nexus between the offences
    to trigger the application of the
Kienapple
principle:
R. v. Prince
,
    [1986] 2 S.C.R. 480.

[34]

In
    the end result, I conclude that the trial judge erred in finding the appellant
    guilty of unlawful confinement in these circumstances. That conclusion does not
    affect the sentence imposed, however, since the 12 month sentence on the
    unlawful confinement conviction was made concurrent to the 15 month sentence on
    the sexual assault causing bodily harm conviction.

(5)

Summary

[35]

The
    conclusions on the first three grounds of appeal do not provide a basis to
    interfere with the conviction for sexual assault causing bodily harm. The
    conviction for unlawful confinement is a separate matter.

[36]

The
    evidence as a whole clearly establishes a basis for the conviction for sexual
    assault causing bodily harm. The appellant admits that he struck the
    complainant. The appellant admits that he tore her panties off as part of an
    intention to engage in sexual activity. The connection between the two events
    is sufficient to establish that the assault arose in a sexual context. The trial
    judge rejected the appellants explanation that the sexual component of the events
    was consensual. In light of the trial judges factual findings, a conviction
    for sexual assault causing bodily harm properly followed.

Conclusion

[37]

The
    appeal with respect to the conviction for sexual assault causing bodily harm is
    dismissed. The appeal with respect to the conviction for unlawful confinement
    is allowed, the conviction is set aside, and an acquittal is entered.

Released: February 14, 2019 K.F.

I.V.B. Nordheimer
    J.A.

I agree. K. Feldman
    J.A.

I agree. P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Porter, 2019 ONCA 114

DATE: 20190214

DOCKET: C65884

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roy Porter

Appellant

Scott Hutchison and Roy Porter, for the appellant

Luke Schwalm, for the respondent

Heard: February 12, 2019

On appeal from the conviction entered on April 20, 2018
and the sentence imposed on August 28, 2018 by Justice P.H. Marjoh Agro of the Ontario
Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We see no merit in the conviction appeal. The information was amended
during the trial and there is nothing before us to support the submission that
the amendment was improper.

[2]

We agree that the trial judge appears to have treated the appellant
lack of remorse as an aggravating factor. However, we are not persuaded that we
should interfere with the resulting sentence of one year imprisonment. As held
in
R. v. Lacasse
,
2015
SCC 64, it is open to an appellate court to uphold a fit sentence despite an
error of this nature. The appellant abused a position of trust and took
advantage of his very vulnerable cousin. The fraud was planned and carried out
over a lengthy period. A sentence of one year is entirely appropriate. See
R.
v. Mathur
, 2017 ONCA 403.

[3]

In our view, the trial judge did err by only giving the appellant six
months to pay the fine in lieu of forfeiture. We alter that term of the
sentence to give him two years.

[4]

Finally, it is conceded by the Crown that the victim fine surcharge must
be set aside.

[5]

Sentence appeal allowed but only to the extent ordered above. Conviction
appeal dismissed.