COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Canary, 2018 ONCA 304

DATE: 20180327

DOCKET: C60708

Feldman, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Canary

Appellant

Paul Alexander, for the appellant

Ian Bell, for the respondent

Heard: February 5, 2018

On appeal from the convictions entered on February 20,
    2015 by Justice John R. McCarthy of the Superior Court of Justice, sitting
    without a jury.

Fairburn J.A.:

OVERVIEW

[1]

On June 11, 2012, in a parking lot in Vaughan, Ontario, an experienced
    drug investigator saw the appellant and another man move several bins from the
    trunk of one vehicle to another. This was followed by what appeared to be an
    exchange of cash. Arrests were made and seizures followed. The appellant was
    convicted of possession of a controlled substance for the purposes of
    trafficking and possession of the proceeds of crime.

[2]

The appellant appeals from these convictions. He maintains that the trial
    judge erred by dismissing his ss. 8 and 9
Charter
claims. He raises
    the following arguments:

(a) the
    arrest was unlawful and, therefore, the search incident to arrest was unlawful;

(b) even if the
    arrest and search were lawful, the police were required to return the items
    seized when they decided to unconditionally release him from the scene;

(c) the failure
    by the police to file a s. 489.1
Criminal Code
report to a justice as
    soon as practicable resulted in a s. 8
Charter
breach; and

(d) the
    verdict was unreasonable.

[3]

For the reasons that follow, I would dismiss the appeal.

GENERAL BACKGROUND

[4]

The police were conducting surveillance in an unrelated investigation on
    June 11, 2012. Sgt. Fuhrman was the commanding officer. He was making
    observations in a parking lot when he saw what he described as an unusual
    event unfold before him. At about 11:30 a.m., he watched as two men moved
    cylindrical bins from the trunk of one vehicle to another.

[5]

Sgt. Fuhrman was a highly experienced drug investigator. He had seen these
    types of bins in the past while investigating clandestine chemical drug labs.
    Sgt. Fuhrman testified that, in his experience, these types of bins could
    contain Class A precursors under the
Controlled Drugs and Substances Act,
S.C.
    1996, c.19 (
CDSA
). Accordingly, the officer positioned himself so that
    he could take a closer look. He was able to see that the labels on the bins
    were torn. He then watched as both men entered the vehicle into which the bins
    had been placed. While the men were in the vehicle, the licence plates of both
    vehicles were checked on CPIC and the checks returned clear.

[6]

When the appellant emerged from the passengers side of the vehicle, he
    was holding a brick shaped object contained in a translucent plastic bag. Based
    on Sgt. Fuhrmans past experience, including undercover drug deals he had been personally
    involved in, he believed that the bag contained cash. When he got closer, the
    officer was able to see a $20 bill through the translucent bag.

[7]

After a total of fifteen to twenty minutes of observation, Sgt. Fuhrman
    formed the belief that the men were trafficking in drugs. He decided to make
    arrests and asked Cst. Philp, who was positioned elsewhere in the parking lot,
    to provide backup. Both males were placed under arrest for possession for the
    purpose of trafficking and a search incident to arrest followed. Four bins and
    a box were found in the back of the vehicle in which the cash exchange had
    occurred. Large plastic bags were used to line the inside of the bins and box.
    They were full of pills. Zip ties were used to close the bags. It was later
    discovered that the pills  all 220,000 of them  weighed over one hundred
    kilograms in total. The translucent plastic bag in the appellants hand at the
    time of arrest contained $14,000 in $20 bills.

[8]

Even though Sgt. Fuhrman did not recognize the pills as a substance he
    had previously been exposed to, he testified that he continued to believe that
    he had just witnessed a drug trafficking offence. Although he was not a
    hundred percent for certain, based on [his] experience, that they were drugs,
    Sgt. Fuhrman testified that he believed that the pills were a prohibited
    chemical substance under the
CDSA
.

[9]

Sgt. Fuhrman decided only to seize the pills and cash at the time of
    arrest. As he did not recognize the pills, he decided that the next step was to
    submit them for analysis and determine their contents. He told the men that he
    was going to have the pills analyzed and, if they contained a controlled
    substance, the men would be summonsed to court. If the pills turned out to be
    an inert substance, the men were told that their property would be returned.
    The men were then released and permitted to go on their way.

[10]

The
    officers immediately proceeded to label and seal the seized property, after
    which they returned to their initial unrelated investigation. As noted by Sgt.
    Fuhrman, he was consumed at that time by the other investigation, but he felt
    that he had to deal with this situation because it happened right in front of
    him and was so blatant.

[11]

A
    sample of the pills were forwarded for analysis. On June 27, 2012, just over
    two weeks following the arrests, the police received certificates of analysis
    confirming that the pills contained Schedule IV controlled substances. On July
    3 and 4, 2012, the seized material was processed.

[12]

On
    July 12, 2012, 31 days following the arrest and just over two weeks after the
    certificates of analysis were received, a report to a justice was filed under
    s. 489.1 of the
Criminal Code
. Appendix A to the form for the report
    provided a brief summary of the seizures, making reference to the amount of
    cash and pills seized. Charges were laid and the appellant was summonsed to
    attend court.

THE APPLICATION TO EXCLUDE THE DRUGS AND
    MONEY

[13]

The
    appellant brought a
Charter
application to exclude the seized pills
    and money from evidence. He maintained that Sgt. Fuhrman had insufficient
    grounds to make the arrest. Even if the officers initial belief rose to the constitutionally
    required level of reasonable grounds, the appellant argued that, as the
    investigation continued, the grounds for arrest evaporated and this required
    the return of the property seized.

[14]

The
    trial judge dismissed the
Charter
application. He accepted the
    credibility of both Officers Fuhrman and Philp. He concluded that, through the
    eyes of an experienced drug enforcement officer, it would have been close to
    inescapable but to arrive at the conclusion that the appellant was involved
    in a drug transaction.

[15]

The
    trial judge accepted as a fact that Sgt. Fuhrman had made the observations
    testified to and that he continued to believe that he had witnessed a drug deal
    throughout the course of the arrest and in its aftermath. The decision to
    release the appellant when the officer did not recognize the pills was
    characterized as nothing more than a reasonable exercise of discretion, one
    that did not alter the nature of the arrest.

[16]

In
    the end, the trial judge determined that the arrest was based on reasonable
    grounds and that the search incident to arrest was lawful. The trial judge nevertheless
    went on to conduct a s. 24(2) analysis, concluding that, if he was wrong and
    there had been a
Charter
breach, he would have admitted the evidence
    in any event.

THE ISSUES

[17]

I
    will deal with the appellants arguments in the following order. I first
    consider whether the police had sufficient grounds to justify the arrest. As my
    answer to this question is yes, it drives my conclusion that the search
    incident to arrest was also lawful.

[18]

I
    then consider the appellants argument that the arrest was abandoned,
    resulting in the need for the police to return the seized property to the
    appellant. I conclude that the manner in which the police exercised their
    discretion at the scene did not require the return of the property seized
    incident to arrest.

[19]

I
    next consider the appellants argument that the police breached s. 489.1 of the
Criminal Code
by failing to file a return to a justice as soon as
    practicable and this constituted a s. 8
Charter
breach. This issue is
    raised for the first time on appeal and, as discussed later, there is an
    insufficient factual record to determine the matter now.

[20]

Finally,
    I consider the suggestion that the verdict was unreasonable, concluding that it
    was not.

THE ARREST AND SUBSEQUENT SEARCH

[21]

Where
    a peace officer believes on reasonable grounds that a person has committed an
    indictable offence, the officer may make a warrantless arrest: s. 495(1)(a) of
    the
Criminal Code.
There is both a subjective and objective component
    to the reasonable grounds inquiry. To fulfill the subjective requirement, the
    officer must hold an honest belief that the person committed an offence. The
    officer must subjectively believe that there are reasonable grounds to make
    the arrest:
R. v. Saciragic,
2017 ONCA 91, leave to appeal refused,
    [2017] S.C.C.A. No. 106, at para. 16.  To fulfill the objective requirement, the
    officers belief must be objectively reasonable in the circumstances known to
    the officer at the time of arrest:
R. v. Storrey,
[1990] 1 S.C.R. 241,
    at pp. 250-51;
R. v. Bush
, 2010 ONCA 554, 101 O.R. (3d) 641, at para.
    38;
Saciragic
, at para. 16. The objective inquiry asks whether a
    reasonable person, standing in the shoes of the police officer, would have
    believed that reasonable and probable
[1]
grounds existed to make the arrest:
Storrey,
at pp. 250-51.

[22]

When
    considering whether an officers subjective belief is objectively reasonable,
    the court looks at the objectively discernible facts through the eyes of a
    reasonable person with the same knowledge, training and experience as the
    officer:
R. v. Chehil,
2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47.
    Determining whether sufficient grounds exist to justify an exercise of police
    powers is not a scientific or metaphysical exercise, but one that calls for the
    application of [c]ommon sense, flexibility, and practical everyday
    experience:
R. v. MacKenzie,
2013 SCC 50, [2013] 3 S.C.R. 250, at
    para. 73.

[23]

The
    reasonable grounds standard does not require the establishment of a
prima
    facie
case or proof beyond a reasonable doubt. The test is met where,
    based on all of the circumstances known to the officer, credibly-based probability
    replaces suspicion:
R. v. Debot,
[1989] 2 S.C.R. 1140, at p. 1166;
Hunter
    et al. v. Southam Inc.
, [1984] 2 S.C.R. 145, at p. 167;
R. v. Dhillon,
2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25;
R. v Muller,
2014
    ONCA 780, 122 O.R. (3d) 721, at para. 33.

[24]

Although
    the ultimate question as to whether there are reasonable grounds to arrest
    involves the application of a legal standard to a set of facts, reviewable on a
    standard of correctness, the trial judges factual findings are owed deference:
R. v. Shepherd,
2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. In this
    case, the trial judge made critical findings of fact. He accepted the officers
    evidence and found Sgt. Fuhrman to be entirely compelling and reliable.

[25]

The
    trial judge properly took into account Sgt. Fuhrmans over 15 years investigating
    drugs and his work as an undercover drug officer. It was through the lens of that
    experience that Sgt. Fuhrmans observations had to be considered, including:

(i)

two vehicles parked in a remote part of a parking lot;

(ii)

no markers on the vehicles that might suggest that they were connected
    to a legitimate business;

(iii)

bins of a kind that he had previously seen in clandestine chemical drug
    labs containing Class A
CDSA
precursors, being moved from one trunk to
    another;

(iv)

labels ripped off of the bins, causing Sgt. Fuhrman to believe that the
    bins were not involved in what he described as a legitimate transaction;

(v)

a man emerging from a vehicle carrying a brick-like package in a plastic
    bag, looking similar to cash the officer himself had packaged for undercover
    drug deals in the past; and

(vi)

a noticeable $20 bill showing through the plastic bag.

[26]

Sgt.
    Fuhrman testified that these observations were consistent with other high-level
    drug transactions he had witnessed in the past. Indeed, he testified that he
    had never seen a transaction like this one that did not constitute a drug
    transaction.

[27]

Considering
    the totality of the circumstances, Sgt. Fuhrmans subjective belief that he was
    witnessing a drug transaction was objectively reasonable. There is no error in
    the trial judges conclusion that the officer believed he was witnessing a drug
    transaction and had objectively reasonable grounds to arrest.

[28]

The
    appellant argues that the trial judge failed to take into account innocent
    explanations for many of the facts relied upon to establish reasonable grounds
    for the arrest. For instance, the appellant maintains that legitimate
    trunk-to-trunk transactions can take place, as can cash transactions. He also notes
    that even Sgt. Fuhrman acknowledged that, from his previous exposure to the
    bins, he had found them to contain only Class A precursors and not actual
    prohibited substances.

[29]

In
    further support of his position that there were insufficient grounds to arrest,
    the appellant also points to what he says are numerous exculpatory factors,
    ones that he maintains undermined the objective grounds for arrest. For
    instance, he points to the fact that the CPIC check on the vehicles did not turn
    up anything of concern, that the transaction took place in broad daylight, and
    that the men demonstrated no surveillance-conscious behaviour, to underscore
    that there were insufficient grounds to arrest.

[30]

This
    argument disregards the correct approach to considering the objective
    reasonableness of the arresting officers subjective belief. Facts known to an
    officer at the time of arrest should not be considered within individual silos.
    The question is not whether each fact, standing alone, supports or undermines
    the grounds for an arrest. The question is whether the facts as a whole, seen through
    the eyes of a reasonable person who has the same knowledge, training and
    experience as the arresting officer, make the arrest objectively reasonable.

[31]

Considered
    together, the facts known to Sgt. Fuhrman well supported an arrest. The trial
    judge did not error in coming to this conclusion.

[32]

The
    appellant does not dispute that if the initial arrest was lawful, the search
    incident to arrest was also lawful.

[33]

A
    search incident to arrest rests on three components: (a) the arrest is lawful;
    (b) the search is truly incidental to the arrest, in the sense that it is
    connected to the arrest, either as a means by which to discover and preserve
    evidence connected to the arrest, protect safety, or protect against escape;
    and (c) the search is conducted reasonably:
R. v. Saeed,
2016 SCC 24,
    [2016] 1 S.C.R. 518, at para. 37;
R. v. Caslake,
[1998] 1 S.C.R. 51,
    at paras. 14, 19, 20.

[34]

I
    have already determined that the arrest was lawful. I also find that the search
    was truly incidental to arrest and conducted reasonably. Taking the money from
    the appellants hand and searching for the content of the bins was clearly
    connected to the purpose of the arrest. The arrest arose from these very items
    having been observed. There is no suggestion that the searches were done
    unreasonably. It follows, therefore, that a lawful search took place, incident
    to the lawful arrest.

THE ONGOING SEIZURE

[35]

The
    appellant submits that, even if this court finds that the initial arrest was
    lawful, the grounds for arrest disappeared when the police were unable to
    identify the pills as controlled substances. The appellant maintains that once
    the police were unable to identify the pills, the arrest was abandoned. By
    this submission, I take the appellant to mean that the grounds for arrest were
    undermined because the police no longer had reasonable grounds for the arrest. The
    appellant argues that the legal effect of the abandoned arrest was to require
    the police to return to the appellant and his friend the items that had already
    been seized. I disagree.

[36]

I
    begin with deference to the trial judges findings of fact. The trial judge
    explicitly accepted Sgt. Fuhrmans evidence that, although he did not recognize
    the pills located in the bins, the officer continued to believe that they contained
    a controlled substance: [Sgt. Fuhrman] maintained his belief that he had
    witnessed a drug deal throughout the course of the arrest and in its
    aftermath.

[37]

I
    see nothing that would cause this court to interfere with that factual finding.
    Indeed, it seems like an eminently reasonable conclusion that an experienced
    drug officer looking at 220,000 pills in plastic bags tied with zip ties, placed
    in the type of bins that the officer knew to be associated with clandestine
    chemical drug labs, passed in a trunk-to-trunk transaction, would maintain his
    belief that the pills contained a controlled substance. This belief takes on an
    added layer of reasonableness when one considers that the men involved had just
    exchanged a brick of cash contained in a plastic bag.

[38]

The
    appellant points to two facts that he says fundamentally undermine Sgt.
    Fuhrmans evidence that, following the arrest, he continued to believe that he
    had witnessed a drug trafficking offence: (a) the police conducted only a
    limited search incident to arrest; and (b) the police released the appellant
    from the scene without conditions. The appellant argues that if the police
    truly maintained their grounds for arrest, they would have seized his cell
    phone and, at a minimum, released him in accordance with s. 497(1) of the
Criminal
    Code
.

[39]

This
    argument seems to come down to a suggestion that the failure of the police to
    exercise their discretion at maximum tilt should serve to cast doubt on the
    reasonable grounds for an arrest. This is problematic reasoning. The police have
    broad discretion to exercise their powers in a manner commensurate with the
    circumstances at work. Discretionary decisions that serve to minimize
    intrusions into privacy, and maximize liberty interests, should be encouraged,
    not discouraged. I agree with the trial judge that the fact that Sgt. Fuhrman
    chose not to seize the appellants phone, or conduct a more thorough search incident
    to arrest, merely demonstrates a responsible discretionary call on the
    officers part. It is not
prima facie
evidence that he did not
    continue to maintain his grounds for arrest.

[40]

In
    addition, the decision to release the appellant from the scene was a
    responsible one. Sgt. Fuhrman told the appellant that if the analysis showed that
    the drugs contained controlled substances, the officer intended to summons the
    appellant to court. The fact that the officer did not issue an appearance
    notice or immediately move to have the appellant summonsed to court (both
    options under s. 497(1) of the
Criminal Code
), did not undermine the grounds
    for arrest.

[41]

The
    key fact is that, at the time that the pills and money were lawfully seized,
    the appellant was under lawful arrest. In these circumstances, it was open to
    the police to release the appellant, yet continue their investigation. The
    police were under no obligation to give the lawfully seized items back while the
    investigation continued:
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1
    (Ont. C.A.), at para. 91. It would be undesirable to construct a rule that
    would require the police to commit to a greater intrusion into
Charter
interests,
    only to justify seizures that were lawfully made in the first instance. Accordingly,
    it is open to the police to release someone in the field, all the while
    maintaining a belief that the person committed an offence and that the items
    lawfully seized should be held.

[42]

This
    ground of appeal must also fail.

THE RETURN TO A JUSTICE

[43]

The
    appellant was arrested on June 11, 2012. The s. 489.1(1) report to a justice
    was filed thirty-one days later on July 12, 2012. This was about two weeks
    following receipt of the certificates of analysis, showing that the pills
    contained Schedule IV prohibited substances. The appellant maintains that his
    s. 8
Charter
rights were breached when the police failed to file the
    report to a justice as soon as is practicable
.

[44]

Where
    the police wish to keep something seized during the execution of their duties, s.
    489.1(1)(b)(ii) of the
Criminal Code
requires that they make a report
    to a justice as soon as is practicable. A report filed under s. 489.1(1)(b)(ii)
    allows the seized items to be dealt with in accordance with s. 490(1), which
    grants a justice the power to order the things seized detained or returned. The
    balance of s. 490 contains numerous provisions governing the continued detention,
    use, and return of seized property.

[45]

Section
    489.1(1) applies to seizures made both with and without prior judicial
    authorization:
Backhouse,
at para. 111. The provision fulfills an
    important purpose, providing the gateway to s. 490 of the
Criminal Code
:
R. v. Garcia-Machado,
2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15,
    55;
Backhouse,
at para. 112. Section 489.1 should not be conceptualized
    as a meaningless exercise in paperwork. Filing the initial report under s.
    489.1(1) is the act that places the property within the purview of judicial
    oversight. It provides for a measure of police accountability when dealing with
    property seized pursuant to an exercise of police powers. This provides an
    important measure of protection to the party who is lawfully entitled to the
    property, but also provides a measure of protection to the police who become
    the custodians responsible for the property seized. Allowing for this type of
    oversight is particularly important in the wake of warrantless seizures, ones
    where no prior authorization has been given, meaning the seizures are beyond
    the knowledge of the judicial system.

[46]

The
    appellant argues that thirty-one days to file a report under s. 489.1(1) is simply
    too long and that a s. 8
Charter
breach is obvious on its face.

[47]

There
    is an inherent flexibility built into the assessment of whether the police
    acted as soon as is practicable. Determining whether this requirement has
    been met is a necessarily fact-specific inquiry and one that should only be
    answered after a careful review of all of the evidence, including any
    explanations for why the report was filed when it was:
R. v. Kift,
2016
    ONCA 374, 349 O.A.C. 239, at para. 10.

[48]

The
    appellant did not raise the timing of the report as an actual
Charter
complaint
    in the court below and the
Charter
application was silent on the
    issue.  Instead, counsel argued that the delay between the seizure and the
    filing of the report was a fact that informed other
Charter
issues.
    When the court sought clarification on this position, counsel specifically
    disavowed any attempt to rely upon the thirty-one days to filing as a
    free-standing s. 8
Charter
breach.

[49]

Accordingly,
    the appellant seeks to raise this issue for the first time on appeal. There is
    an insufficient record for this Court to make this fact-sensitive inquiry on
    appeal because the evidentiary record is lacking in specifics. Although the
    officer who filed the report under s. 489.1(1) was asked a few questions about
    the timing of the report, he simply asserted that he had filed it as soon as
    practicable. In these circumstances, the court is without a complete factual
    picture to permit the effective and fair disposition of this issue:
R. v.
    Reid,
2016 ONCA 524, 132 O.R. (3d) 26, at para. 43. I would decline to do
    so.

UNREASONABLE VERDICT ARGUMENT

[50]

The
    appellant maintains that he is the subject of an unreasonable verdict. He argued
    before the trial judge that the certificates of analysis did not reveal the
    actual quantity of the prohibited substances contained in the pills. As such,
    he argued that the Crown was unable to establish anything more than trace
    amounts of prohibited substances in the pills and that this should leave a
    reasonable doubt about whether he knew he was in possession of a controlled
    substance.

[51]

The
    trial judge was satisfied beyond a reasonable doubt that the Crown had proven
    each element of the offence. He concluded on the basis of all of the evidence
    that the appellant must have known what was in the tubs that he was
    transferring and that it would defy common sense to find otherwise. The
    trial judge then reviewed evidence pointing toward that common sense inference,
    evidence that in his view made no other inference  possible.

[52]

Although
    the trial judge may have initially misstated the appellants position regarding
    the quantitative analysis, the matter was raised with him immediately following
    delivery of his reasons for judgment. In response, the trial judge said:

I have nothing further to add other than the fact that I found,
    in the entire circumstances of the transaction, given what has been admitted
    and given what has been found in the evidence and the exhibits and the fact
    that the money was exchanged in that quantity and the amount was exchanged,
    beyond a reasonable doubt that Mr. Canary had knowledge of what was in those
    vats

[53]

Against
    the factual backdrop of this case, the verdict was one that a properly
    instructed jury acting judicially could have rendered:
R. v. Biniaris,
2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. This ground of appeal also fails.

CONCLUSION

[54]

I
    would dismiss the appeal.

Released: March 27, 2018

Fairburn J.A.

I agree K. Feldman
    J.A.

I agree David Brown
    J.A.

[1]

Storrey
was decided under the
    former s. 450(1)(a) of the
Criminal Code,
when the provision read as
    reasonable and probable grounds to believe. Section 495(1)(a) of the
Criminal
    Code,
R.S.C. 1985, c. C-46, removed the reference to probable grounds,
    changing the wording to: believes on reasonable grounds. As noted in
Baron
    v. R.,
[1993] 1 S.C.R. 416, at p. 446, the word probable adds nothing
    additional to the requirement of reasonableness.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Colasimone, 2018 ONCA 256

DATE: 20180316

DOCKET: C63904

Laskin, Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Colasimone

Appellant

James Harbic, for the appellant

Mabel Lai, for the respondent

Heard: November 29, 2017

On appeal from the sentence imposed on September 12, 2016
    by Justice Diane M. Lahaie of the Ontario Court of Justice.

Gans J. (
ad hoc
):

A.

Introduction

[1]

Frank Colasimone was convicted of an armed bank robbery. He was
    sentenced in September 2016 to 14.5 years incarceration, in addition to 6
    months time served, for a total sentence of around 15 years. The trial judge
    also made an order under s. 743(6) of the
Criminal Code
[1]
,
    delaying Mr. Colasimones parole eligibility to at least one half of the
    imposed sentence. The effect of this sentence means that Mr. Colasimone has to
    serve a minimum of 7.5 years in penitentiary.

[2]

In my view, this sentence is demonstrably unfit since it unreasonably
    departs from the fundamental principle of proportionality:
R. v. Orwin
[2]
.

[3]

Alternatively, I would find that the sentence imposed resulted
    from errors in principle since it overemphasized the principles of deterrence
    and public safety, paid but lip service to the appellants prospects for
    rehabilitation (having regard to his history of drug dependency), and
    improperly relied on his past record to augment the sentence imposed.

Crcumstances of the Offence

[4]

In mid-October 2015, the appellant, who was
    then on parole and living in a half-way house, entered a Bank of Montreal
    wearing sunglasses and a hat, with his hood up. He approached a teller while wielding
    a box cutter and demanded all the large bills in the till. Not satisfied with
    what he first received, he demanded more money from the teller, who complied
    under threat and proceeded to give the appellant the bills that were located in
    a safe below his cash tray. The appellant left the bank with about $15,000, almost
    a third of which was in U.S. currency.

[5]

A few days later, the appellant signed out of
    the half-way house again, but failed to return. An arrest warrant was issued as
    a consequence. In the meantime, he had exchanged some of the U.S. funds into
    Canadian dollars at a different bank. He was arrested shortly after this last
    transaction in the possession of roughly a fifth of what had been taken at
    first instance.

[6]

The appellant maintained his innocence
    throughout. He was convicted after a two day trial before a judge of the
    Ontario Court of Justice in Ottawa on one count each of robbery, carrying a
    weapon for purposes of committing an offence, wearing a disguise with intent to
    commit an indictable offence, and money laundering.

[7]

Having regard to the manner in which this
    offence was committed and its surrounding circumstances, reduced to its
    simplest form, the gravamen of the offence is one of robbery. The remaining charges
    are more suggestive of the pathos associated with the appellant and his
    unfortunate circumstances for which he received sentences of five years,
    concurrent.

Circumstances of the Appellant

[8]

The appellants childhood was difficult, and
    included involvement with the Childrens Aid Society. He is, to this day,
    unable to speak about this period in his life, and does not appear to be
    amenable to counselling in that regard.

[9]

As the appellants parole office report dated
    November 2015 indicates (the Report), he has a lengthy, versatile criminal
    history, which includes a number of armed robberies.
[3]
His criminality started when
    he was but 18 and continued intermittently thereafter into the 1990s. There was
    a five year gap in this activity in the early 2000s, at which time he was
    married, employed, and raising a family. All this came to a crashing halt in
    2007 when he was convicted of two counts of robbery, for which he was sentenced
    to 9 years, concurrent, and an unrelated drug offence. He was on parole at the
    time of the commission of the index offences.

[10]

Significantly, his parole officer noted in the
    Report that his offending is linked to substance abuse, which coupled with
    mental health issues, presents the appellant with continuing struggles.

B.

Decision Below

[11]

Prior to imposing a sentence, the trial judge
    noted her mandate under the relevant sections of the
Criminal Code
, including the principles of sentencing found in s. 718 and the
    need for proportionality expressed in s. 718.01.

[12]

After reviewing the psychological profile
    contained in an earlier parole officers report, she went on to highlight the
    appellants record, while acknowledging that he should not be re-punished for
    prior crimes.

[13]

It was her view, however, that the appellants
    criminal history constituted a most aggravating factor. She then proceeded to
    use the dated record to justify her conclusion that the appellant warranted a
    lengthy period of incarceration, which she concluded would act as a specific
    deterrent, having also concluded that there was little likelihood of
    rehabilitation.

[14]

She did note, as well, that she considered the
    planned nature of the robbery on a tempting target with vulnerable employees
    and customers to be an aggravating factor.

[15]

It was her view that the appellant was a threat
    to public safety, and that public protection and deterrence were of paramount
    importance in the imposition of the instant sentence. She determined that the
    sentence ultimately imposed was within the range of the cases with which she
    was provided.

C.

Analysis

[16]

It is trite to say that judges on appeal should
    be reluctant to intervene with the imposition of a sentence, which carries with
    it a broad discretion. Appellate courts have long deferred to courts of first
    instance, which are in the best position to assess the needs of the community
    and those of the offender, having seen and heard the relevant evidence.

[17]

The scope of review is, therefore, limited to
    errors of principle and law and where the sentence is found to be demonstrably
    unfit having regard to the seriousness of the offence and the blameworthiness
    of the offender:
R. v.
Lacasse
[4]
.

[18]

That said, I am of the opinion that the sentence
    imposed in this case is demonstrably unfit as it is not proportionate to the
    appellants individual circumstances and the crime committed. Mr. Colasimone
    suffers from substance abuse, a cocaine addiction, and other mental health
    issues not particularized in the material, and on all accounts is driven to
    crime to feed his addiction.

[19]

Furthermore, while I am not suggesting that
    robbing banks (a crime which can carry with it a life sentence) is not serious,
    the index offence is not the most heinous assault on private property,
    particularly considering the disguise that was employed. Nor would I suggest
    that robbing a bank armed with a box cutter is not frightening for the
    vulnerable employees. It is nevertheless a far cry from a robber armed with a
    semi-automatic or automatic weapon.

[20]

In the final analysis, I am persuaded that a
    sentence of around 15 years in the circumstances of this case was demonstrably
    unfit. The sentence is made all the more oppressive in light of the fact that
    Mr. Colasimone will not be eligible for parole until one half of the sentence
    has been served.

[21]

While not dispositive of the matter, the table
    of cases provided by counsel for the appellant suggests that the range of
    sentence for similar crimes by offenders with similar records would be less
    than the sentence ultimately imposed by the trial judge.

[22]

The case of
R. v. Johnson
, 2012 ONCA 339, 285 C.C.C. (3d) 120

 to which the trial judge referred  was not one to which she, in
    my respectful opinion, could draw a parallel. In the first place, it was a case
    that dealt with proportionality in the context of the totality of sentence.

[23]

Furthermore, the appellant in that case
    committed a rash of nine different bank robberies while he was absent without
    leave from penitentiary in the span of a few weeks. There was no suggestion
    that he had any substance abuse or mental health issues, as in the instant
    case. He was, as Blair J.A. observed at para. 5, an inveterate, if not
    incorrigible, bank robber, a descriptor that cannot be applied to this
    appellant, who as I said, was driven to crime by his addiction. The court in
Johnson

nevertheless reduced the sentence from 14 to 11 years.

[24]

Additionally, I believe the trial judge
    committed two errors in principle: first in underscoring the appellants past
    record as an aggravating factor beyond what was reasonable and permissible, thereby
    re-punishing him for his past offences; and secondly, in over-emphasizing the
    principles of deterrence and public protection, while dismissing the chances of
    rehabilitation. It is worth noting, as well, that the subject sentence exceeds
    any previous sentence imposed by 6 years.

[25]

In the first place, the appellants record,
    although not insignificant, was for the most part dated, and contained periods
    where he was not in breach of the law. 23 of his 27 prior convictions occurred before
    1987; one took place in each of 1993 and 1999, respectively; and one in 2007. This
    record suggests that he might be amenable to some form of control or
    rehabilitation.

[26]

Secondly, as Blair J.A. noted at para. 29 of
Johnson
:

[T]he appellant's potential for rehabilitation
    should not have been disregarded completely, albeit that his antecedents
    suggest the prospects may be dim and that the concepts of denunciation,
    deterrence and protection of the public are paramount in these circumstances.
    As Professor Allan Manson notes  [e]ven when there is little evidence of
    positive rehabilitative prospects, total sentences should not be so long as to
    crush optimism about eventual re-integration.

[27]

I am of the opinion that the sentence in the
    instant case, if not modified, would have a crushing effect on the appellant,
    who at some point will be released into the community. To suggest that the
    combined resources of Corrections Canada and the parole system could not assist
    in the delivery of the sort of behavioural modification program or focused
    counselling outlined in the Report would render rehabilitation meaningless as
    sentencing principle.

D.

Disposition

[28]

I would therefore grant leave to appeal sentence,
    grant the appeal on sentence, and vary the same to 10 years incarceration
    inclusive of time served of 119 days.

[29]

While I am of the view that the order made
    pursuant to s. 743.6 should similarly fall, no relief was sought in respect of
    that order and no argument was made in that regard on the appeal. Hence, the
    appellant is obliged to serve one half of the sentence now imposed.

[30]

In accordance with the authority provided this
    court under s. 743.2, I order that a copy of these reasons be transmitted to
    the Correctional Service of Canada, together with a copy of the Report. I would
    also recommend that the appellant be provided with further substance abuse and
    psychological counselling as is available both in the institutions in which he
    will be incarcerated and in the community on his release into parole.

Released: March 16, 2018
    (S.E.P.)

Arthur
    M. Gans J.

I
    agree. John Laskin J.A.

I
    agree. S.E. Pepall J.A.

[1]
R.S.C. 1985, c. C-46.

[2]
2017 ONCA 841, at para. 53.

[3]
I would observe that the trial judge referenced at length a dated parole
    officer report, one prepared in January 2014 and not the more recent Report.

[4]
2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 16, 42-44, 46.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cuff, 2018 ONCA 276

DATE: 20180321

DOCKET: C61796

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wendell Cuff

Appellant

Marianne Salih, for the appellant

Lisa Csele and Sharon Reynolds, for the respondent

Heard: March 7 and 9, 2018

On appeal from the convictions entered on November 10,
    2015 by Justice Catrina D. Braid of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

OVERVIEW

[1]

This is an appeal from convictions for
    possession of cocaine for the purpose of trafficking and fail to comply with a
    probation order. The convictions rest on a pre-trial ruling dismissing the
    appellants application for the exclusion of evidence arising from alleged
    breaches of ss. 8 and 9 of the
Charter
.
This appeal turns on the correctness of
    that ruling. The appellant maintains that the trial judge erred in concluding
    that:

(i)

he had
    no reasonable expectation of privacy in a vehicle he had been driving;

(ii)

the
    vehicle was seized and searched with legal authority; and

(iii)

it was
    unnecessary to resolve whether he was arbitrarily detained.

[2]

We dismiss the appeal for the reasons that
    follow.

GENERAL BACKGROUND

[3]

Cst. Wilson was
    conducting speed e
nforcement when he observed the
    appellant driving well in excess of the speed limit. The officer took pursuit
    and the appellant eventually brought the motor vehicle he was driving to rest
    in the parking lot of a multi-unit apartment complex. Cst. Wilson positioned
    his vehicle behind the one driven by the appellant.

[4]

As Cst. Wilson was looking at his police
    computer, the appellant got out of his car and approached the officers vehicle.
    Cst. Wilsons drivers side window was down. The officer asked the appellant
    for his licence, insurance and registration. After one to two seconds, the
    appellant ran. Cst. Wilson called for backup and then gave chase on foot.

[5]

Cst. Morton came to assist. He saw a male he
    believed to be the driver running through a field. The officer yelled out to
    the man that he was a police officer and to stop because he was being placed
    under arrest for failing to identify himself. The man looked back at Cst.
    Morton and continued to run. When the officer caught up to him, the appellant
    was placed under arrest for failing to identify himself pursuant to s. 33(3) of
    the
Highway Traffic Act
,
R.S.O. 1990, c. H.8
(
HTA
). The appellant was placed in handcuffs.

[6]

At some point following his arrest, the
    appellant said that his name was Wendell Cuff. Another officer who arrived on
    scene was able to confirm the appellants identity. Although the appellant had lost
    weight since the officer had last seen him, once given his name, the officer
    confirmed that it was Mr. Cuff.

[7]

The vehicle stop had taken place just after 2:50
    p.m. It was 3:08 p.m. by the time that the appellant and officers arrived back
    at the parking lot where the vehicles had been left. The appellant was provided
    with his right to counsel. The officers then commenced computer checks. At 3:39
    p.m. the police discovered that the appellant was on probation, which included
    a term to keep the peace and be of good behavior. Although the police witnesses
    were unclear about who made the decision to arrest for breach of probation, the
    trial judge found as a fact that the appellant was arrested for the breach at
    that time. Cst. Morton was then asked to transport the appellant to the police
    station.

[8]

The vehicle had been left locked and the appellant
    did not have keys in his possession. Despite an extensive police search for
    evidence the appellant may have discarded when he fled, the keys were not found.
    Cst. Wilson testified that he was concerned about the ownership of the vehicle.
    Although he was able to determine that the vehicle was registered to a
    business, the officer had nothing to confirm that it was in the appellants
    lawful possession or had any connection to the private parking lot the
    appellant had left it in.

[9]

The vehicle was towed at 4:10 p.m. to the place
    where the Brantford Police Service stores impounded vehicles. The police then
    conducted an inventory search of the vehicle, resulting in the discovery of a bag
    in the backseat. The bag contained the appellants health card, temporary
    drivers licence and what Cst. Wilson believed to be cocaine. The search was
    halted, the vehicle was resealed and a search warrant was obtained. The
    subsequent search revealed 72.2 grams of cocaine. This seizure gave rise to the
    drug-related conviction.

STANDING

[10]

The appellant maintains that the trial judge
    erred in finding that he had no standing to assert a s. 8
Charter
claim with respect to
the
    vehicle. The appellant emphasizes that, despite his admitted flight from the
    police, he did not abandon his privacy interest in the vehicle. We do not agree
    that the trial judge erred in reaching her conclusion on the standing issue.

[11]

The onus was on the
    appellant to establish his standing to raise a s. 8
Charter
challenge:
R. v. Edwards,
[1996] 1 S.C.R. 128, at para. 45;
R.
    v. M. (M.R.),
[1998] 3 S.C.R. 393, at
    para. 31. It was for him to establish on a balance of probabilities that, in
    the circumstances of this case, he had a reasonable expectation of privacy in
    the motor vehicle where the cocaine was found.

[12]

The trial judge
    correctly approached the standing issue as a threshold one and specifically noted
    the appellants onus of establishing his personal right to privacy in the
    vehicle. She considered the facts of this case against each of the
Edwards
criteria for determining whether the
    appellant had met his onus.

[13]

Although the appellant did not testify, the trial judge
    noted that there was evidence from which a subjective privacy interest could be
    inferred. In particular, she considered the fact that he may have locked the
    doors before he took flight and that the vehicle had been parked at an
    apartment building where his brother resided. Ultimately, though, the trial
    judge concluded that any minimal subjective privacy interest the appellant may
    have had in the vehicle was not objectively reasonable in all of the
    circumstances.
In particular, the trial
    judge considered the following:

(i)

While the appellant had been present in the vehicle when
    driving it, he had deliberately removed himself from the vehicle when he fled.

(ii)

Although the appellant had possession of the vehicle while
    driving it, and it appeared that he had locked the doors before he fled, he did
    not regain possession of it when he and the police officers returned to the
    scene. Nor could he have regained possession, given that the keys had either
    been lost or discarded.

(iii)

The appellant did not own the vehicle.

(iv)

There was no evidence suggesting that the appellant had a
    historical connection to the vehicle.

(v)

There was no evidence that the appellant occupied the vehicle
    with the owners consent and, therefore, no evidence to suggest he had any
    right to admit or exclude anyone from the vehicle.

[14]

We see no error in the trial judges approach. Her legal
    analysis is rooted in the
Edwards
criteria. In the circumstances of this
    case, it was open to the trial judge to conclude
that the appellant had failed to establish his s. 8
Charter
interest in the car.

[15]

In any event,
the trial judges finding
    in this regard had no impact on the s. 8 motion as she went on to consider and
    resolve the other s. 8 arguments, as though the appellant had standing
to advance them.

We now move on to consider those arguments.

THE SEIZURE AND SEARCH OF THE VEHICLE

[16]

The
appellant maintains that the trial judge erred in concluding that the
    vehicle was lawfully seized
.
He makes two specific
    arguments: (a) the trial judge failed to appreciate that Cst. Wilson did not
    have a subjective belief that he was operating under
s. 221(1) of the
HTA
when the vehicle was seized; and, in any event, (b) s. 221(1) of the
HTA
did not apply because the vehicle was
    not apparently abandoned within the meaning of the statutory provision.

[17]

As
    for the appellants first argument regarding the seizure of the vehicle, he
    maintains that an officer must turn his or her mind to the basis of the seizure
    before it is carried out. The appellant points to a portion of Cst. Wilsons
    evidence to suggest that he did not have the subjective belief that he had
    authority to seize the vehicle under s. 221(1) of the
HTA
.
    Accordingly, the appellant maintains that the seizure of the car was unlawful.
    We do not agree
.

[18]

Cst. Wilson initially testified that he thought that the
    vehicle had been abandoned and that he was acting pursuant to the
HTA.
He
    was extensively cross-examined on his subjective belief. It was only after
    counsel had suggested to him that s. 221(1) of the
HTA
only applies
    when vehicles are left on highways, that the officer conceded that he may not
    have had authority to seize the vehicle. Although this may have been a damaging
    admission in some contexts, the trial judge specifically noted in her reasons that
    the cross-examination on this point was potentially misleading. We agree. In
    particular, we note that s. 221(1) of the
HTA
allows for the seizure
    of vehicles apparently abandoned near a highway. Accordingly, the officers
    original evidence about his reliance on the
HTA
was correct. Section
    221(1) of the
HTA
provided authority for the seizure. The provision
    reads:

221

(1) A police officer or an
    officer appointed for carrying out the provisions of this Act who discovers a
    vehicle apparently abandoned on or near a highway or a motor vehicle or trailer
    without proper number plates may take the vehicle into the custody of the law
    and may cause it to be taken to and stored in a suitable place.

[19]

Considering his evidence in its totality, it is clear that,
    as found by the trial judge, Cst. Wilson held the subjective belief that the
HTA
provided him the authority to seize the vehicle. We see no error in the trial judges
    conclusion to this effect
.

[20]

The appellants second argument
    is that the facts of this case did not support a seizure under s. 221(1) of the
HTA
because the
    appellants flight cannot be fairly construed as apparent abandonment.

[21]

In finding that the
    vehicle had been apparently abandoned, the trial judge focussed on two
    authorities that have since been appealed to this court and resolved:
R.
    v. Ellis,
2016 ONCA 598,
132
    O.R. (3d) 510
;
R. v.
    Dunkley,
2016 ONCA 597,
131
    O.R. (3d) 721
. Having regard to all of the
    circumstances, the trial judge concluded that the vehicle had been apparently
    abandoned within the meaning of s. 221(1) of the
HTA.
We see no error in her approach.

[22]

As noted by this court in

Dunkley,
at para. 44, whether a vehicle has been
    apparently abandoned is fact-specific. See also
:
Ellis,
at para. 63. Having regard to the
    following circumstances, it was open to the trial judge to find apparent
    abandonment:

(i)

the vehicle was not
    registered in the appellants name;

(ii)

the appellant was unable
    to produce documentation for the vehicle;

(iii)

the vehicle was left on
    private property, parked behind an apartment building;

(iv)

the police on scene had
    no reason to associate the appellant with the apartment building and, in fact,
    they believed that he did not live in Brantford;
[1]

(v)

the appellant had run
    from the vehicle after being signalled by the police to stop the vehicle; and

(vi)

the keys to the vehicle
    could not be found.

[23]

While the appellant attempted to align the facts in this
    case with those in

Dunkley,
where this court concluded that simply running from a vehicle left at a
    gas station did not constitute apparent abandonment for the purposes of s.
    221(1), we see the facts in this case as being much closer to those in

Ellis.
In particular, like in
Ellis
,
    the appellant attempted to distance himself from a vehicle he had been driving
    by parking it on private property. Like in
Ellis
, the police were
    unable to link the vehicle the appellant had been driving to the location where
    he had left it. And, like in
Ellis
, the police did not believe that
    they could leave the vehicle the appellant had been driving on the private property
    where he had left it
.

[24]

We see no error in the trial judges approach or conclusion
    that the vehicle had been apparently abandoned. Accordingly, it was open to
    the police to seize the vehicle under s. 221(1) of the

HTA
.

[25]

Following the hearing in this matter, the parties were asked
    for submissions as to whether s. 217(4) of the

HTA
provides additional authority for the seizure. Section
    217(4) provides that where the police make an arrest without a warrant, they may
    detain the motor vehicle with which the offence was committed until the final
    disposition of any prosecution under this Act or under the
Criminal Code
.
     Although we heard from the parties on this issue, given our conclusion that
    the trial judge did not err in her approach to s. 221(1), it is unnecessary to
    address this other potential means by which the vehicle could have been lawfully
    seized
.

[26]

Having properly seized the vehicle, the police were under an
    obligation to keep the vehicle and its contents safe. To fulfill this
    responsibility, the police had to conduct an inventory search of the vehicle
:
R. v. Nicolosi
(1998), 40 O.R. (3d) 417 (C.A.), at paras. 29-30.

[27]

Although the appellant argues that the police were really
    searching the vehicle for a purpose unrelated to inventorying its contents, the
    trial judge specifically rejected this suggestion. The trial judge accepted the
    evidence given by the police officers, finding each of them credible. She
    concluded that their primary motivation to search was to inventory the contents
    of the car. This is a purpose that is consistent with this courts judgment in

Nicolosi
.
The fact that the police may have
    suspected that they would find drugs while searching the vehicle did not alter
    their authority to conduct an inventory search
:
R. v. Wint,
2009 ONCA 52, 93 O.R. (3d) 514, at para. 11,
    leave to appeal refused [2009] S.C.C.A. No. 164. Once they found the drugs, the
    police acted responsibly, ceased their search, resealed the car and obtained a
    search warrant
.

[28]

This ground of appeal must also fail
.

DETENTION

[29]

The trial judge concluded that it was
    unnecessary to decide whether the appellants s. 9
Charter
interests had been breached because any such breach would have had
    no impact on the admissibility of evidence located within the lawfully seized
    vehicle.

[30]

The appellant maintains that the trial judge
    erred in failing to give a s. 9
Charter
ruling.
    We agree. The fact that the evidence sought to be excluded had been discovered during
    a constitutionally sound search did not mean that a s. 9
Charter
violation could not have had an impact on the question of
    admissibility. As this court reinforced in
R. v. Pino,
2016 ONCA 389,
130 O.R. (3d) 561
, at para.
    56, the obtained in a manner requirement for exclusion under s. 24(2) of the
Charter
calls for consideration of contextual, temporal and
    causal relationships between
Charter
breaches
    and the discovery of evidence sought to be excluded. In our view, if the
    appellant had been arbitrarily detained, this
Charter
breach could have resulted in a s. 24(2) inquiry. As such, it falls
    to us to consider the s. 9 issue.

[31]

The appellant raises three specific arguments on
    this point. First, the appellant submits that s. 149(1) of the
Provincial
    Offences Act,
R.S.O. 1990, c. P.33 (
POA
) required that he be released as soon as he provided his name to
    the police and they were satisfied of his identity. Section 149 reads:

149
(1) Where a police officer, acting
    under a warrant or other power of arrest, arrests a person, the police officer
    shall, as soon as is practicable, release the person from custody after serving
    him or her with a summons or offence notice unless the officer has reasonable
    and probable grounds to believe that,

(a) it is necessary in the public interest for the
    person to be detained, having regard to all the circumstances including the
    need to,

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to
    the offence, or

(iii) prevent the continuation or repetition of
    the offence or the commission of another offence

The appellant maintains that, as the
    police did not
harbour
any of the concerns set out in
    s. 149, they were required to release him by way of a summons under s. 22 of
    the
POA
.

[32]

Second, the appellant maintains that, although
    the police were entitled to charge him with breaching his probation, they were
    not authorized to arrest him without warrant for this offence.

Section 495(2) of the
Criminal
    Code
states that the police shall not arrest a person
    without a warrant for an indictable offence listed in s. 553, except in certain
    delineated circumstances. Failure to comply with a probation order constitutes
    a s. 553 offence. Section 495(2) reads:

A peace officer shall not arrest a person without
    warrant for

(a) an indictable offence mentioned in
    section 553,

in any case where

(d) he believes on reasonable grounds that
    the public interest, having regard to all the circumstances including the need
    to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or
    relating to the offence, or

(iii) prevent the continuation or repetition
    of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

The appellant argues that none of the
    criteria within s. 495(2) applied to his arrest for breach of probation.
    Accordingly, he maintains that the failure to comply with this provision constituted
    another s. 9 breach.

[33]

Finally, the appellant argues that, even if the
    police had the authority to arrest him without warrant for breach of probation,
    they had a duty under s. 497(1) of the
Criminal Code
to release him as soon as practicable by way of summons or
    appearance notice, unless the criteria within s. 497(1.1) were satisfied. To a
    large extent, those criteria overlap with the ones set out in s. 495(2).

[34]

We do not accept these arguments.

[35]

The appellant was lawfully arrested for failing
    to identify himself under s. 33(3) of the
HTA.
Although s. 33(3) allows that a person who provides his correct
    name and address will be deemed to have provided reasonable identification,
    the appellant did not do so until after he had already been arrested. Given the
    appellants almost immediate flight upon being requested to provide his
    documentation, he was properly deemed to have been refusing to identify
    himself. In these circumstances, his arrest for failing to identify himself was
    entirely justified.

[36]

Following the appellants arrest, the police
    were involved in a serious investigation into who he was, where he lived, and who
    owned the vehicle he seemed so anxious to flee from. The police searched the
    area for about forty minutes after the appellants apprehension to determine if
    he had discarded anything. Although the s. 33(3) offence was not continuing, this
    did not mean that the arrest under this provision had come to an end. Cst.
    Wilson was clear that he was uncertain who owned the vehicle and was concerned
    that it may have been stolen. Among other things, one of the reasons to detain
    under s. 149 of the
POA
is to prevent the
    commission of another offence. In this environment of uncertainty, while the
    investigation was continuing, it was open to the police to detain the appellant
    as they did.

[37]

Computer checks were appropriately done. Within
    about thirty minutes of the appellants apprehension, his breach of probation
    had been discovered. Against the factual backdrop of this case, it was open to
    the police to arrest the appellant on a s. 553 offence for the same reasons that
    justified the ongoing detention under s. 149 of the
POA
.
These same facts also provide
    the rationale for detaining the appellant under s. 497(1.1). Releasing the
    appellant in these circumstances could have led to the continued breach of his
    probation or the commission of another offence.

[38]

The appellants s. 9
Charter
rights were not breached. Having regard to our ss. 8 and 9 conclusions,
    there is no need to address the appellants s. 24(2) arguments.

SECTIONS 10(a) and 10(b)

[39]

The appellant argues for the first time on
    appeal that his ss. 10(a) and (b)
Charter
rights
    were breached. We do not have the benefit of specific evidence on this point or
    the trial judges ruling on the issue. It would be unfair to hear this issue
    for the first time on appeal without having given the Crown the ability to lay
    the evidentiary foundation to properly respond:
R. v. Richards,
2015 ONCA 348,
323 C.C.C. (3d) 490
, at para.
    49. We decline to do so.

CONCLUSION

[40]

The appeal is dismissed.

Paul Rouleau
    J.A.

Grant Huscroft
    J.A.

Fairburn J.A.

[1]
Although it was later discovered that the appellants brother lived at the
    apartment building, none of the officers at the scene of the arrest knew this
    to be the case.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Currie, 2018 ONCA 218

DATE: 20180306

DOCKET: C63740

Strathy C.J.O., Simmons and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hunter Currie

Appellant

Mark Halfyard, for the appellant

Dena Bonnet, for the respondent

Heard: February 28, 2018

On appeal from the sentence imposed on April 12, 2017 by
    Justice Alexander D. Kurke of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The
    appellant pleaded guilty to two counts of dangerous driving causing bodily harm.
    He was sentenced to concurrent sentences of 18 months imprisonment, plus two
    years probation and was prohibited from driving for four years. He seeks leave
    to appeal sentence.

[2]

The
    appellant fell asleep at the wheel of his car around 4 oclock in the afternoon
    on November 22, 2014, on a busy highway in the Sudbury area. He was travelling
    80 kilometers per hour in a 60 kilometer zone. He crossed the centre line and
    ran into the victims car. The victims, a mother and a daughter, suffered
    grievous injuries.

[3]

The
    appellant attempted to dispose of a bag of marijuana after the accident. Drug
    paraphernalia was found in his car. Police observed a smell of alcohol on his
    breath.

[4]

A
    read back by a toxicologist estimated that the appellants blood/alcohol
    content at the time of the accident was between 40 and 90 milligrams in 100
    millilitres of blood. A drug recognition evaluation performed at 8:30 p.m.
    revealed that the appellant was under the influence of cannabis at that time.
    Urine testing revealed the presence of marijuana, cocaine and fentanyl.

[5]

Facts
    admitted on the guilty plea included that:

·

the presence of cocaine in the appellants system was suggestive
    of a recent large dose or a binge dose over a period of days; and

·

while cocaine initially stimulates the body when consumed, it can
    cause a crash phase as the effects wear off, causing sleepiness, among other
    things.

[6]

The
    appellant was a nineteen year old novice driver at the time of the accident. He
    held a G2 licence and was prohibited from driving with alcohol in his body.

[7]

The
    appellant submits that the sentence of 18 months was demonstrably unfit and a
    marked departure from the range in cases such as this. He asserts that the
    sentencing judge made four errors that contributed to an unfit sentence.

[8]

First,
    he submits that the sentencing judge erred in finding the fact that the
    cocktail of drugs [in the appellants system], combined with the alcohol,
contributed
to his inability to stay awake and directly
    contributed to the dangerous driving [emphasis added]. He submits that this
    error caused the sentencing judge to impose a sentence that was outside the
    range for cases of dangerous driving in the absence of impairment.

[9]

We
    do not accept this submission. As a matter of common sense, it is self-evident
    that the combination of drugs and alcohol consumed by the appellant
    contributed, at the very least, to the appellant falling asleep while driving
    in the middle of the afternoon. This is entirely consistent with the admitted
    connection between cocaine use and sleepiness and the admission that the
    appellants urine levels indicated either a large dose or a binge dose over
    several days.

[10]

Second, the appellant
    asserts that the sentencing judge erred in relying on the presence of drug
    paraphernalia in the appellants car as an aggravating factor, as it reflected
    nothing more than bad character. We disagree. The sentencing judge was entitled
    to refer to this factor as supporting the evidence that the appellant had been
    consuming drugs and as evidence of his irresponsibility.

[11]

Third, the appellant
    argues that the sentencing judge erred in imposing a sentence on a youthful
    first offender in order to send a message of deterrence to the community. We do
    not accept this.

[12]

This was a serious
    accident that will have devastating lifelong physical and psychological impacts
    on its victims. The appellants counsel on sentencing acknowledged that
    specific and general deterrence would play a role in the sentence. This offence
    is frequently committed by first-time offenders and young persons, like the
    appellant, of otherwise good character. Particularly because of this factor, it
    is essential that courts send a message to young people, to protect both them
    and the public from the serious consequences of such conduct. Denunciation and
    deterrence must be a paramount consideration.

[13]

It bears repeating
    that as a G2 driver, the appellant was not permitted to have
any
alcohol in his system.

[14]

Finally, the appellant
    points to other cases in which lower sentences have been imposed and submits
    that the sentence was unfit for this offence and for this offender.

[15]

We disagree. The
    appellant acknowledges that the range in cases of this kind extends up to two
    years less a day. See
R. v. Rawn
, 2012 ONCA 487, at paras. 43-44.
    Here, the trial judge considered the relevant authorities and sentencing
    principles, the victim impact statements, a positive pre-sentence report and
    many mitigating factors. He concluded that the presence of drugs and alcohol in
    the appellants system, his status as a novice driver who should not have been
    driving with alcohol or drugs in his body, and the catastrophic consequences of
    the accident demanded a significant sentence.

[16]

We see no error in
    principle in this reasoning. Nor is the sentence unfit.

[17]

Leave to appeal is
    granted, but the appeal is dismissed.

G.R. Strathy C.J.O.

Janet Simmons J.A.

C.W. Hourigan J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dacosta, 2018 ONCA 235

DATE: 20180309

DOCKET: C63415

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Dacosta

Appellant

Apple Newton-Smith, for the appellant

K. Doherty, for the respondent

Heard and released orally: March 6, 2018

On appeal from the conviction
    entered on May 24, 2016 and the sentence imposed on December 5, 2016 by Justice
    D.A. Broad of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant submits that the trial judge erred in applying a higher
    level of scrutiny to the evidence of the appellant than to the Crowns
    evidence.

[2]

The appellants submissions focussed on the trial judges dismissal of
    the appellants exculpatory explanation for his statement made to police on the
    day of his arrest, and the trial judges failure to wrestle with and explain
    why he accepted the complainants testimony of repeated assaults, given the
    improbability of the assault having occurred in the family room with the mother
    being potentially in the next room.

[3]

We disagree.

[4]

The trial judge acknowledged the concern with respect to the likelihood
    of the sexual assaults having occurred in the family room with the mother being
    possibly nearby. He rejected the concern relying largely on the appellants
    admissions at the time of arrest. Those admissions included that he had inappropriately
    sexually touched his stepdaughter and was sorry to have done so.

[5]

These admissions supported the complainants allegations. Contrary to
    the appellants submission, the trial judges rejection of the appellants
    explanation for these admissions was well founded. The trial judge concluded
    that the explanations tendered by the appellant made no sense in the context in
    which the statements were made. Nothing more in our view was required.

[6]

The trial judge carefully considered the evidence before him,
    acknowledged the inconsistencies in the complainants evidence, and drew
    conclusions regarding the credibility and reliability of the witnesses who
    testified. It was open to him to reach the findings he did. His assessment of
    the evidence discloses no error. He did not scrutinize the evidence in an
    uneven fashion.

[7]

With respect to the sentence appeal, the trial judge did not err in
    principle or in law, the sentence imposed is fit and we see no basis to
    interfere.

[8]

For these reasons, the conviction and sentence appeals are dismissed.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. George, 2018 ONCA 314

DATE: 20180326

DOCKET: M48929

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Daniel George

Appellant (Applicant)

Anita Nathan, for the appellant

Stephen Oakey, for the respondent

Heard: March 21, 2018

ENDORSEMENT

I.

OVERVIEW

[1]

The applicant, Daniel George, applies under s. 520 of the
Criminal
    Code
to review the terms of his judicial interim release before trial
    granted by a judge of the Superior Court of Justice on October 20, 2017.

[2]

Section 520(1) of the
Criminal Code
provides:

If a justice  makes an order under subsection 515(2), (5),
    (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b),
    the accused may, at any time before the trial of the charge, apply to a judge
    for a review of the order.

[3]

There is concurrent jurisdiction in the Superior Court of Justice and
    this court to conduct a bail review under s. 520:
R. v. Durrani
, 2008
    ONCA 856, 94 O.R. (3d) 359 (In Chambers), at para. 16. This results from the
    definitions of superior court of criminal jurisdiction and judge in ss.  2
    and 493 of the
Criminal Code
including both judges of the Superior
    Court of Justice of Ontario and the Ontario Court of Appeal. See also Gary T.
    Trotter,
The Law of Bail in Canada
,
    loose-leaf (2017-Rel. 2), 3d ed. (Toronto: Carswell, 2010), at p. 8-3.

[4]

Notwithstanding that concurrent jurisdiction, absent special
    circumstances, courts of appeal should deal with bail pending appeal and
    superior courts should deal with bail prior to and during a trial:
Durrani
,
    at para. 34.

[5]

The applicant has not demonstrated special circumstances. I therefore
    dismiss his application.

II.

HISTORY OF THE PROCEEDING

[6]

On March 26, 2017 the applicant (and his co-accused) were charged with
    three counts of possession of a controlled substance  cocaine (254.66 gm),
    crack cocaine (21.18 gm), and heroin (3.35 gm)  for the purposes of
    trafficking contrary to s. 5 of the
Controlled Drug and Substances Act
,
S.C. 1996, c. 19
.

[7]

On July 20, 2017 the applicant applied for bail before Justice of the
    Peace Wong. Because the applicant was charged with drug trafficking, the
    presumption in favour of pre-trial release did not apply and he bore the burden
    of justifying his release:
Criminal Code
, s. 515(6)(d).

[8]

The Justice of the Peace detained the applicant. She ruled the strength
    of the Crowns case and the applicants record raised substantial secondary
    ground concerns that if released on bail, the applicant would most likely
    return to the drug trade. Justice of the Peace Wong concluded that the proposed
    plan of release, including the surety proposed, was insufficient to address
    those concerns.

[9]

On August 17, 2017 the applicant brought a bail review application
    before Justice B. OMarra of the Superior Court of Justice. OMarra J. dismissed
    the application. The applicant did not dispute that any form of release would
    require a surety and terms. O'Marra J. found the criminal record of the surety,
    and the incremental disclosure of the true extent of his record, rendered the
    surety unqualified to act. He concluded the proposed plan of release did not
    address the secondary ground concerns and dismissed the application.

[10]

On
    October 20, 2017 the applicant brought a further s. 520 application before
    Justice Clark of the Superior Court of Justice (the Review Judge). The
    applicant proposed a new plan of release, which included a form of house arrest.
    The Crown had consented to the plan, which involved two new sureties. The
    applicant proposed residing with one of the sureties.

[11]

The
    Review Judge expressed several concerns about the plan, in particular that: (i)
    the employment of the surety with whom the applicant proposed to live would
    leave him on his own eight to twelve hours each working day
;
(ii) the applicants history clearly showed
    he had been a drug dealer for some time
; and
(iii) he had breached probation and recognizance orders
.

[12]

The
    Review Judge, with some reluctance, agreed to release the applicant. However,
    he added terms of release not contained in the proposed plan of release: (i) a
    bi-weekly reporting requirement;
and
(ii)
    prohibitions on possessing a cellphone and associating with any person with a
    criminal record unless a member of his immediate family.

[13]

The
    jointly proposed plan of release would have required Mr. George to remain in
    his residence at all times, except: (i) while in the direct and continuous
    presence of a surety; (ii) while going directly to and from, and while at,
    work; (iii) while going directly to and from court; or (iv) during a medical
    emergency.
However, the
Review Judge
    refused to include a term that the applicant could travel to and from and
    remain at a place of work unaccompanied by a surety. That decision was based
    upon the state of the record before him. Nevertheless, the Review Judge indicated
    he would be open to reconsidering the issue with better evidence: [The
    applicant] is going to have to get a job and come to this court for a bail
    review.

[14]

In
    granting the applicant release from detention on terms, the Review Judge
    stated:

Mr. George, I am impressed by your sureties. They seem like
    decent hard-working upright people, and they are the only reason you are getting
    out of jail today. You have a dismal criminal record, and you appear to me to
    be nothing more than a drug dealer. And I would not let you out, but for the
    fact that you have good sureties, and because both sides are consenting here.
    Other than that, you can stay exactly where you are pending trial. I do not see
    the case against you as being all that weak. In fact, quite the opposite, I see
    it as being quite strong, but I am not the trial judge, so that is fine. It is
    with some misgiving that I am going to let you out, but listen to me now when I
    tell you, if there is one breach, any sort of breach, and there is not going to
    be any more bail. You are going to sit in jail until your trial. If that breach
    be discovered, and you be arrested, you will not be getting another bail.

III.

THE PRESENT APPLICATION

[15]

The
    applicant applies for a review of that order under s. 520 of the
Criminal
    Code
. He has filed evidence from himself and his sureties that certain terms
    of the house arrest are too onerous. He has also filed updated evidence about
    his employment prospects. A March 5, 2018 letter from a fitness centre confirms
    the applicant may continue his training there as a volunteer personal trainer.
    Upon completion of that training and certification, the fitness centre will
    offer the applicant full-time employment.

[16]

The
    applicant asks this court to vary the terms of house arrest to
accord largely with
those jointly proposed
    before the Review Judge.
[1]

[17]

The
    respondent is prepared to consent to the substance of the variation order
    sought by the applicant should the applicant apply to the Superior Court of
    Justice under s. 520. However, the respondent submits this court should decline
    to exercise its jurisdiction under s. 520 because no special circumstances
    exist.

IV.

ANALYSIS

[18]

The
message in
Durrani
was simple and
    clear: courts of appeal should deal with bail pending appeal and superior
    courts should deal with bail prior to and during a trial. Any departure from
    that clear division of labour requires an applicant to demonstrate special
    circumstances that would justify an appellate court exercising its concurrent
    jurisdiction under s. 520 of the
Criminal Code
.

[19]

As
    MacPherson J.A. stated in
Durrani
,
at
    para. 22,
what constitutes special circumstances has been defined quite
    narrowly. He went on to describe examples of special circumstances found in
    the case-law: (i) where there has been a substantial period of delay due to the
    absence of a transcript from the bail review, the superior court judge refused
    to proceed without the transcript, and it is essential and urgent that the
    matter be dealt with; (ii) where no superior court judge is readily available;
    and (iii) where two superior court judges on two bail applications applied
    differing interpretations of s. 515 of the
Criminal Co
de and the case
    law.

[20]

None
    of those special circumstances exist in this case.

[21]

Instead,
    the applicant asks this court to exercise its concurrent jurisdiction for other
    reasons. He argues the Review Judge committed four legal errors that merit
    correction by this court: (i) he rejected jointly proposed conditions of
    release; (ii) he failed to provide sufficient reasons for rejecting the jointly
    proposed release conditions; (iii) he failed to impose the least restrictive
    conditions necessary in all of the circumstances; and (iv) he imposed
    conditions unrelated to the secondary grounds of detention, which was the
    ground of concern raised.

[22]

The
    applicant submits this court should exercise its jurisdiction in order to give
    direction on when a review judge may reject a joint submission. The applicant
    urges this court to apply the public interest test in
R. v. Anthony-Cook
,
    2016 SCC 43, [2016] 2 S.C.R. 204, regarding joint submissions on sentence to
    bail review hearings under s. 520. If that test is applied, the applicant
    contends the terms of release jointly proposed to the Review Judge ought to
    have been accepted.

[23]

I
    am not persuaded by the applicants submission.

[24]

First,
    it is far from clear a need exists for this court to clarify when a review
    judge may depart from a jointly proposed release plan. The Supreme Court of
    Canada recently considered the issue. In
R. v. Antic
, 2017 SCC 27,
    [2017] 1 S.C.R. 509, the court stated, at para. 68:

Of course, it often happens that the Crown and the accused
    negotiate a plan of release and present it on consent. Consent release is an
    efficient method of achieving the release of an accused, and the principles and
    guidelines outlined above do not apply strictly to consent release plans.
Although
    a justice or a judge should not routinely second-guess joint proposals by
    counsel, he or she does have the discretion to reject one. Joint proposals must
    be premised on the statutory criteria for detention and the legal framework for
    release
. [Emphasis added]

[25]

Second,
    the applicant casts his argument in terms of seeking a ruling from Ontarios
    highest court regarding joint submissions on the form and terms of release.
    The applicants tone is one of requesting appellate intervention in respect of
    errors of law in order to give guidance to lower courts in this and other
    cases. However, there is no right of appeal to the Court of Appeal from a bail
    order made by a judge on the authority of ss. 520 or 521:
R. v. Smith
,
    2003 SKCA 8,
227 Sask. R. 279,
at para.
    25; and
Antic
, at para. 18.

[26]

I
    would also observe that on this s. 520 application I am sitting as a single
    judge of a superior court of criminal jurisdiction, which in Ontario means the
    Court of Appeal and the Superior Court of Justice. The applicant asks that I
    exercise a jurisdiction also possessed by judges of the Superior Court of
    Justice. In such circumstances, my decision has no binding effect on any other
    judge of a superior court of criminal jurisdiction in Ontario sitting on a
    similar application.

[27]

Next,
    the fact that the intended review is based on alleged errors of law does not
    qualify, by itself, as a special circumstance justifying a judge of an
    appellate court to entertain a review application under s. 520. Judges of a
    provincial superior court can intervene on a s. 520 application if the justice
    has erred in law:
R. v. St-Cloud
, 2015 SCC 27, [2015] 2 S.C.R. 328, at
    para. 121. Further, in
Durrani
, at para. 30, this court agreed with
    the view expressed by the Manitoba Court of Appeal in
R. v. Zeneli
, 2003
    MBCA 50,
173 Man. R. (2d) 175
, at para. 9,
    that judges of the provincial superior court will fulfill their
    responsibilities by finding judicial error if error indeed exists and by
    exercising an independent discretion if the circumstances call for an
    independent discretion.

[28]

Finally,
    the evidence filed on behalf of the applicant does not disclose any special
    circumstance. It describes a quite ordinary circumstance  the applicant and
    his sureties find the conditions of release to be onerous; they would like them
    changed; and there is evidence about possible employment that was not available
    at the October 2017 review. The respondent is prepared to consent to the
    substance of the modified release terms the applicant proposes. A review under
    s. 520 before a judge of the Superior Court of Justice is the appropriate place
    to seek such a modification. No need exists for this court to exercise its
    concurrent jurisdiction.

V.

DISPOSITION

[29]

For
    the reasons set out above, I dismiss the application, without prejudice to the
    applicant renewing it before a judge of the Superior Court of Justice.

David Brown J.A.

[1]
The difference concerns cell phone possession. The Review Judge had included a
    condition prohibiting the applicant from possessing any cell phone. The
    applicant seeks a variation that would permit him to possess one cell phone.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hewitt, 2018 ONCA 293

DATE: 20180323

DOCKET: M48770 (C64079)

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Amanda Hewitt

Appellant (Moving Party)

Robert J. Reynolds, for the moving party, appearing via videoconference

Avene Derwa, for the responding party

Heard: March 20, 2018

REASONS FOR DECISION

OVERVIEW

[1]

On June 19, 2017 the appellant, Amanda Hewitt, pleaded guilty to and was
    convicted of one count of weapons trafficking contrary to s. 99(1)(a) of the
Criminal
    Code
. The facts read in by the Crown, which were accepted by the
    appellant, stated that she had sold nine firearms to a police agent, including
    shotguns and rifles.

[2]

As a result of a joint submission, on June 21, 2017 the appellant was
    sentenced to the mandatory minimum sentence of three years incarceration:
Criminal
    Code
, s. 99(2)(b).

[3]

On February 16, 2018 Miller J.A. granted the appellant leave to appeal
    her sentence. The appellant will argue that the mandatory minimum sentence for
    the offence contravenes s. 12 of the
Canadian Charter of Rights and
    Freedoms
.

[4]

Her appeal is set for hearing on June 18, 2018.

[5]

The appellant seeks judicial interim release pending the hearing of her
    appeal. The Crown opposes. However, if judicial interim release is granted, the
    parties have agreed on the terms of release.

[6]

For the reasons that follow, the application for interim release is
    dismissed.

ANALYSIS

[7]

The Crown submits the appellant has not established that her appeal has
    sufficient merit to warrant release. The Crown also opposes the application on
    the basis the appellant has not established that her detention is not necessary
    in the public interest.

The merits of the appeal

[8]

In granting leave to appeal her sentence, Miller J.A. concluded her
    appeal was arguable. Although the appellant had not challenged the
    constitutionality of the mandatory minimum sentence below, Miller J.A. stated:

Although an appellate court will generally not entertain a
    constitutional argument on appeal that was not argued below, it has a
    discretion to do so. In my view, it is arguable that the discretion be
    exercised in circumstances where a provision of the [
Criminal Code
]
    has been found to be constitutionally infirm in previous judgments and no one
    brought this to the attention of the sentencing judge.

Although the Crown argues that the appellant could not benefit
    from the invalidation of the mandatory minimum in any event, this is not
    self-evident, and what constitutes a fit sentence may be impacted by the fresh
    evidence that Mr. Reynolds has assembled.

There is an arguable basis for the appeal and I am satisfied
    that leave to appeal sentence should be granted.

[9]

When considering whether to grant bail pending a sentence appeal under
    section 679(4)(a) of the
Criminal Code
, the court considers whether
    the appellant has established that the appeal has sufficient merit that, in
    the circumstances, it would cause unnecessary hardship if he were detained in
    custody.

[10]

As
    Justice Trotter notes in
The Law of Bail in Canada
, loose-leaf
    (2017-Rel. 2),
3d ed. (Toronto: Carswell, 2010),
at pp. 10-39 to 10-40, the link in s. 679(4)(a) between sufficient merit and
    unnecessary hardship is inextricable: The applicant must demonstrate that the
    appeal is sufficiently meritorious such that, if the accused is not released
    from custody, he/she will have already served the sentence as imposed, or what
    would have been a fit sentence, prior to the hearing of the appeal. It prevents
    the applicant from serving more time in custody than what is subsequently
    determined to be appropriate. As he observes: This balancing of factors in s.
    679(4)(a) strikes a familiar chord. It is reminiscent of the tension between
    enforceability and reviewability embodied in the public interest.

[11]

The
    appellant argues that the reviewability interest should prevail in the circumstances
    of this case. She points to the decision of the Supreme Court of Canada in
R.
    v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, where, in the context of its
    discussion of the public interest in s. 679(3)(c), the court stated, at para.
    48: Where it appears that all, or a significant portion, of a sentence will be
    served before the appeal can be heard and decided, bail takes on greater
    significance if the reviewability interest is to remain meaningful.

[12]

The
    appellant was sentenced to three years imprisonment on June 21, 2017. By the
    time the appellants appeal is heard, she will have served almost a full year
    in custody. Her statutory release date is February 19, 2019. Her warrant expiry
    date is December 20, 2019.

[13]

The
    appellant submits that in the event her sentence appeal is granted and the
    panel concludes the three year sentence was not fit and reduces it, she risks
    serving more time in custody than would otherwise be required. She contends
    that should her appeal be granted, a fit sentence would have been 12 to 18
    months in custody.

[14]

I
    am not persuaded by the appellants submission.

[15]

First,
    although not determinative, I would observe that the appellant was eligible for
    day parole on December 21, 2017. However, her day parole hearing will not be until
    June 2018. Although the evidence is less than clear on the point, it appears
    the appellant delayed in applying for day parole. As well, the appellant will
    be eligible for full parole on April 21, 2018 but she has waived her full
    parole hearing.

[16]

Second,
    there is no dispute between the parties that a fit sentence for this offence
    could include a term of imprisonment in a penitentiary. If her sentence appeal
    is granted, the appellant plans to submit that several mitigating factors
    involving her background should result in a sentence of less than two years.

[17]

However,
    on its part the Crown intends to argue that a relevant aggravating factor was
    the appellants conviction on April 4, 2017 for another weapons offence - the
    unauthorized possession of a prohibited or restricted weapon contrary to s.
    91(2) of the
Criminal Code
.

[18]

As
    a result, the appellant has not persuaded me that it is more probable than not
    that a successful sentence appeal would result in a significantly lower
    sentence than that imposed at trial. Of course, I reach this conclusion based
    on the record before me. The panel will have the benefit of a more fulsome
    record.

[19]

While
    the appellants appeal has arguable merit, I am not satisfied it has sufficient
    merit such that it would cause unnecessary hardship if she were detained in
    custody within the meaning of s. 679(4)(a).

The public interest

[20]

The
    Crown also opposes the application on the basis the appellant has not
    established that her detention is not necessary in the public interest.

[21]

The
    public interest criterion in s. 679(3)(c) of the
Criminal Code
consists of two components: public safety and public confidence in the
    administration of justice:
Oland
, at para. 23. Section 679(4)(c),
    which applies to sentence appeals, contains identical wording to s. 679(3)(c).

[22]

Two
    factors relevant to the public interest criterion are raised on the record.

[23]

First,
    the appellant was detained in custody until her trial on the tertiary ground.
    On consent, she was released for the two days between her conviction and sentencing
    so that she could put her affairs in order. As a basic principle, bail should
    not be more readily accessible for someone who has been convicted of a crime
    than for someone who is awaiting trial and is presumed innocent:
Oland
,
    at para. 33. In the present case, this factor weighs towards enforceability.

[24]

Second,
    the public safety component of the public interest criterion tracks the
    secondary ground requirements governing an accuseds release pending trial:
Oland
,
    at para. 24. Even where public safety concerns fall short of the substantial
    risk mark, they will remain relevant under the public confidence component and,
    in some cases, can tip the scale in favour of detention:
Oland
, at
    para. 39.

[25]

The
    Crown has adduced an email from the appellants parole officer in which she
    expresses the opinion that at this time the appellants risk is not manageable
    on a day parole release as she has not sufficiently addressed/mitigated her
    risk factors. The Crown has also put forward evidence that at the time of the
    appellants arrest on the charge to which she pled guilty, she was out of
    custody on another charge on a promise to appear that contained the condition
    she not be found in possession of any weapons. Combined, this evidence raises a
    public safety concern that points toward enforceability.

[26]

Accordingly,
    the appellant has not persuaded me that her continued detention is not necessary
    in the public interest:
Criminal Code
, s. 679(4)(c).

DISPOSITION

[27]

For
    the reasons set out above, I dismiss the application. It is, of course, open to
    the appellant to renew her application before the panel in three months time
    in the event the panel reserves its decision.

David Brown J.A.