COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2018 ONCA 900

DATE: 20181113

DOCKET: C62181

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Nguyen

Appellant

Christopher Nguyen, in person

Danielle Robitaille, duty counsel

Hannah Freeman, for the Crown

Heard and released orally: November 6, 2018

REASON FOR DECISION

[1]

The appellant seeks leave to appeal from the decision of the summary conviction
    appeal judge Douglas J., which upheld the conviction based on the appellants
    guilty plea before Tetley J., and where Douglas J. refused to admit new
    evidence to set aside the plea.

[2]

We agree with the submission made by Ms. Robitaille and accepted by Ms.
    Freeman that the summary conviction appeal judge erred in law by applying the
Palmer
test in rejecting the affidavit of the applicant on his application to set
    aside his guilty plea. See
R. v. Rajaeefard
[1996] O.J. No. 108, at para
    3.

[3]

On that basis, we grant leave to appeal. However, on an examination of
    the record, including the detailed and extensive plea inquiry conducted by the
    original trial judge, both on the original plea and again on the motion to set
    aside the plea, it is clear that the appellant fully understood and agreed to
    the plea and to the underlying facts that were read in.

[4]

The applicant also submits that he had a misunderstanding regarding
    whether he would be subject to a mandatory weapons prohibition if he were
    granted an absolute discharge based on an email from his second lawyer.
    However, the record shows that Tetley J. made it clear on the second occasion,
    as did the appellants lawyer in an email before the first plea that the weapons
    prohibition would be mandatory, including if an absolute discharge were given.

[5]

In the result, while leave to appeal is granted, the appeal is
    dismissed.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Onasanya, 2018 ONCA 932

DATE: 20181120

DOCKET: C64229

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Oluyombo Onasanya

Appellant

Maurizio Stellato, for the Appellant

Catherine
    Weiler, for the Respondent

Heard and released orally: November 9, 2018

On appeal from the conviction entered by Justice Riun
    Shandler of the Ontario Court of Justice on March 30, 2017.

REASONS FOR DECISION

OVERVIEW

[1]

Following a trial in the Ontario Court of Justice, the appellant was
    convicted of one count of fraud over $5,000 and one count of the possession of
    property obtained by crime exceeding $5,000. The appellant appeals his
    convictions.

[2]

At the conclusion of the appeal hearing, we dismissed the appellants
    appeal, with reasons to follow. These are those reasons.

FACTS

[3]

The evidence at trial consisted of an agreed statement of facts and the
    evidence of the appellant.

[4]

The appellant is 26 years old. He came to Canada from Nigeria when he
    was 17 years old. He completed three years of a business and commerce program
    at York University. Then, beginning in September 2014, the appellant pursued a
    course in business management financial services at Humber College.

[5]

It was agreed at trial that: (i) in late May 2015, the appellant opened
    business and personal accounts at a branch of the Royal Bank of Canada (RBC);
    (ii) the appellant opened the accounts in his own name; and (iii) on the
    application, he indicated that he was the sole proprietor of a business
    operating under the business name KELLYDICKSON & CO.

[6]

There was no dispute that on June 5, 2015, the sum of $30,999.77 was
    deposited by way of several electronic funds transfers into the business
    account and that a further $50,000 was deposited in the same way on June 12,
    2015.

[7]

Both amounts originated from a personal securities account in the name
    of Kelly Dickson at Manulife Securities (Manulife). Ms. Dickson did not
    authorize the transfer of the funds into the appellants business account. Ms.
    Dickson had unknowingly succumbed to identity theft when she had attempted to
    open documents referred to in an email ostensibly sent by her real estate
    broker, but actually sent by a person who had hacked into her brokers email
    account.

[8]

As a result of the theft of Ms. Dicksons identity, Manulife received
    emails from Ms. Dicksons hacked email account directing that monies in her
    RRSP account be transferred to Kelly Dickson at the appellants RBC business
    account. Manulife acted on those emails and made the transfers. None of the transfers
    were authorized by Ms. Dickson.

[9]

Between June 8 and 18, 2015, the appellants business account saw
    numerous ATM withdrawals, as well as electronic transfers of funds into his
    personal account. In addition, debit transactions for various retail purchases
    were charged against both accounts. As of June 18, 2015, when the accounts were
    frozen, the balance in the appellants business account was $10,033.94 and the
    balance in his personal account was $957.29. The unauthorized transfers from
    Manulife were the only source of the funds that went into the appellants
    accounts.

[10]

At
    trial, the appellant testified that in 2015, as a result of an on-line job
    search, he accepted an offer of employment from a company in Dubai to manage a
    computer business it wanted to set up in Toronto. The appellant could not
    recall the name of the person in Dubai with whom he dealt. Also, the appellant
    said he did not have copies of any texts with the person in Dubai or the number
    he used to reach that person.

[11]

According
    to the appellant, following the instructions of the person in Dubai, he registered
    the business name KELLYDICKSON & CO. and opened the RBC accounts. The
    appellant sent the person in Dubai a void cheque for the business account so
    that money could be sent to it. According to the appellant, the person in Dubai
    advised he had a business partner in Canada who would purchase inventory and
    set up a store.

[12]

The
    appellant testified that he did not have any involvement with arranging for the
    deposit of money from Manulife into his business account. He stated that he had
    no contact with Ms. Dickson, her real estate broker, or anyone at Manulife.

[13]

The
    appellant also gave evidence that he did not keep any of the money transferred
    into the RBC accounts. Instead, he gave all of the withdrawn funds to   Nazir,
    the business partner of the person in Dubai, at meetings in public places. He
    also gave Nazir the debit card for the accounts for a period of a day. The
    appellant thought Nazir was using the money to purchase computers. He did not
    believe the money was stolen. The appellant denied using any of the funds to
    make personal purchases.

THE CONVICTIONS

[14]

The
    appellant was charged with four counts of fraud in respect of the June 5, 2015
    transfers, totaling $30,999.77, from Manulife to his business account and ten
    counts of fraud in respect of the June 12 transfers totaling $50,000.

[15]

The
    trial judge acquitted the appellant on the counts relating to the June 5
    deposits. Although he did not accept the appellants entire account of events,
    the trial judge had a reasonable doubt as to whether the appellant knew at the
    start that he was becoming involved in a fraudulent enterprise.

[16]

However,
    the trial judge found that the state of the appellants knowledge changed. The
    nature of the deposits into the business account, the frequent small cash
    withdrawals, the appellants contention that he handed over cash to a person
    whom he only knew by his first name, and the use of the withdrawals to make
    purchases unrelated to the business were inconsistent with any legitimate
    business purpose.

[17]

As
    well, the trial judge rejected the appellants evidence that the debit card
    purchases were made by or on behalf of Nazir. He found the appellant was
    responsible for those purchases.

[18]

The
    trial judge convicted the appellant of possession of property obtained by
    crime. He also concluded the appellant had engaged in fraudulent conduct by
    allowing his two accounts to be used for fraudulent purposes and distributing
    those funds. He found the appellant guilty as a party to the fraud of Kelly
    Dickson in relation to the ten counts concerning the June 12 deposits, but
    conditionally stayed nine counts, registering one conviction for fraud over $5,000.

ISSUES ON APPEAL

[19]

The
    appellant focuses his grounds of appeal on the trial judges findings regarding
    the fault element of both offences. In oral argument, the appellant clarified
    that he was not arguing the trial judges verdicts were unreasonable; nor does
    he contend the trial judge erred in his understanding of the legal principle of
    wilful blindness; nor does he submit the trial judges findings were tainted by
    palpable and overriding error. Instead, the appellant submits that the evidence
    before the trial judge could not support a finding that the appellant was
    wilfully blind.

ANALYSIS

[20]

The
    appellant submits that since he testified he had no suspicions about what was
    going on, the trial judge did not have any evidentiary basis upon which to find
    that he was wilfully blind to the source of the money deposited into his
    accounts. As well, the appellant contends that there was no evidence he spent
    any of the money on himself. As a result, there was no basis for the trial
    judge to find that the appellant knew that all or part of the property was
    obtained by the commission of an indictable offence:
Criminal Code
,
    354(1).

[21]

As
    to the fraud conviction, the appellant argues there was no evidence that he had
    direct knowledge the funds were coming from a fraud and, as a result, there
    were no facts to which the trial judge could apply the doctrine of wilful
    blindness. As a result, there was no basis on which the trial judge could find
    that the Crown had proved beyond a reasonable doubt the fault element for fraud
     that is, (i) subjective knowledge of the prohibited act and (ii) subjective
    knowledge that the prohibited act could have as a consequence the deprivation
    of another (which deprivation may consist in knowledge that the victims
    pecuniary interests are put at risk):
R. v. Zlatic
, [1993] 2 S.C.R.
    29, at p. 43.

[22]

We
    are not persuaded by either submission.

[23]

Wilful
    blindness can substitute for actual knowledge whenever knowledge is a component
    of the fault element of the crime:
R. v. Briscoe
, 2010 SCC 13, [2010]
    1 SCR 411, at para. 21. Wilful blindness imputes knowledge to an accused where
    his suspicion is aroused to the point where he sees the need for further
    inquiries but makes a deliberate choice not to make those inquiries:
R. v.
    Burnett
, 2018 ONCA 790, at para. 142.

[24]

The
    evidentiary threshold for wilful blindness may be met by an accuseds own
    evidence, where it discloses inherently suspicious circumstances characterized
    by unclear details and at odds with common sense and human experience:
R.
    v. Morales
(2006), 81 O.R. (3d) 161 (C.A.), at para. 26. The threshold may
    also be met by the cumulative effect of several strands of circumstantial
    evidence from different sources woven together in a mosaic:
Burnett
,
    at para. 143.

[25]

The
    trial judges reasons disclose that he rested both convictions on the combination
    of the inherently suspicious circumstances disclosed by the appellants
    evidence and the cumulative effect of the circumstantial evidence.

[26]

In
    concluding that by June 11, 2015  the day before the second deposit  the appellant
    was in full knowledge of facts that this was no longer any kind of legitimate
    business enterprise, the trial judge relied upon evidence of: (i) the amount
    of money deposited into the business account; (ii) the nature of the numerous
    withdrawals in a short period of time  as graphically presented on the
    schedule to the respondents factum; and (iii) the frequent Interac purchases unrelated
    to any legitimate business purpose.

[27]

As
    well, the trial judge clearly explained why he rejected the appellants evidence
    that the Interac purchases were made by or on behalf of Nazir. His adverse
    findings about the appellants credibility were based not only on
    inconsistencies in the appellants evidence, but also on certain agreed facts,
    such as the videos recording the appellant withdrawing cash from ATMs.

[28]

The
    trial judge found that by June 11, 2015, the appellant was in full knowledge
    of facts that this was no longer any kind of legitimate business enterprise. Then,
    on June 12, 2015, another 10 separate deposits were made into [the
    appellants] business account amounting to $50,000. This led the trial judge
    to find that the appellant knew that those funds were obtained by crime and
    that inquiries had to be made as to the source of those funds and what role his
    registered business and business account was being used for. The defendant took
    no such steps, he made no such inquiries.

[29]

The
    trial judge then examined the appellants conduct following the second set of
    deposits: he continued to make frequent cash withdrawals and Interac purchases
    unrelated to any business purpose.

[30]

Taken
    together, that evidence met the evidentiary threshold for wilful blindness.
    Consequently, we do not accept the appellants submission that the trial judge
    applied a standard of negligence or recklessness to the evidence. Indeed, the
    words should or ought do not appear in the reasons.

[31]

We
    see no misapplication of the principle of wilful blindness to the facts found.
    As a result, we see no basis for appellate intervention either in the conviction
    for fraud over or in the conviction for possession of property obtained by
    crime. The combination of the inherently suspicious circumstances disclosed by
    the appellants evidence and the cumulative effect of the other findings of
    fact made by the trial judge operated as an adequate evidentiary basis for the
    trial judges finding that the appellant, at a minimum, was wilfully blind to
    the source of the funds deposited into his account.

DISPOSITION

[32]

The
    appeal is dismissed.

David Watt J.A.

K. van Rensburg J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ritchie, 2018 ONCA 918

DATE: 20181116

DOCKET: C63658

MacPherson,
    Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keith John Ritchie

Appellant

Joseph Wilkinson, for the appellant

Scott Wheildon, for the respondent

Heard: November 2, 2018

On appeal from the convictions entered by Justice Terrence
    A. Platana of the Superior Court of Justice dated February 10, 2017, with
    reasons reported at 2017 ONSC 991.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant, Keith Ritchie, was convicted of the following offences:
    trafficking in cocaine, trafficking in marihuana, conspiracy to traffic in
    cocaine, conspiracy to traffic in marihuana, participating in or contributing
    to the activities of a criminal organization for the purpose of enhancing its
    ability to commit an indictable offence, and committing an indictable offence
    (trafficking in a controlled substance) for the benefit of or in association
    with a criminal organization. Based on a joint submission, the appellant
    received a global sentence of nine years and six months incarceration.

[2]

The principal issue on the appeal relates to the police seizure of a
    Blackberry owned by another accused who was alleged to be involved in the same
    enterprise. Communications on the Blackberry between the appellant and the
    other accused led to the charges against the appellant. At his trial, the
    appellant sought to exclude those communications on the basis that they
    violated his rights to be secure from unreasonable searches and seizures under
    s. 8 of the
Charter
. The trial judge ruled against him.

[3]

The trial judge did not have the benefit of the decision of the Supreme
    Court of Canada in
R. v
.
Marakah
, 2017 SCC 59. The central
    issue on the appeal is whether the trial judges ruling has been rendered
    incorrect by
Marakah
.

[4]

At the conclusion of the appeal hearing, the court indicated that the
    appeal was allowed and a new trial was ordered, with reasons to follow.  These
    are the reasons.

B.

FACTS

(1)

The
    parties and events

[5]

The Thunder Bay Police seized John Tsekouras Blackberry in 2011
    pursuant to a search incident to arrest as part of a drug trafficking
    investigation. The police searched the Blackberry without warrant. The
    Blackberry contained coded communications that the appellant had sent to Tsekouras.
    The police used these communications in Informations To Obtain (ITOs) sworn
    February 21 and April 10, 2012 in support of two search warrants.

[6]

The first search warrant was to search credit card account information
    for a number referenced on the Blackberry. The data relating to the credit card
    revealed that the appellant had obtained it using his drivers licence and
    passport. The second search warrant was to search the appellants residence.

[7]

Apart from the contents of the Blackberry, there was very little
    information about the appellant, his involvement in the drug trafficking
    activities of the putative criminal organization, or his residence. The basis
    to believe that the appellant lived at the address searched was a one-time tip
    and a single incident where the appellant was observed entering the residence
    in the early evening.

[8]

During the search of the residence, the police recovered the credit card
    bearing the card number referenced in the Blackberry communication between the
    appellant and Tsekouras.

[9]

At his trial, Tsekouras tried to exclude the Blackberry evidence. The
    trial judge found that the police had violated his
Charter
s. 8
    rights, but admitted the evidence under
Charter
s. 24(2). Tsekouras
    was convicted. On appeal, this court upheld the trial judges decision:
R. v.
    Tsekouras
, 2017 ONCA 290, leave to appeal to S.C.C. refused, [2017]
    S.C.C.A. No. 25.

(2)

Pre-trial
    motions

[10]

At
    his trial, the appellant brought several pre-trial motions. Two are relevant
    for this appeal.

[11]

The
    appellant sought to exclude the information obtained as a result of the search
    of Tsekouras Blackberry. The trial judge dismissed the motion on the basis that
    the appellant lacked standing to bring it:

[36] I conclude that, on the basis of
Pammett and Thompson
,
    and the factors in
Edwards
, Mr. Ritchie did not have a reasonable
    expectation of privacy in the messages in Mr. Tsekouras seized phone. Mr.
    Ritchie, therefore, has no standing to challenge the inclusion of information
    obtained as a result of the search of the Tsekouras phone.

[12]

The
    appellant also sought to have the communications between himself and Tsekouras
    excised from the ITOs so that he could then argue that the ITOs were deficient.
    The trial judge dismissed this motion on the basis that the appellant lacked
    standing to bring it:

[53] The cases suggest to me that to have standing to seek
    excision of information or evidence obtained from an illegal search of someone
    elses phone, the accused must establish that he had an independent right to
    privacy in the evidence obtained as a result of that search.

[56] In this case, I have found that there was no expectation
    of privacy in Mr. Ritchies messages to Mr. Tsekouras, therefore, on the basis
    of
Edwards
, no breach of his s. 8 rights to provide a remedy under s.
    24(2).

[57] He has not established entitlement to seek excision of
    information from the ITO or search warrant.

[13]

The
    appellant was convicted on all counts in the indictment. He appeals the
    convictions.

C.

ISSUES

[14]

The
    recent decision of the Supreme Court of Canada in
Marakah
has removed
    several potential issues from the appeal.

[15]

First,
    the Crown concedes that the appellant had standing to mount a
Charter

s.
8 challenge to his messages found on Tsekouras
    Blackberry:
Marakah
, at paras. 13-55.

[16]

Second,
    the Crown concedes that the communications from Tsekouras Blackberry were
    seized in violation of the appellants s. 8
Charter
-protected rights.

[17]

Third,
    the Crown does not contest that the unlawfully obtained information about the
    communications between the appellant and Tsekouras must be excised from the ITOs:
R. v. Garofoli,
[1990] 2 S.C.R. 1421, at pp. 1452-3, and
R. v. Wu
,
    2015 ONCA 667, at para. 38. In light of these concessions, I would frame the
    issues in this fashion:

1.

Is the evidence obtained from Tsekouras Blackberry admissible against
    the appellant by virtue of s. 24(2) of the
Charter
?

2.

If the answer to (1) is No, does the curative provision in s.
    686(1)(b)(iii) of the
Criminal Code
apply?

D.

Analysis

(1)

The
Charte
r s. 24(2) issue

(a) Preliminary question

[18]

Because
    the trial judge concluded that the appellant did not have standing to challenge
    that the ITOs were deficient or to seek the excision of some of the information
    in them, he did not reach the potential
Charter
s. 8 and s. 24(2)
    issues. Now, with the Crown concession on the s. 8 issue, the question becomes:
    should this court return the matter to the trial judge to determine the s.
    24(2) issue or should this court determine it on the basis of the record before
    us?

[19]

In
    my view, there is clear authority for an appellate court to determine a s.
    24(2) issue that was not addressed at trial because the trial judges ruling
    stopped with a conclusion on a standing or
Charter
s. 8 issue: see,
    for example,
R. v. Spencer
, 2014 SCC 43, at para. 75, and
Marakah
,
    at para. 58. The appeal record contains the entire Application Record that was
    before the trial judge on the two motions that are the subject of this appeal. This
    is sufficient to provide a foundation for this court to consider and determine
    the s. 24(2) issue.

(b) The merits

[20]

In
    my view, the three lines of inquiry described in
R. v. Grant
, 2009 SCC
    32, lead to the conclusion that the evidence obtained from Tsekouras
    Blackberry about the appellant must be excluded.

(i) Seriousness of the
Charter
-infringing
    conduct

[21]

In
Marakah
, McLachlin C.J. said this about the search of Winchesters
    phone which contained conversations between Winchester and Marakah, at para.
    66:

The police committed a serious breach of the
Charter
in examining Mr. Winchesters iPhone. That this was an infringement of Mr.
    Winchesters s. 8 right, not Mr. Marakahs, does not detract from its
    seriousness.
Of course, the police also
    breached Mr. Marakahs s. 8 right when, in their search of Mr. Winchesters
    iPhone, they examined the contents of the electronic conversation between the
    two men. This, too, lacked any reasonable pretext of lawful authority.
I conclude that the conduct of police in accessing and searching the electronic
    conversations through Mr. Winchesters iPhone was sufficiently serious to
    favour the exclusion of the evidence. [Emphasis added.]

[22]

In
    my view, what McLachlin C.J. said in the emphasized passage about the
    seriousness of the breach of Marakahs s. 8 right applies with equal force to
    the appellant. Further, due to the timing of the search, if anything, the
    appellants case is stronger. In
Marakah
, the police searched the
    phone without a warrant two hours after Winchesters arrest.  The court
    acknowledged that the police may have acted in good faith:
Marakah
, at
    para. 65. In the appellants case, the police searched Tsekouras phone without
    a warrant six months after they seized it, and obtained a warrant two months
    after that.

(ii) Impact on the appellants
Charter
-protected
    interests

[23]

The
    respondent contends that the severity of the impact of the unlawful search is
    reduced by the fact that the messages were recovered on Tsekouras Blackberry,
    not the appellants. The respondent also asserts that, in any event, the
    evidence was discoverable through constitutional means based on the fact that a
    warrant was eventually obtained, albeit belatedly, to search Tsekouras
    Blackberry. In its factum at para. 36, the Crown says:

While the appellant may have hoped his messages would have
    remained private, the lack of privacy in sent messages is such a basic reality
    that even elementary school aged children are taught that there is an absolute
    loss of control in sent electronic messages. In light of this basic premise and
    a minimal expectation of privacy would not justify the exclusion of evidence.

[24]

Once
    again, the Supreme Court of Canadas decision in
Marakah
provides a
    complete answer to this submission.  McLachlin C.J. said, at para. 67:

The impact of the
Charter
-infringing conduct on Mr.
    Marakahs
Charter
-protected privacy interest was significant.  Though,
    as LaForme J.A. acknowledged, Mr. Marakah had no independent interest in Mr.
    Winchesters iPhone, he nonetheless had a considerable,
Charter
-protected
    privacy interest in his and Mr. Winchesters electronic conversation, the
    contents of which the illegal search of Mr. Winchesters iPhone revealed. That
    electronic conversation revealed private information that went to Mr. Marakahs
    biographical core, as I have described. Mr. Marakah had a reasonable expectation
    that the fact of his electronic conversation with Mr. Winchester, as well as
    its contents, would remain private. The
Charter
-infringing actions of
    police obliterated that expectation. The impact on Mr. Marakahs
Charter
-protected
    interest was not just substantial; it was total.

[25]

The
    appellant is in the same position as Marakah. Accordingly, the impact of the
    unlawful seizure of Tsekouras Blackberry was, in McLachlin C.J.s words,
    substantial, total and considerable: paras. 67 and 69.

(iii) Societys interest in
    the adjudication of the case on its merits

[26]

It
    is obvious that societys interest in the adjudication of this case on its
    merits favours admission of the evidence relating to conversations between the
    appellant and Tsekouras.  The criminal charges against the appellant are very
    serious, including trafficking in cocaine and trafficking in cocaine for the
    benefit of a criminal organization.  The communications on Tsekouras
    Blackberry were used to obtain search warrants that led to reliable and
    probative evidence in the prosecution of the case.

(iv) Balancing the factors

[27]

Once
    again, the analysis in the virtually identical
Marakah
is controlling.
    Having found that two of the
Grant
factors favoured exclusion and one
    favoured admission, McLachlin balanced and concluded, at paras. 72 and 73:

As the Court recognized in
Grant
, at para. 84, while
    the public has a heightened interest in seeing a determination on the merits
    where the offence charged is serious, it also has a vital interest in having a
    justice system that is above reproach, particularly where the penal stakes for
    the accused are high. Though the exclusion of the evidence would eviscerate the
    Crowns case against Mr. Marakah on serious charges, [i]t isimportant not to
    allowsocietys interest in adjudicating a case on its merits to trump all
    other considerations, particularly wherethe impugned conduct was serious and
    worked a substantial impact on the appellants
Charter
right:
Paterson
,
    at para. 56. That is this case.

On balance, I conclude that the admission of the evidence would
    bring the administration of justice into disrepute. It must therefore be
    excluded under s. 24(2) of the
Charter
.

[28]

In
    my view, that is also this case.
Marakah
requires that the evidence be
    excluded.

(2)

The proviso

[29]

The
    respondent raises the issue of the potential application of the proviso in s.
    686(1)(b)(iii) of the
Criminal Code
. However, in its brief argument in
    its factum it concedes that [r]eference to the proviso is inextricably bound
    up with the 24(2) analysis outlined above.

[30]

The
    respondent has not succeeded in its s. 24(2) argument.  I can see no
    independent basis for applying the proviso. The reality is that, without the
    evidence of the appellants communications with Tsekouras, the case against the
    appellant is weak.

E.

DISPOSITION

[31]

I
    would allow the appeal and order a new trial.

Released: JCM NOV 16, 2018

J.C. MacPherson J.A.

I agree. C.W. Hourigan J.A.

I agree. B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sabir, 2018 ONCA 912

DATE: 20181114

DOCKET: C63563

Strathy C.J.O., Nordheimer J.A. and McKinnon J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Belal Sabir

Appellant

Boris Bytensky, for the appellant

Caitlin Sharawy, for the respondent

Heard: October 16, 2018

On appeal from the conviction entered on September 22,
    2016 and the sentence imposed on March 27, 2017 by Justice Johanne Morissette
    of the Superior Court of Justice, sitting without a jury.

Strathy C.J.O.:

Introduction

[1]

The appellant appeals his convictions for criminal harassment (count 1),
    mischief under $5,000 (count 2), possession of a weapon for a purpose dangerous
    to the public peace (count 3), and the use of an imitation firearm in the
    commission of an offence (count 4). He also seeks leave to appeal his sentence
    of 18 months custody and two years probation.

[2]

For the reasons that follow, I would allow the appeal from the
    convictions on the weapons offences and would order a new trial on those
    counts. In the circumstances of this case, the trial judge did not discharge
    the heavy burden of providing meaningful assistance to the unrepresented
    accused.

[3]

I would grant leave to appeal sentence and would allow the sentence
    appeal in part.

Facts

[4]

The appellant and the complainant were co-workers. They did not get
    along. The complainant had spoken to her manager about a series of incidents in
    the workplace involving the appellants threatening words and conduct that had
    made her very uncomfortable.

[5]

In the early morning of August 21, 2014, the complainant left her
    boyfriends house and got into her car to drive home. She noted the appellant watching
    her from his own car, a black Volkswagen Golf. The complainants boyfriend
    testified to seeing a black Volkswagen on the street as the complainant was
    leaving his home. He did not observe who was inside the vehicle.

[6]

As the complainant began to drive away, she saw the appellant get something
    out of his trunk and then follow her in his car. He continued to follow her
    car, accelerating and decelerating at the same pace as she did. On two
    occasions, he came alongside her car, as if to force her off the road.

[7]

At some point, the complainants driver-side window shattered. The
    appellant made a U-turn in front of her and drove away. She called the police.

[8]

Two officers, P.C. Lucas and Sgt. Gilmore, responded to her call. The
    complainant was visibly distraught. They examined the vehicle and noted a small
    round divot near the top of her shattered window, which was held in place by
    the tinting film. They suspected that the damage was caused by a projectile,
    possibly a bullet. The complainant identified the accused as the individual who
    had been following her in his vehicle.

[9]

Another officer, P.C. Bollman, went to the appellants residence.
    Although it was the middle of the night, he found the appellant inside his
    garage, with the door open. He arrested the appellant for property damage and
    criminal harassment and read the appellant his rights. The arrest took place
    without incident.

[10]

Sgt.
    Gilmore arrived at the appellants residence as P.C. Bollman was effecting the
    arrest. He observed a Nissan vehicle parked outside the appellants residence.
    The rear windshield was shattered and had a small hole in it, similar to the
    damage to the complainants vehicle.

[11]

Sgt.
    Gilmore questioned the appellant about what had happened to the Nissan. The
    appellant said that it was being sent for salvage and that he had shot out the
    back window with his BB gun. Sgt. Gilmore asked him where the gun was. The
    appellant replied that it was in the trunk of his Volkswagen.

[12]

Sgt.
    Gilmore informed the appellant that they would tow his car and get a warrant to
    search it. The appellant allegedly agreed to let them search the vehicle and signed
    a Consent to Search form, permitting them to do so. The form stated that the
    purpose of the search was to assist in an investigation of criminal
    harassment. The vehicle was searched and a loaded BB gun was seized from the
    trunk. The appellant was then charged with the firearms offences.

[13]

About
    three months prior to trial, the appellant was provided with a memorandum that
    is prepared for unrepresented accused persons to assist them with criminal
    trial procedure. The actual document was not part of the record before us.

[14]

For
    the trial, counsel was appointed to cross-examine the complainant pursuant to
    s. 486.3 of the
Criminal Code
. The appellant otherwise conducted his
    own defence. He was articulate and had a reasonable appreciation of the trial issues,
    as well as of trial procedure and evidence.

Trial Judges Reasons

[15]

The
    trial judge accepted the complainants evidence identifying the appellant as
    the person who had followed her in his car. This evidence was corroborated by the
    observations of the complainants boyfriend. The trial judge found that the
    appellants conduct while following the complainant in his vehicle amounted to
    criminal harassment.

[16]

She
    also found that the BB gun seized from the appellants vehicle was used for a
    purpose dangerous to the public peace, to threaten and intimidate the
    complainant in furtherance of the criminal harassment, and was used to cause
    damage to the complainants vehicle in an amount less than $5,000.

[17]

The
    trial judge accepted a joint submission and imposed a custodial sentence of 18
    months.

Analysis

A.

Conviction appeal

[18]

It
    is well-settled that there is a heavy onus on a trial judge to assist a
    self-represented accused to ensure the fairness of the trial:
R. v. Tran
(2001), 55 O.R. (3d) 161 (C.A.), at paras. 22-27;
R. v. Dimmock
(1996), 47 C.R. (4th) 120 (B.C.C.A.), at para. 20. The degree of assistance
    required depends on the circumstances of the case and those of the particular
    accused:
R. v. Breton
, 2018 ONCA 753, at para. 13. The appellant
    submits that, in the instant case, this heavy onus was not met because: (1) the
    trial judge failed to conduct a voluntariness
voir dire
in relation to
    the statements made by the appellant to Sgt. Gilmore following his arrest; (2)
    the judge failed to inquire into potential
Charter
breaches; and (3)
    the judge misinformed the appellant concerning his right to testify.

(1)

The Statements

[19]

The
    Crown did not adduce evidence of the appellants statements to the police
    through the evidence of P.C. Bollman, who had arrested him for mischief and
    criminal harassment. In the Crowns examination of P.C. Bollman, the Crown told
    the officer that she was not going to ask him anything about what the appellant
    may have said to him.

[20]

However,
    in the course of the appellants cross-examination of P.C. Bollman, the
    following exchange took place with respect to the officers observations of the
    Nissan:

Q. [by the appellant]: And did you ask the accused what
    happened to the vehicle?

A. I did.

Q. What did he say?

A. Again, I cannot provide

The Crown: Well, he

The Court: No. That is fair. That is the accused.

The Witness [P.C. Bollman]: I can answer that?

The Crown: Yes. You can because he [the appellant] is asking.

A. Yeah. I recall you saying that you shot it out with a BB
    gun.

[21]

In
    examination-in-chief by the Crown, the next witness, Sgt. Gilmore, was asked about
    statements made by the appellant in response to questioning about the Nissan.
    He responded:

I asked him what had happened to that vehicle [the Nissan],
    and he told me it was going to the junk yard so he shot out the back window
    with his BB gun. I then asked him where his BB gun was at the time and he
    indicated to me that it was parked in the trunk of his Volkswagen and he
    further stated [the location of the vehicle].

[22]

The
    appellant submits that the statements made to Sgt. Gilmore regarding the Nissan
    and the BB gun were important pieces of the Crowns case against him. He
    submits that where the Crown seeks to introduce evidence of a statement made by
    an accused to a person in authority, voluntariness of the statement must be
    established beyond a reasonable doubt. The trial judge did not turn her mind to
    the issue of the voluntariness of these statements. There was nothing in the
    record to suggest that the appellant gave an informed waiver of his right to a
    voluntariness
voir dire
.

[23]

The
    Crown submits that the absence of a voluntariness
voir dire
did not
    render the trial unfair for two reasons. First, it was the appellant who
    initially elicited the statements from P.C. Bollman in cross-examination.
    Second, there was nothing in the record to suggest that the statements were not
    voluntary.

[24]

As
    the Supreme Court explained in
R. v. Park
, [1981] 2 S.C.R. 64, at p.
    73, there is no particular wording or formula required to communicate an
    informed waiver. However, the waiver must be express. The question is: Does
    the accused indeed waive the requirement of a
voir dire
and admit that
    the statement is voluntary and admissible in evidence?:
R. v. Park
, at
    p. 74. In the context of a waiver made by defence counsel, the court stated
    that the trial judge must be satisfied that counsel understands the matter and
    has made an informed decision to waive the
voir dire
: at p. 73. The
    onus on a trial judge with respect to voluntariness is high, even where an
    accused is represented by counsel. As the Supreme Court noted in
R. v.
    Hodgson
, [1998] 2 S.C.R. 449, at para. 41: The trial judge has a duty to
    conduct the trial judicially quite apart from lapses of counsel: see
R. v.
    Sweezey
(1974), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes
    the duty to hold a
voir dire
whenever the prosecution seeks to adduce
    a statement of the accused made to a person in authority.

[25]

The
    decision of the British Columbia Court of Appeal in
R. v. Dimmock
is
    instructive on the issue of an informed waiver in the case of an unrepresented
    accused. In
Dimmock
, a new trial was ordered because the trial judge
    did not intervene to hold a
voir dire
on the admissibility of certain
    statements made by the accused to police, or obtain the accuseds informed
    waiver. The court concluded that despite the trial judge explicitly asking the
    accused whether the statements were voluntary and free of any inducement or
    threat, it could not be established based on these exchanges that the accused
    understood the issues and provided informed consent: at para. 22.

[26]

In
    the circumstances of this case, the record does not suggest that the appellant
    understood the purpose and consequences of a voluntariness
voir dire
,
    and made an informed decision to waive his right to a
voir dire
. Nor
    can it be said that, had the trial judge raised the issue of voluntariness with
    the appellant, the appellant would have proceeded in the same manner.

[27]

On
    the second point raised by the Crown, the case law makes clear that the
    voluntariness requirement extends to all statements made by an accused to a
    person in authority, even if the statement appears to be obviously voluntary
    or volunteered: per Dickson J. in
Erven v. The Queen
, [1979] 1
    S.C.R. 926. Whether or not the statement is actually voluntary is a substantive
    issue to be determined in the
voir dire
itself, not on the threshold issue
    of whether a
voir dire
is required.

[28]

When
    the appellant indicated his intention to adduce evidence of the content of his
    statements, the trial judge was required to hold a
voir dire
into the admissibility
    of the statements, in the absence of an informed waiver. In the circumstances
    of this case, she was required to inform the appellant of the purpose of a
    voluntariness
voir dire
, that he had a right to waive a
voir dire
,
    and the consequences of so doing. The appellants response to this information
    may have required a more detailed explanation of the
voir dire
process, including evidence to be adduced by each party and the burden of
    proof.

[29]

It
    is unnecessary to consider what else may have been required to assist the
    appellant in that regard. In the absence of an informed waiver, the failure to
    conduct a
voir dire
vitiates the conviction:
R. v. Park
, at pp.
    69-70. The appellants statements were central to the discovery of the firearm,
    as I describe below.

(2)

The Potential
Charter
Breaches

[30]

P.C.
    Bollman initially arrested the appellant for criminal harassment and property
    damage. While P.C. Bollman likely suspected, as a result of information
    received over the police radio, that a firearm had been shot at the
    complainants car window, this was not communicated to the appellant at the
    time of his arrest. The appellant was read his rights to counsel and he stated that
    he did not have a lawyer.

[31]

Observation
    of the damage to the window of the Nissan led Sgt. Gilmore to conclude that the
    damage was consistent with the damage to the complainants vehicle. Further
    questioning of the appellant following his arrest led to the disclosure that he
    had used a BB gun to shoot the window of the Nissan, and the location of the BB
    gun in the trunk of the Volkswagen.

[32]

The
    extent of the appellants jeopardy had changed after his reference to the BB
    gun and his connection to the shot-out Nissan. There was sufficient evidence of
    a potential breach of the appellants s. 8 and s. 10
Charter
rights to
    require the trial judge to raise the issues on her own motion, to invite
    submissions, and to enter into an inquiry. In
R. v Richards
, 2017 ONCA
    424, 349 C.C.C. (3d) 284, at para. 113, this court stated:

The onus extends, at least can extend, to an obligation on the
    trial judge to raise
Charter
issues on the judge's own motion where the
    accused is self-represented:
R. v. Travers
, 2001 NSCA 71, 154 C.C.C.
    (3d) 426 (N.S. C.A.), at para. 36. This is not to say, however, that this
    specific obligation becomes engaged on the mere scent or intimation of a
    possible
Charter
infringement:
Travers
, at para. 40. But
    where there is admissible uncontradicted evidence of a relevant
Charter
breach, the trial judge has an obligation to raise the issue, invite
    submissions and enter upon an inquiry into the infringement and its
    consequences:
Travers
, at paras.
36, 40;
R. v.
    Arbour
(1990), 4 C.R.R. (2d) 369 (Ont. C.A.), at p. 372.

[33]

Section
    10(a) of the
Charter
protects the right to be promptly informed of the
    reasons for arrest. As this court stated in
R. v. Roberts
, 2018 ONCA
    411, 360 C.C.C. (3d) 444, at para. 78, this requires information that is
    sufficiently clear and simple to enable [the accused] to understand the reason
    for their detention and the extent of their jeopardy. See also
R. v.
    Nguyen
, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 20. The testimony of
    the arresting officers in this case suggests that, despite their suspicion of a
    firearm being involved in the commission of the offence, and that suspicion
    being crystallized upon the appellant making statements about the BB gun and
    the Nissan, the appellant was not promptly informed about his potential jeopardy
    related to the firearms offences. This was sufficient evidence to trigger an
    inquiry into a potential s. 10
Charter
breach.

[34]

With
    respect to s. 8, a consent to search requires that the Crown demonstrate on a
    balance of probabilities that the consent was fully informed. This court in
R.
    v. Wills
(1992), 70 C.C.C. (3d) 529, outlined a number of factors required
    to establish valid consent to a search. Among these factors is a requirement
    that the individual giving consent be aware of the potential consequences of
    giving the consent: at p. 546. In other words,

[t]he
    person asked for his or her consent must appreciate in a general way what his
    or her position is vis-a-vis the ongoing police investigation including the
    nature of the charge or potential charge which he or she may face: at p. 546.
    In
Wills
, the court found that the consent given by the accused to a
    breath test was not a valid waiver of his s. 8 rights because he was not made
    sufficiently aware of his potential jeopardy and the potential consequences of
    consenting to the search. See also
R. v. Borden
, [1994] 3 S.C.R. 145,
    at p. 162.

[35]

At
    trial, Sgt. Gilmore testified that he explained to the appellant the mechanics
    of providing a consent to search  i.e. that it was voluntary and revocable at
    any time. However, the balance of the evidence before the trial judge was that
    the officers had not informed the appellant of the potential firearms charges.
    As noted above, the statements regarding the BB gun and Nissan changed the extent
    of the appellants jeopardy. The consent to search form referenced only an
    investigation into criminal harassment. Taken together, this represented
    sufficient evidence that the consent provided by the appellant may not have
    been fully informed such that an inquiry into the s. 8
Charter
issue
    was necessary.

[36]

On
    this record, there was an objective basis upon which to trigger the trial
    judges obligation to conduct an inquiry into voluntariness and
Charter
issues. The trial judge erred in failing to do so.

[37]

The
    statements made by the appellant in relation to the BB gun and the Nissan
    provided the critical foundation for the firearms convictions and for the
    conviction for mischief. I would accordingly allow the appeal in relation to
    counts 2, 3 and 4.

(3)

The Right to Testify

[38]

The
    appellant asserts that the trial judge, prompted by statements made by the
    Crown, left the appellant with the impression that if he testified in his own
    defence, he had to testify first, before any other witnesses he called. He
    further asserts that the trial judge failed to correct a subsequent Crown
    suggestion that if the appellant testified after other witnesses he called, the
    court would be entitled to draw an adverse inference from that fact.

[39]

The
    court has no authority to direct an accused person to call witnesses in any
    particular order or to give evidence before any other witness:
R. v.
    Angelantoni
(1975), 28 C.C.C. (2d) 179 (Ont. C.A.), at p. 183. Nor, quite
    obviously, is it appropriate to suggest that an adverse inference will be drawn
    from the failure of the accused to testify first:
R. v. Smuk
(1971), 3
    C.C.C. (2d) 457 (B.C.C.A.), at p. 462.

[40]

In
    the circumstances of this case, a review of the record indicates the appellant
    understood that he had a right to testify, understood that he was not required
    to testify first, and made it clear that he had no intention of giving
    evidence.

[41]

I
    am satisfied, therefore, that any error made by the trial judge regarding the
    right to testify did not deprive the appellant of a fair trial.

[42]

For
    these reasons, I would dismiss the appeal in relation to count 1.

B.

sentence appeal

[43]

The
    appellant submits that, in view of his youth and the absence of previous
    offences, if the firearms and mischief convictions are set aside, the sentence for
    criminal harassment should be reduced to time served (34 days), plus probation,
    without further ancillary orders. The Crown submits that the offence of criminal
    harassment is serious, even absent the aggravating aspect of the firearm, and
    proposes a sentence of 8 to 12 months.

[44]

I
    agree with the Crown that, even without the discovery of the firearm, there was
    sufficient evidence of the appellants identity and of his manner of driving to
    support the conviction for criminal harassment.

[45]

I also agree with the Crown that, although the appellant is a
    youthful first offender, the principles of denunciation and general and
    specific deterrence call for a custodial sentence. As this court observed in
R.
    v. Bates

(2000), 134 O.A.C. 156 (C.A.), at paras 38, 42,
    criminal harassment is a serious offence and usually requires the court to send
    a message to the offender and the public that harassing conduct against
    innocent and vulnerable victims is not tolerated by society, and that such
    conduct must be deterred. The appellants driving was both dangerous and
    threatening. The events had a serious impact on the complainants well-being
    and sense of security.

[46]

In
Bates
, at para. 37, the court made reference to the fact that the
    offence of criminal harassment was enacted to address concerns about escalating
    harassment against individuals: [t]he purpose of the new section was to
    criminalize the threatening behaviour and to permit punishment of the offenders
    in an attempt to restrain their behaviour before it escalates to physical
    violence against the victims.

[47]

As
    the Crown notes, the context of this case includes a history of intimidation,
    threats, and harassment in the workplace. The trial judge also noted in her
    sentencing reasons that the appellant did not appear to grasp the importance of
    acknowledging the harm to the complainant.

[48]

In my view a custodial sentence of 6 months is appropriate.

Conclusions and Order

[49]

For
    these reasons, I would allow the appeal, in part. I would set aside the
    convictions on counts 2, 3 and 4 and would order a new trial on those counts. I
    would grant leave to appeal sentence and allow the sentence appeal, in part. I
    would reduce the sentence of imprisonment imposed by the trial judge from 18
    months to 6 months. I would set aside the order under s. 109 (lifetime weapons
    prohibition), but would keep in effect the other ancillary orders, including
    the term of probation.

Released: GS  NOV 14 2018

G.R. Strathy C.J.O.

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

I agree. Colin McKinnon J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scrivener, 2018 ONCA 909

DATE: 20181113

DOCKET: C63679

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Robert Scrivener

Appellant

Mark Halfyard, as duty counsel

Jessica Smith Joy, for the respondent

Heard and released orally: November 8, 2018

On appeal from the conviction entered on November 30,
    2016 and the sentence imposed on March 31, 2017 by Justice D.M. Paciocco of the
    Ontario Court of Justice.

.

REASONS FOR DECISION

[1]

The appellant says that the trial judge erred by failing to grant an adjournment
    request so that he could bring a s. 11(b) application. That adjournment request
    was made on the day that had been scheduled for sentencing, some three months
    after the convictions had been registered. He filed no application or evidence
    in support of his request. Nor was there evidence that the transcript had been
    ordered.

[2]

We see no error in the trial judges decision to deny the request for an
    adjournment. The trial judges conclusion that the proposed application was for
    the purpose of further delaying proceedings was reasonable and there is no
    basis to interfere with that conclusion.

[3]

Despite Mr. Halfyards very able submissions, we disagree that the trial
    judge failed to turn his mind to the potential merit of a s. 11(b) application.
    Read in context, the trial judges reasons reveal his conclusion that the delay
    lay at the feet of the appellant and he suffered no prejudice as a result.

[4]

The appellant did not pursue his other grounds of appeal.

[5]

The conviction appeal is dismissed. Leave to appeal sentence is refused.

K. Feldman J.A.
L.B. Roberts J.A.
Fairburn J.A.