COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Victoria, 2018 ONCA 69

DATE: 20180125

DOCKET: C61881

Watt, Brown and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brayan Victoria

Appellant

Breana Vandebeek, for the appellant

Christopher G. Walsh, for the respondent

Heard: November 21, 2017

On appeal from the conviction entered on December 10, 2015 and
    the sentence imposed on March 11, 2016 by Justice John T. Lynch of the Ontario
    Court of Justice.

By the Court:

[1]

After a trial before a judge of
    the Ontario Court of Justice, the appellant was convicted of three counts of
    possession of controlled substances  cocaine, MDMA and marijuana  for the
    purpose of trafficking, and single counts each of possession of a prohibited
    device and possession of the proceeds of crime.

[2]

The trial judge imposed a total
    sentence of 3.5 years in the penitentiary, after awarding credit of 18 months
    for pre-disposition custody.

[3]

The appellant appeals both
    conviction and sentence.

[4]

At the conclusion of oral
    argument, we dismissed both appeals. We promised to provide reasons to explain
    our decision. What follows fulfills that promise.

THE BACKGROUND FACTS

[5]

The grounds of appeal advanced
    render a detailed recital of the circumstances of the offences unnecessary. A
    brief overview will suffice, with further details provided to the extent it is
    essential for an understanding of the grounds of appeal advanced and our
    decision on their merits.

[6]

The appellant was tried jointly
    with his common law wife. The case for the Crown consisted almost entirely of
    evidence obtained by searches conducted under s. 11(1)
CDSA
warrants executed at the couples residence and in a
    motor vehicle to which each had access. A third warrant executed at what police
    had termed a safe house yielded nothing of evidentiary value.

[7]

At the outset of trial
    proceedings, the appellant and co-accused challenged the
CDSA
warrants on the basis that the information to obtain
    (the ITO), which was common to the warrants in issue, did not, indeed could
    not, establish the statutory and constitutional requirements for their
    issuance. As the initial step in their challenge, trial counsel (not Ms.
    Vandebeek) sought leave to cross-examine the author of the ITO (the affiant).

The Motion for Leave to Cross-Examine

[8]

The motion for leave to cross-examine the affiant extended for three
    days before Westman J. of the Ontario Court of Justice, who was scheduled to
    preside over the trial. Counsel sought leave to cross-examine the affiant on
    seven discrete but related grounds, two of which counsel abandoned during oral
    argument.

The Initial Ruling

[9]

During the oral argument of the motion, Westman J. engaged and
    challenged trial counsel on the issues advanced as appropriate for leave to
    cross-examine the affiant. On February 27, 2015, at the conclusion of three
    days of oral argument on the motion, Westman J. said:

Okay, if you want a written ruling Ill do it, but having
    reviewed the law and expressed myself in our exchanges, the ruling will be that
    the application is denied in terms of the right to cross-examine the affiants,
    and so unless you want a written decision, Ill simply leave it at that.

[10]

After a brief adjournment, counsel
    for the co-accused took up Westman J.s invitation to provide written reasons.
    Proceedings were adjourned to April 10, 2015.

The Formal Ruling

[11]

When
    proceedings resumed on April 10, 2015, Westman J. gave lengthy oral reasons in
    which he dismissed the defence motion to exclude evidence of the results of the
    searches conducted under the s. 11(1)
CDSA
warrants. Unfortunately,
    this motion had not yet been argued. The only motion argued at this point in
    the proceedings had been the motion for leave to cross-examine the affiant of
    the ITO. And it was that motion on which counsel had requested, and Westman J.
    had promised to provide, written reasons.

[12]

The
    proceedings were adjourned to June 3, 2015 for formal commencement of the
    trial.

The Mistrial Motion

[13]

On
    June 3, 2015, trial counsel for the appellant and co-accused asked Westman J.
    to declare a mistrial. The basis advanced was that dismissal of their s. 8
    challenges to the searches and their motion to exclude the evidentiary fruits
    of those searches under s. 24(2), without having heard argument on either
    issue, gave rise to a reasonable apprehension of bias. The only way to remedy
    what had occurred, the submissions continued, was to terminate the proceedings
    before Westman J. and begin anew before another judge of the same court.

The Mistrial Ruling

[14]

The
    parties made further submissions on the motion to declare a mistrial on June 4,
    2015. At the conclusion of argument, Westman J. granted the motion and declared
    a mistrial.

The New Trial Proceedings

[15]

On
    June 8, 2015, the parties appeared before Lynch J. who was to preside over the
    trial. The first order of business was to determine whether Lynch J. considered
    himself bound by Westman J.s brief ruling refusing the defence leave to
    cross-examine the affiant of the ITO.

[16]

After
    hearing argument, Lynch J. ruled that he was bound by Westman J.s ruling
    refusing leave to cross-examine the ITO affiant. The parties then proceeded to
    make submissions on the motion to exclude evidence of the results of the
    searches.

The Section 8 Infringement Ruling

[17]

On
    September 2, 2015, Lynch J. dismissed the motion to exclude evidence found
    during the searches authorized by the s. 11(1)
CDSA
warrants. The
    trial judge was satisfied that the ITO contained information on the basis of
    which the warrants could have been issued. It followed that the searches were
    not constitutionally flawed and the evidence obtained on their execution was
    admissible at trial. Trial counsel did not suggest that the searches were
    unreasonably executed.

The Trial Proceedings

[18]

When
    proceedings resumed after Lynch J. had ruled on the constitutional integrity of
    the searches, the defence agreed to have the Crown read an agreed statement of
    fact that established the essential elements of each count with which the
    appellant was charged. The defence made no submissions. Lynch J. made findings
    of guilt on each count, entered convictions and later imposed sentence.

The Appeal from Conviction

[19]

On
    the appeal from conviction, the appellant advanced three grounds of appeal. As
    I would paraphrase them, the appellant says:

i.

that Lynch J. erred in deciding he was bound by the ruling made by
    Westman J. refusing leave to cross-examine the ITO affiant;

ii.

that Westman J. erred in failing to grant leave to cross-examine the
    affiant of the ITO; and

iii.

that Lynch J. erred in failing to find that the search warrants could
    not have been granted on the grounds disclosed in the ITO and, as a
    consequence, in failing to exclude the evidence found during the searches.

Ground #1: The Binding Effect of the Prior Ruling

[20]

The
    initial complaint concerns the trial judges decision about the effect of the
    prior ruling of Westman J. refusing leave to cross-examine the ITO affiant. To
    better understand this claim of error, some further background is helpful.

The Motion

[21]

As
    proceedings began before Westman J., counsel for the co-accused sought leave to
    cross-examine the ITO affiant on seven issues:

i.

The affiants conclusion that 22 Cecile Drive was a safe house (a
    location where illicit items are stored, away from detection to protect against
    robberies and seizures after police detection);

ii.

The affiants belief that the appellants vehicle had undergone a change
    in licence plate and registration as a technique to avoid police detection;

iii.

The affiants inclusion of information related to multiple confidential
    informants (CIs) believed to be reliable but also a statement that he was
    not relying on their information in relation to the issuance of the warrant;

iv.

The affiants reliance on information from reports dated September 2010
    and September 2011 regarding the appellant, provided by the Waterloo Regional
    Police;

v.

The information provided by the sub-affiant, Oliver, where it is alleged
    that on November 24, 2013 the police witnessed the appellant exit 46 Cedarwoods
    Crescent and retrieve a bag which was then transferred to an unknown female;

vi.

The information provided by the sub-affiant, Stolf, where he allegedly
    observed a hand-to-hand transaction involving the appellant on November 25,
    2013; and

vii.

The information provided by the sub-affiant, Magee, in regards to his alleged
    observation of the silver BMW in the driveway of 46 Cedarwoods Crescent along
    with a black Volkswagen.

During the course of argument, counsel abandoned issues
    v and vii.

The Ruling on the Motion

[22]

During the three days of argument
    on the motion for leave to cross-examine the ITO affiant, Westman J. engaged
    counsel in discussions about the merits of each ground advanced and
    unhesitatingly expressed his views about their validity as the subject of
    proposed cross-examination.

[23]

On the first issue  the safe
    house  Westman J. pointed out the accuracy of the underlying factual recital
    in the ITO and identified the nub of the appellants complaint as his quarrel
    with the inference the affiant drew from the underlying facts. Trial counsel
    agreed that the inference that the affiant drew was reasonably available on the
    stated facts.

[24]

The discussion of the second issue
    followed a similar course. The affiant had drawn an inference about the purpose
    behind the plate change. Trial counsel acknowledged the accuracy of the
    threshold facts, but contested the inference the affiant drew from them. Once
    again, Westman J. pointed out the availability of the disputed inference and
    queried whether questions about it were a proper subject of cross-examination.

[25]

The third issue  the inclusion of
    the unverified CIs  faults the affiant for failing to follow up on the
    accuracy of the information and proposed cross-examination on that ground. But,
    as Westman J. observed to counsel, the affiant fully acknowledged the absence
    of any verification and did not rely upon it to establish the conditions
    precedent for the issuance of the warrant.

[26]

The fourth issue  the reports
    from the Waterloo Regional Police Service  counsel agreed had been satisfied
    by a disclosure order made by Westman J.

[27]

In connection with the final issue
    on which the appellant sought leave to cross-examine a sub-affiant  the characterization
    of an observation as a hand-to-hand drug transaction  Westman J. noted that,
    once again, the complaint had to do with the characterization of what occurred,
    not the accuracy of the observation. Counsel had the notes of the sub-affiant
    who witnessed the transaction. The proposed exploratory cross-examination would
    not advance the inquiry.

[28]

At the conclusion of argument,
    Westman J. dismissed the motion for leave to cross-examine. Rather than giving
    a formal ruling, he relied on what he had said during his exchanges with
    counsel.

The Application of the Leave Ruling

[29]

When
    counsel appeared before Lynch J. to recommence the trial proceedings, the Crown
    (not Mr. Walsh) sought an order under s. 653.1 of the
Criminal Code
that the rulings made by Westman J., including his refusal of leave to
    cross-examine the ITO affiant, were binding or applied to the second trial.

[30]

Defence
    counsel agreed that the disclosure ruling applied, but not the ruling
    prohibiting cross-examination of the ITO affiant or the ruling rejecting the
    claim of s. 8
Charter
infringement. The defence wanted to re-argue the
    motion for leave to cross-examine on the basis of the same material and on the
    same grounds. Defence counsel argued further that Westman J. had failed to
    provide a formal ruling on the leave issue, thus there was nothing available for
    incorporation under s. 653.1.

The Ruling under Section 653.1

[31]

According
    to Lynch J., s. 653.1 creates a presumption in favour of preserving prior
    rulings when proceedings are recommenced after a mistrial has been declared.
    However, the presumption is rebuttable, provided a party opposed to
    preservation can satisfy the judge presiding in the later proceedings that it
    would not be in the interests of justice that the prior rulings be binding at
    the new trial.

[32]

To
    determine whether the presumptive rule or its exception should control the
    result, Lynch J. considered several factors:

i.

the existence or absence of new evidence;

ii.

the existence or absence of new arguments;

iii.

the merits of any new arguments that might be advanced;

iv.

any prejudice created by the inability to relitigate the issues; and

v.

the public interest in the timely and efficient trial of allegations of
    criminal offences.

[33]

In
    this case, the trial judge was satisfied that when proceedings began afresh
    before him, no new evidence was to be tendered (indeed no evidence was adduced at
    all) or fresh argument to be advanced. It was to be, to borrow a redundancy,
déjà
    vu
all over again. The issue raised had been fully canvased in the prior
    proceedings. The conclusion Westman J. had reached on the motion for leave to
    cross-examine the ITO affiant had nothing to do with the argument presented or
    the determination made on the motion for a mistrial. The public interest in
    timely proceedings expeditiously conducted and the absence of any prejudice to
    the appellant favoured application of the presumptive rule. And so it was that Lynch
    J. decided that the earlier ruling refusing leave to cross-examine the ITO
    affiant would bind the parties when the trial proceedings began again.

The Arguments on Appeal

[34]

In
    this court, the appellant acknowledges that the purpose of the presumptive rule
    enacted by s. 653.1 is to encourage the retention of prior rulings, thus to
    avoid the time and expense associated with relitigation of issues already
    decided, as well the prospect of conflicting decisions on the same issues and
    evidence. That said, the section plainly recognizes that circumstances will
    exist where incorporation of prior rulings is not in the interests of justice.

[35]

The
    appellant says that the phrase interests of justice in s. 653.1 has not yet
    been the subject of appellate consideration. That said, its inclusion in other
    statutory provisions and common law rules signals the existence of a judicial discretion
    to be exercised on a case-by-case basis taking into account societal concerns,
    the interests of individual accused and the integrity of the criminal trial
    process.

[36]

In
    this case, the appellant continues, the trial judge erred in deciding that it
    was not in the interests of justice to permit relitigation of the leave to
    cross-examine issue. The trial judge did not have the benefit of reviewing a
    transcript of the prior proceedings to assess the arguments advanced. Nor was
    there a formal ruling that reflected consideration of those arguments. The
    prior proceedings terminated because they were procedurally unfair. Procedural
    fairness includes a trial judges obligation to provide reasons for evidentiary
    rulings. This failure of procedural fairness, according to the appellant,
    warrants departure from the presumptive application of prior rulings in later
    proceedings and requires a new trial.

[37]

The
    respondent says that the trial judge not only acknowledged the presumptive
    effect of s. 653.1, but also was well aware of its rebuttable nature, the
    standard to be applied and the relevant factors to consider. The trial judge
    considered these factors and weighed them appropriately.

[38]

Here,
    the respondent continues, the trial judge considered the cumulative effect of
    the absence of any new argument or evidence; the public interest in timely and
    efficient adjudication of allegations of criminal conduct; and the absence of
    any articulable prejudice to the appellant. In combination, these factors favoured
    adherence to the presumptive rule and defeated the appellants efforts to
    dislodge it.

[39]

The
    respondent adds that the mistrial ruling had nothing to do with the decision on
    the issue of leave to cross-examine the ITO affiant. The mistrial was grounded
    on the premature determination of an issue that counsel had not yet argued.

The Governing Principles

[40]

To
    determine this ground of appeal requires the application of principles that
    govern the obligations of trial judges to provide reasons for evidentiary
    rulings and those that inform the interpretation of s. 653.1 of the
Criminal
    Code
.

[41]

First,
    the obligation to provide reasons.

[42]

It
    is the trial judge, and only the trial judge, upon whom we settle the
    obligation to provide adequate reasons for rulings on evidentiary and
    procedural issues. This obligation is not dependent upon a request from counsel
    for reasons:
R. v. Czibulka
, 2011 ONCA 82, 267 C.C.C. (3d) 276, at para.
    38.

[43]

Among
    the purposes served by the requirement for reasons are to explain the judges
    disposition of the issue and to facilitate appellate review of the findings
    made at trial. The content of the duty to provide reasons is linked to their
    purpose. And the purpose varies with the context:
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788, at para. 24;
R. v. Sheppard
, 2002 SCC 26,
    [2002] 1 S.C.R. 869, at para. 24.

[44]

Appellate
    courts adopt a functional approach to their review of the sufficiency of
    reasons. Our inquiry into sufficiency is not some abstract exercise, rather is
    directed at whether the reasons respond to the live issues raised, with due
    regard to the evidence adduced and the positions advanced by counsel on the
    issues:
Dinardo
, at para. 25. Appeals grounded on claims of
    insufficient reasons will fail unless the reasons are so deficient that they
    foreclose meaningful appellate review:
Sheppard
, at para. 25.

[45]

Reasons
    are not insufficient where the basis for the judges conclusion is apparent
    from the record, even if it is not articulated in a formal, self-contained
    decision. Where the judges reasons are deficient, it is our task to examine
    the record and to determine whether the reasons for the decision are, in fact,
    patent on that record:
Dinardo
, at para. 32;
Sheppard
, at
    para. 46;
R. v. Walker
, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20.

[46]

The
    absence or inadequacy of reasons is not a free-standing ground of appeal. Our
    approach to claims of absent or inadequate reasons is contextual. We require an
    appellant to show not only a deficiency in the reasons, but also that this
    deficiency has caused prejudice to the exercise of his or her legal right to an
    appeal in a criminal case. Provided the reasons are sufficient to serve the
    purpose for which the duty is imposed, are reasonably intelligible to the
    parties and provide the basis for meaningful appellate review of the
    correctness of the decision, they fulfil the judges duty:
R. v. Braich
,
    2002 SCC 27, [2002] 1 S.C.R. 903, at paras. 31 and 38.

[47]

The
    trial judge invoked s. 653.1 of the
Criminal Code
to bind the parties by
    the prior ruling refusing the appellant leave to cross-examine the ITO affiant.

[48]

Section
    653.1 of the
Criminal Code
came into effect on August 15, 2011. It
    provides:

In the case of a mistrial, unless the court is satisfied that
    it would not be in the interests of justice, rulings relating to the disclosure
    or admissibility of evidence or the
Canadian Charter of Rights and Freedoms
that were made during the trial are binding on the parties in any new trial if
    the rulings are made  or could have been made  before the stage at which the
    evidence on the merits is presented.

The section appears in Part XX
Procedure in Jury
    Trials and General Provisions
, but it is incorporated by reference in s.
    572 to non-jury trials to the extent that it is not inconsistent with Part XIX

Indictable Offences

Trial Without Jury
.

[49]

Section
    653.1 was part of the
Fair and Efficient Criminal Trials Act
, S.C.
    2011, c.16. It represents a parliamentary determination to limit or minimize
    the consequences of a mistrial on court resources by restricting relitigation
    of certain issues determined in the prior proceedings.

[50]

The
    section focuses on rulings relating to defined subject-matter which were made,
    or could have been made, before evidence on the merits was adduced in the prior
    proceedings. Although s. 653.1 does not use the language associated with
    presumptions, its effect is similar. Apart from cases in which it would not be
    in the interests of justice to do so, rulings made on any of the defined
    subjects bind the parties on the subsequent trial.

[51]

To
    engage the presumptive effect of s. 653.1, the prior ruling must relate to:

i.

disclosure;

ii.

the admissibility of evidence; or

iii.

the
Charter
.

Further, the ruling must be one that was made, or could
    have been made, before the introduction of evidence on the merits at the
    previous trial.

[52]

To
    rebut the presumptive incorporation of prior rulings in subsequent proceedings,
    a party must demonstrate that it would not be in the interests of justice
    that the prior rulings bind the parties in the later trial. In accordance with
    general principle, the standard of persuasion imposed on the party opposed to
    the incorporation of the prior rulings is on a balance of probabilities.

[53]

The
    phrase the interests of justice is not defined in or for the purposes of s.
    653.1. Nor does the section list or otherwise describe any or all of the
    factors relevant to its application. That said, the phrase makes frequent
    appearances throughout the
Criminal Code
. It takes its meaning from
    the context in which it appears and is characteristic of the existence of a
    judicial discretion to be exercised on a case-by-case basis. The interests of
    justice take into account not only the specific interests of the parties, but
    also broad-based societal concerns:
R. v. Bernardo
(1997), 121 C.C.C.
    (3d) 123 (Ont. C.A.), at para. 16.

[54]

A
    canvass of precedent interpreting the inscrutable phrase interests of justice,
    as it appears elsewhere in the
Criminal Code
or common law, as for
    example in ss. 591(3), (4.1) and (4.2) reveals that to determine where the
    interests of justice lie in any case requires a consideration of the cumulative
    force of all relevant circumstances. No single circumstance or factor is
    dispositive. Nor is the phrase equivalent to the interests of the accused or
    the interests of the Crown. Otherwise, Parliament would have said so. Although
    the interests of the parties are important factors, so too are the interests of
    the public, including its interests in timely and efficient criminal trials,
    the effective use of limited court resources, finality and the integrity of the
    criminal trial process:
R. v. Zvolensky
, 2017 ONCA 273, 135 O.R. (3d)
    401, at paras. 250-251. See also,
R. v. Cody
, 2017 SCC 31, 349 C.C.C.
    (3d) 488, at paras. 37-38; and
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353, at paras. 79 and 82.

[55]

In
    the absence of statutory guidance on the meaning to be assigned to the
    interests of justice in s. 653.1 or of an exhaustive or illustrative list of
    relevant considerations, relevant factors might include, but not be limited to:

i.

whether any new evidence will be tendered on the proposed rehearing;

ii.

whether any new arguments will be advanced on the proposed rehearing and
    the apparent merit, if any, of those arguments;

iii.

the interests of the parties, including any articulable prejudice
    fostered or perpetuated by the inability to relitigate any issue previously
    decided;

iv.

the public interest in the timely and efficient conduct of criminal
    trial proceedings and avoidance of unnecessary and duplicative proceedings;

v.

any changes in the legal principles governing the ruling on which
    relitigation is proposed;

vi.

the nature of the evidentiary record on the basis of which the prior
    ruling was made, as for example,
viva voce
testimony; agreed statement
    of facts; transcripts of testimony given elsewhere and any differences in the
    record proposed for relitigation;

vii.

the nature of the issue(s) involved in the prior ruling and proposed relitigation;

viii.

the possibility of inconsistent rulings; and

ix.

any other circumstances relating to the balance of the subsequent trial
    proceedings that may have an impact on the continued applicability of the prior
    rulings.

See, for example,
R. v. N.J.S.
, 2013 BCSC
    2512, at para. 19.

The Principles Applied

[56]

As
    we will explain, we did not give effect to this ground of appeal. We were
    satisfied that the trial judge properly applied the presumptive rule in s.
    653.1 and did not err in holding that it was not in the interests of justice to
    permit relitigation of the motion for leave to cross-examine the ITO affiant in
    the subsequent proceedings.

[57]

We
    begin from a stance of deference which is the trial judges due on account of
    the discretionary nature of the decision that it was not in the interests of
    justice to permit relitigation of the prior ruling. We are unable to identify
    any error in law or in principle; any failure to consider a relevant factor or
    any consideration of an irrelevant factor in the trial judges decision. Nor
    can we say that his decision under s. 653.1 is plainly unreasonable.

[58]

Second,
    we are not persuaded that the trial judge erred by failing to direct
    relitigation of the motion for leave to cross-examine the ITO affiant on the
    ground that the prior ruling was cumbered by insufficient reasons. While the
    reasons provided at the end of submissions are conclusory and, standing alone,
    evasive of appellate review, it is plain from the record of the exchanges
    between the trial judge and counsel why the motion for leave to cross-examine
    failed. Thus the insufficiency of the reasons of the judge presiding in the
    earlier proceedings afford no ground for deviation from the general rule in s.
    653.1.

[59]

Third,
    neither the evidentiary predicate upon which the proposed relitigation was to
    be grounded, nor the argument to be advanced differed from that rejected by the
    judge at the previous trial. This is relitigation, pure and simple in the hope
    of achieving a different result, the very consequence Parliament sought to
    avoid when it enacted s. 653.1.

[60]

Fourth,
    the referential incorporation of the prior ruling accords proper weight to the
    public interest in the effective and efficient use of limited court resources.
    To permit relitigation of the same issue, on the same grounds, on the same
    evidence in the hope of achieving a different result is to invest in forum
    shopping and turn the principles upon which s. 653.1 is founded on their head.

[61]

Finally,
    to refuse to permit relitigation does not cause the appellant any prejudice. Incorporation
    of the prior ruling leaves it open to the appellant to argue that the reasons
    were insufficient to permit meaningful appellate review, as well as to submit
    that the search was constitutionally flawed and the evidence obtained ought to
    be excluded.

[62]

In
    the end, we rejected this ground of appeal.

Ground #2: Error in Failure to Grant Leave to Cross-Examine

[63]

The
    second ground of appeal is related to the first in that it challenges the
    correctness of the decision incorporated by the application of s. 653.1  the
    refusal of leave to cross-examine the ITO affiant.

[64]

In
    earlier paragraphs we briefly canvassed the reasons of Westman J. for refusing
    leave to cross-examine the ITO affiant. We see no need to repeat that
    discussion here, rather begin with a brief recapture of the arguments advanced
    in this court on the correctness of that decision.

The Arguments on Appeal

[65]

The
    appellant begins with a reminder that the test to be applied to determine
    whether leave should be granted to permit cross-examination of an ITO affiant
    is not onerous. Leave should be granted where the proposed cross-examination
    will elicit testimony tending to discredit any condition precedent to the
    issuance of the warrant, or demonstrate the affiants intention to mislead the
    authorizing justice.

[66]

The
    appellant acknowledges that decisions about leave to cross-examine involve the
    exercise of judicial discretion. It follows, the appellant concedes, that we
    owe deference to the decision refusing leave. But, the appellant continues,
    deference gives way when the reviewing judge applies the wrong test,
    misapprehends relevant evidence or reaches a conclusion that is plainly
    unreasonable. And that is this case.

[67]

In
    this case, the appellant says, Westman J. erred in conflating the test for
    review under
R. v. Garofoli
, [1990] 2 S.C.R. 1421, with that
    applicable to motions for leave to cross-examine the ITO affiant. While the
    areas proposed for a cross-examination might not have achieved ultimate success
    in having the search declared unconstitutional, they were nonetheless relevant
    to the reasonableness of the affiants belief and his duty to make full, fair
    and frank disclosure of all material facts in the ITO.

[68]

The
    appellant contends that the ITO contains unsupported opinions of the affiant
    and refers to confirmatory information from four additional CIs whose
    information was not itself confirmed, nor was the reliability of the CIs
    established. The ITO reflects a deliberate effort on the part of the affiant to
    obfuscate, the antithesis of the requirement of full, fair and frank disclosure
    of all material facts. Leave should have been granted to permit exploration of
    these issues in cross-examination. This error requires a new trial.

[69]

Like
    the appellant, the respondent begins with a reminder about the standard to be
    met when an accused seeks leave to cross-examine an ITO affiant. But the
    respondent emphasizes the necessity for a nexus between the proposed cross-examination
    and the conditions precedent to the issuance of the relevant search authority.

[70]

In
    this case, the respondent continues, trial counsel nowhere pointed to any issue
    on which leave to cross-examine was being sought that would tend to discredit
    any precondition to be met for the issuance of a s. 11(1)
CDSA
warrant. At trial, the appellants essential complaint was about the affiants
    opinions, inferences and conclusions drawn from various observations made by
    investigators or others. Complaints of this nature may be the subject of
    argument on a motion to review the issuance of a search authority, but are not
    fodder for cross-examination of the affiant.

[71]

The
    respondent circles back to the standard that must be met before leave to
    cross-examine an ITO affiant may be granted. An applicant must show that the
    proposed cross-examination is reasonably likely to assist in determining
    whether the requisite grounds existed to issue the warrant. Here, the judge
    applied the proper test, did not misapprehend any material evidence and
    reasonably concluded otherwise. His decision is entitled to deference. Nothing
    more need be said.

The Governing Principles

[72]

The
    principles that govern motions for leave to cross-examine an ITO affiant have
    their genesis in the reasons or Sopinka J. on behalf of the majority of the Supreme
    Court of Canada in
Garofoli
. Their constitutional integrity was
    affirmed in
R. v. Pires
;
R. v. Lising
, 2005 SCC 66, [2005] 3
    S.C.R. 343.

[73]

It
    is well established that an accused against whom evidence of the results of an
    authorized search or seizure are tendered for admission in a criminal trial has
    no unqualified right to cross-examine the author of the material on the basis
    of which the search or seizure authority was granted. Leave is required:
Garofoli
,
    at p. 1465.

[74]

Whether
    leave should be granted to cross-examine an ITO affiant is left to the
    reviewing judge. To obtain leave, an applicant must show that the proposed
    cross-examination will elicit testimony tending to discredit the existence of
    one (or more) of the preconditions to the authorizing authority:
Garofoli
,
    at p. 1465.

[75]

In
Garofoli
, the majority concluded that the trial judge should have
    permitted cross-examination of the affiant. This was so because of the degree
    of reliance police had placed on the informant. The cross-examination could
    discredit the information provided by the informant. In turn, this could raise an
    inference that the police knew or ought to have known that the informant lied,
    thus compromise the police belief in the imminent commission of an offence:
Garofoli
,
    at p. 1466.

[76]

The
    leave requirement imposed by
Garofoli
is neither more nor less than a
    means of weeding out unnecessary proceedings on the basis that they are
    unlikely to assist in the determination of relevant issues. Generally, the
Garofoli
test or standard for leave will allow just a narrow window for cross-examination.
    This is so because there is a similarly confined basis upon which the enabling
    authority can be set aside:
Pires
;
Lising
, at para. 40.
    Recall that the task of the reviewing judge is to determine whether, based on
    the material before the authorizing judge as amplified on the review, the
    authorizing judge
could
have granted the search or seizure authority:
Garofoli
,
    at p. 1452.

[77]

The
    requirement of a nexus between the proposed cross-examination and
Garofoli
standard of review means that if the proposed cross-examination is unlikely to
    assist the reviewing judge in deciding whether there is a basis upon which the
    search authority could be granted, leave to cross-examine should be refused:
Pires
;
Lising
, at para. 40.

[78]

Sometimes,
    the proposed cross-examination may be focused on the credibility of an
    informant whose information has been relied upon by the affiant. A proposed
    cross-examination directed to show only that some of the information relied
    upon by the affiant is false is unlikely to warrant leave unless it can also
    support an inference that the affiant knew or ought to have known that it was
    false:
Pires
;
Lising
, at para. 41.

[79]

The
Garofoli
threshold for leave to cross-examine requires that an
    applicant show a reasonable likelihood that cross-examination of the affiant
    will elicit testimony of value to the issue framed for the reviewing judge
    whether there is a basis upon which the authorizing judge or justice could have
    granted the order:
Pires
;
Lising
, at paras. 3 and 40. The
    applicant need not show that the proposed cross-examination
will
be
    successful in discrediting the conditions precedent for the authorization, only
    that there is a reasonable likelihood that the proposed cross-examination will
    assist the reviewing judge to determine a material issue:
Pires
;
Lising
,
    at para. 40.

[80]

On
    the motion for leave to cross-examine the ITO affiant, the focus of the inquiry
    is on the reasonableness and honesty of the affiants belief about the
    existence of the requisite grounds, and not on the ultimate accuracy of the
    information the affiant relies upon:
R. v. Green
, 2015 ONCA 579, 22
    C.R. (7th) 60, at para. 34.

[81]

A
    final point about motions for leave to cross-examine an ITO affiant has to do
    with the scope of appellate review of decisions on the issue. The decision to
    allow or refuse leave to cross-examine an ITO affiant involves the exercise of
    judicial discretion. Absent an error in principle, a material misapprehension
    of any evidence or an unreasonable decision, an appellate court will defer to
    the trial judge:
Garofoli
, at p. 1465;
R. v. Shivrattan
, 2017
    ONCA 23, 35 C.R. (7th) 143, at para. 55.

[82]

The
    search warrants at issue here were authorized by s. 11(1)
CDSA
. The
    discretion to issue a search warrant under that section becomes engaged when a
    justice is satisfied by an information on oath that there are reasonable
    grounds to believe that a controlled substance or precursor in respect of which
    the
CDSA
has been contravened, offence-related property, or anything
    that will afford evidence in support of a
CDSA
offence is in the place
    to be searched.

The Principles Applied

[83]

For
    several reasons, we did not give effect to this ground of appeal.

[84]

First,
    deference. Decisions on whether to grant leave to cross-examine an ITO affiant
    involve the exercise of judicial discretion. An applicant has no as-of-right
    entitlement to cross-examine the affiant. Absent an error in principle, a
    material misapprehension of any evidence, or an unreasonable finding, we are
    required to defer to the decision of the trial judge. The appellants quarrel
    is with the result, not with the principles applied or the evidence considered.
    We cannot say that the conclusion to refuse leave to cross-examine was
    unreasonable.

[85]

Second,
    to obtain leave, the appellant was required to show that the proposed
    cross-examination was likely to assist in the determination of the single
    question to be decided on the
Garofoli
review  whether there is a
    basis upon which the authorizing justice could issue the warrant.
    Cross-examination will only tend to discredit the existence of a precondition to
    the issuance of the warrant if it can show that the affiant knew or ought to
    have known that the information contained in the ITO was false. There was no
    evidence before the trial judge to suggest this was the case. The appellants
    quarrel was with the inferences the affiant drew from the primary facts about
    which there was no dispute. Complaints about an affiants inferences, like
    claims of omissions, inconsistencies or conclusory or inaccurate statements
    afford no basis for cross-examination.

[86]

Third,
    to issue a s. 11(1)
CDSA
warrant, the justice had to be satisfied that
    there were reasonable grounds to believe that there was in each place to be
    searched:

i.

a controlled substance or precursor in respect of which the
CDSA
had been contravened;

ii.

anything in which a controlled substance or precursor was contained or
    concealed;

iii.

offence-related property; or

iv.

anything that would afford evidence of a
CDSA
offence.

To warrant leave, the proposed cross-examination had to
    tend to discredit one of these preconditions. The proposed subjects revealed no
    tendency to do so.

Ground #3: The Unreasonable Search

[87]

The
    final ground of appeal against conviction focuses on the trial judges
    rejection of the appellants claim that the searches authorized by the s.11(1)
CDSA
warrants violated s. 8 of the
Charter.
For our purposes it is enough
    to briefly review the decision of the trial judge and the arguments advanced on
    appeal, before turning to the controlling authorities and applying them to this
    case.

The Ruling of the Trial Judge

[88]

The
    argument on this issue at trial proceeded without reference to what had taken
    place in the prior proceedings ending in a mistrial.

[89]

The
    trial judge began his reasons by identifying the several bases upon which the
    appellant claimed the warrants could not have been issued. The allegations were
    that the ITO:

i.

failed to establish the necessary reasonable grounds;

ii.

contained colourable use of innocuous observations;

iii.

included unsupported conclusory statements; and

iv.

failed to contain any information that corroborated essential elements
    of information received from the principal CI.

[90]

In
    his determination of what constituted the record for review purposes, the trial
    judge redacted several portions of the ITO:

i.

the reference to 22 Cecile Drive as a safe house;

ii.

the reference to four additional CIs because their reliability could not
    be determined;

iii.

the reference to a change of licence plates on the BMW as a technique to
    avoid detection; and

iv.

the characterization of a brief meeting observed by surveillance
    officers as a hand-to-hand transaction.

[91]

The
    trial judge set aside the redacted portions of the ITO when he measured the
    cumulative effect of the evidence against the
Garofoli
standard. He
    examined the information provided by the CI, which included current direct
    observations of drug transactions in the appellants residence, through the
    lens provided by
R. v. Debot
, [1989] 2 S.C.R. 1140. In the end, the
    judge was satisfied that there remained in the ITO sufficient reliable evidence
    that might reasonably be believed on the basis of which the warrants could have
    been issued.

The Arguments on Appeal

[92]

The
    appellant accepts that the trial judge recited the proper standard of review
    applicable to the issue before him, but says that the judge erred in its
    application. In cases such as this, the appellant continues, which involve
    significant misleading information being submitted to the issuing justice in
    the ITO, the reviewing judge must take this into account in applying the
Garofoli
standard and errs when, as here, he fails to do so.

[93]

The
    appellant also contends that the trial judge erred in considering not only the
    contents of Appendix D to the ITO, but also the contents of Appendix C.
    Appendix D bears the heading Confidential Informer Information, while
    Appendix C is a summary of the police information. Even if the contents of
    Appendix C could be relied upon, it is tainted by information from four other
    CIs of unascertainable reliability, and thus is valueless in the
Garofoli
analysis.

[94]

The
    respondent begins with a reminder that decisions on a
Garofoli
review
    involve the exercise of judicial discretion and thus are subject to deference
    on appeal, absent an error of law or principle, misapprehension or failure to
    consider relevant evidence or a decision which is plainly unreasonable. None of
    these exceptions that would cast deference aside have been demonstrated here.

[95]

The
    respondent says that the reviewing judge, as he was required to do, considered
    the ITO as a whole after excising the affiants opinions and conclusions and
    putting aside information provided by four CIs of unascertainable reliability.
    What remained was current, detailed, firsthand information that the appellant
    was actively dealing drugs from his home and vehicle. Police surveillance and
    records confirmed his residence and use of the vehicle. Police surveillance
    also confirmed a meeting suggestive of drug dealing. The CI had no financial
    incentive to provide false information. This was sufficient to satisfy the
Garofoli
standard.

The Governing Principles

[96]

The
    review is not a
de novo
hearing of the
ex parte
application.
    The parties occupy common ground about the standard to be applied on warrant
    review. The scope of review is narrow, proceeding from a presumption that the
    warrant is valid.

[97]

The
    reviewing judge does not substitute, and should not be invited to substitute,
    his view for that of the issuing judicial officers:
Garofoli
, at p.
    1452;
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
    Warrant review requires a contextual analysis of the entirety of the ITO,
    leaving aside redacted portions and including any amplification. A narrow focus
    on a portion of the ITO is inconsistent with the legal requirement that the
    issuing justice act judicially, which would include diligently and independently
    reviewing the entire ITO and considering its contents:
R. v. Campbell
,
    2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 23. Indeed, such a narrow focus
    would seem incompatible with the standard of review set in
Garofoli
and affirmed in
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992.

[98]

Without
    more, inaccuracies in an ITO are not a sufficient basis on which to ground a
    finding of bad faith, or an intent to mislead, much less to provide a basis on
    which to set aside a warrant:
Araujo
, at para. 54.

The Principles Applied

[99]

We
    did not give effect to this ground of appeal. We have not been persuaded that
    there is any basis upon which to interfere with the discretionary decision of
    the trial judge, who stated and applied the proper standard of review to the
    whole of the ITO as redacted. The reasons reveal no misapprehension of
    evidence, consideration of irrelevant evidence or failure to consider material
    evidence. The decision is not plainly unreasonable.

[100]

The appellants
    principal complaints are with the inclusion of what he claims are inaccurate
    inferences and conclusory statements. The trial judge redacted these parts of
    the ITO, setting them aside in his evaluation of its adequacy to sustain
    issuance of the warrant. In a similar way, the trial judge excluded from
    consideration information provided by CIs whose reliability was
    unascertainable.

[101]

Nor are we
    persuaded that the trial judge erred in considering the contents of both
    Appendix C and Appendix D in reaching his conclusion. The narrow focus
    advanced at trial and repeated on appeal is inconsistent with the duty imposed
    on the issuing justice at first instance, to diligently and independently
    review the ITO as a whole and consider the cumulative force of its contents in
    deciding whether to exercise his discretion to issue the warrant. Nor is it the
    entitlement of the reviewing judge to engage in a piecemeal approach to the
    evidence in applying the standard of review first articulated in
Garofoli
and confirmed in
Araujo
.

[102]

Since we are
    satisfied that the searches did not infringe s. 8 of the
Charter
, we
    do not reach the issue of whether evidence of the results of those searches
    should have been excluded under s. 24(2) of the
Charter
.

[103]

For these
    reasons, we dismissed the appeal from conviction.

the appeal from sentence

[104]

The appellant
    also appeals against the sentence imposed upon him. The trial judge ordered
    that the appellant serve a sentence of five years in a penitentiary for the
    offences of which he was convicted. This resulted in a net sentence of
    imprisonment of 42 months when credit was given for pre-disposition custody and
    stringent terms of release.

[105]

To explain our
    conclusion, we begin with brief references to the circumstances of the offence
    and of the appellant which are relevant for sentencing purposes, then follow
    with a canvass of the positions the parties advanced at trial and in this court,
    and a brief reference to the principles which inform our decision, concluding
    with our application of those principles to this case.

The Circumstances of the Offences

[106]

The appellant
    was convicted of three counts of possession of controlled substances for the
    purpose of trafficking and single counts each of possession of the proceeds of
    crime and possession of a prohibited device.

[107]

Police arrested
    the appellant in his motor vehicle. In the vehicle, the officers found more
    than one pound of marijuana in a vacuum sealed package, together with more than
    $4400 in cash and two BlackBerry cellular devices. A search of his home yielded
    several ounces of various controlled substances  cocaine, crack cocaine, MDMA
    and marijuana  as well as an empty handgun holster, a high capacity rifle
    magazine, 300 rounds of ammunition, several digital scales, mixing agents, a
    marijuana grinder, and nearly $8000. These items were found in different parts
    in the home, including the kitchen, various cupboards and closets, the master
    bedroom and a childs bedroom.

[108]

Police analyzed
    the contents of the appellants BlackBerry. From a review of about three months
    of BlackBerry Messenger conversations involving the appellant, police confirmed
    his discussions with others about the sale of Oxys (Oxycodone), MDMA, marijuana
    and cocaine, including the alteration of cocaine prior to sale. The appellant
    also sent messages showing him holding drugs and handguns.

[109]

From the things
    seized and subsequent analysis of them, the inference is irresistible that the
    appellant was conducting an ongoing commercial drug enterprise from this home.
    The business involved several different controlled substances, as well as
    access to firearms and ammunition.

The Circumstances of the Offender

[110]

When sentenced,
    the appellant was 26 years old and the father of three children, including one
    with his then common law wife and (former) co-accused. He claims a positive
    relationship with all the children. He has three prior unrelated convictions,
    including a failure to comply with a probation order. Prior to the imposition
    of the sentence under appeal he had never been sentenced to a term of
    imprisonment.

[111]

After his release
    from custody, the appellant obtained his certificate as a Heavy Equipment Truck
    and Coach Technician and began his apprenticeship in that field. Although the
    appellant acknowledged prior alcohol abuse, he no longer drinks to excess.
    Apart from occasional marijuana use, the appellant denied any drug addictions
    or prior treatment for addiction.

Pre-Disposition Custody

[112]

Prior to his
    release, the appellant was detained in custody for 276 days. The trial judge
    awarded credit of 414 days (276 x 1.5) for pre-disposition custody and a total
    credit of 18 months as a result of the combination of pre-disposition custody
    and onerous terms of release. With this deduction from a sentence of five years,
    the trial judge imposed a net sentence of 42 months.

The Sentencing Submissions at Trial

[113]

At trial, the
    Crown (not Mr. Walsh) sought a sentence of imprisonment of five years, less
    credit for time spent in pre-disposition custody. Trial counsel for the
    appellant (not Ms.
Vandebeek
) contended
    for a suspended sentence and a lengthy period of probation.

The Reasons for Sentence

[114]

Shortly after
    counsel concluded their sentencing submissions, the trial judge gave oral
    reasons for sentence.

[115]

The trial judge
    rejected the defence request for a non-custodial sentence. He viewed
    denunciation and deterrence as the predominant principles of sentencing to be
    applied to commercial traffickers whose participation was motivated by the
    prospect of financial gain. The appellant was not an addict-trafficker, rather
    a person who made a conscious decision to traffic in significant quantities of
    several drugs for substantial financial gain.

[116]

The trial judge
    questioned how much credit should be due the appellant for his rehabilitative
    steps. After all, he observed, those steps were of recent onset following
    apprehension and pre-trial detention, and well after the appellant had made the
    decision to engage in commercial trafficking. The trial judge said:

I certainly think that Mr. Victoria is to be credited for the
    addition he has made to his education, for maintaining employment, which as I
    have already indicated, I think was available to him earlier, and for
    maintaining contact with his three children. He is, as well, someone that his
    family support, but even with respect to the issue of the children, the Crown
    makes a valid point. This household in which Mr. Victoria was residing had
    turned itself into a drug business. That is apparent looking at the photographs
    filed as an exhibit. Bits of this business were scattered throughout the home.
    Scattered throughout the home as well were items relating to children, and in
    fact, as I look at the photographs, I see a childs pink, purple and blue
    knapsack full of cash. I see childrens toys scattered around. I see drugs on
    the counter, bundles of money, bags of drugs. So, yes, Mr. Victoria is to be
    given credit for maintaining contact with his children, but those are the same
    children, at least two of them, he was prepared to place in jeopardy, in
    significant jeopardy, given what I think all courts can take note of, and that
    is the propensity for violence when significant amounts of drugs are involved.

Mr. Victoria is also to be given credit for the supportive
    nature of the letters that have been filed on his behalf, but they do not alter
    the offence itself, and as suggested today, sentences need to be fit and
    proportionate, and in this case, in my view, anything other than additional
    jail would not be fit and proportionate.

The Arguments on Appeal

[117]

In this court,
    the appellant says that the trial judge erred in principle in minimizing and thus
    not giving proper effect to the appellants rehabilitative efforts when
    determining the sentence he imposed. This error was material to the sentencing
    decision and had a direct impact on the sentence imposed, a disposition that
    was much harsher than a proper application of sentencing principles would
    warrant.

[118]

The appellant
    contends that while out of custody prior to trial, he attended college,
    obtained a certificate as a Heavy Equipment Truck and Coach Technician and
    worked towards completion of his apprenticeship by taking full-time employment.
    He also enjoyed a positive relationship with his three children. Although not a
    first offender, his prior convictions were unrelated and did not attract a
    custodial sentence. At 26 years of age, he was a young offender whose first
    prison sentence should have been shorter in light of his rehabilitative steps
    and prospects.

[119]

The trial
    judges error, the appellant continues, was that he minimized the appellants
    rehabilitative efforts as an important factor in determining a fit sentence.
    Rather than according the appellants rehabilitative efforts and prospects
    significant weight in the sentencing decision, the trial judge criticized him
    for failing to begin his rehabilitative efforts earlier and to express remorse
    for his conduct. A failure to express remorse (especially when a conviction is
    under appeal) is not an aggravating factor. And rehabilitative efforts and
    potential are of abiding importance when determining the length of a first
    custodial sentence for a youthful offender.

[120]

The respondent
    resists any suggestion of an error in principle, much less one that had an
    impact on the sentence imposed. The sentence imposed was well within the range
    of sentence appropriate for commercial drug trafficking at the level revealed
    here. Deference is due to the trial judges decision. The appeal should fail.

[121]

According to the
    respondent, the appropriate range of sentence on the cocaine count on its own
    is a penitentiary sentence of three to five and one-half years, with sentences
    in the upper bracket of that range  five to five and one-half years  not uncommon.
    The drugs and proceeds involved here were of significant quantities. This was
    an ongoing commercial enterprise involving a wide variety of drugs. And there
    is the added feature of ammunition and a high capacity magazine raising the
    prospect of that toxic mixture of guns and drugs and all that goes with it.

[122]

The respondent
    reminds us about the wide latitude accorded to sentencing judges in their
    case-specific determination of a fit sentence. A mere disagreement with the
    weight the trial judge assigned the sentencing objective of rehabilitation, or
    with where within the applicable sentencing range the trial judge located the
    sentence, does not warrant appellate intervention unless the sentence imposed
    is demonstrably unfit. Simply put, that is not this case.

The Governing Principles

[123]

No elaborate
    recital of sentencing principles is necessary to determine whether the sentence
    imposed warrants our intervention. However, brief reference to the applicable
    standard of review, as well as the relevance of sentencing ranges and the
    weighing of sentencing objectives, principles and mitigating factors is
    appropriate.

[124]

We accord wide
    latitude to sentencing judges in their determination of a fit sentence. After
    all, they have the distinct advantage of having seen and heard any witnesses called
    at trial. This advantage puts them in the best position to determine a just and
    appropriate disposition consistent with the governing principles and mindful of
    the controlling sentencing objectives and relevant aggravating and mitigating
    factors.

[125]

Sentencing
    ranges are primarily guidelines for sentencing judges. They are not hard and
    fast rules. Deviation from sentencing ranges, without more, is not synonymous with
    an error of law or an error in principle. Nor is the imposition of a sentence
    outside the range demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, at paras. 58 and 60. The fact that a sentencing judge deviates
    from a range only merits appellate intervention where an error of law or of
    principle occurs and has an impact on sentence resulting in a sentence that is
    demonstrably unfit:
Lacasse
, at paras. 11 and 43.

[126]

In a similar
    way, a sentencing judges selection of a sentence within an appropriate
    sentencing range is equally discretionary, subject to appellate deference and
    does not, on its own, constitute a reviewable error:
Lacasse
, at para.
    51. We are not entitled to intervene just because we would have located the sentence
    elsewhere in the category, but only if the sentence is demonstrably unfit, that
    is to say, an unreasonable departure from the fundamental principle of
    proportionality:
Lacasse
, at paras. 51 and 53.

The Principles Applied

[127]

At the
    conclusion of argument, we were satisfied that there was no basis upon which we
    could interfere with the sentence imposed at trial.

[128]

The sentence
    imposed  a penitentiary term of five years (less credit for pre-disposition
    custody)  falls within the range of sentence appropriate in cases such as
    this. In this respect, we consider that the circumstances reveal a significant
    ongoing commercial trafficking enterprise motivated by the prospect of
    substantial financial gain. Cocaine. MDMA. Marijuana. Precursors. Packaging and
    other paraphernalia. Significant quantities of cash.

[129]

Among other
    aggravating features, we single out but two for special emphasis. The first has
    to do with the nature of the premises in which the commercial activity
    originated: the appellants residence. Drugs, cash, and related drug
    paraphernalia, some in plain view and others secreted in a premises in which a
    child lived. The second relates to the presence of a holster, a high capacity
    magazine and 300 rounds of ammunition. The toxicity of the drugs-firearms pairing
    is well known.

[130]

As to the
    complaint that the trial judge erred in principle by assigning too little
    weight to the appellants rehabilitative efforts in determining the sentence he
    would impose, we observe that complaints about the weight assigned to mitigating
    factors only warrant appellate intervention if they result in a sentence that
    is demonstrably unfit. The sentence imposed here is not demonstrably unfit. It
    does not reflect any fundamental departure from the principle of
    proportionality, rather gives full effect to it.

[131]

We also observe
    that this is not a case in which the sentencing judge failed to consider the
    appellants rehabilitative steps in mitigation. That he or we might have
    weighed them differently is not synonymous with an error of law or of
    principle, much less an error that permits or warrants our intervention. The
    nature, extent and timing of the appellants rehabilitative efforts were
    relevant considerations for the sentencing judge.

conclusion

[132]

For these
    reasons, we dismissed the appeals from conviction and sentence.

David
    Watt J.A.
David Brown J.A.
B.W. Miller 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 complainant’s 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. Zagrodskyi, 2018 ONCA 34

DATE: 20180117

DOCKET: C62199

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Konstiantyn Zagrodskyi

Appellant

Matthew Gourlay and Reem Zaia, for the appellant

Nancy Dennison, for the respondent

Heard: January 9, 2018

On appeal from the
    conviction entered on January 15, 2016 and the sentence imposed on May 4, 2016 by
    Justice Paul Currie of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant Konstiantyn Zagrodskyi was charged with domestic abuse of
    his former wife on three separate occasions: August 27, October 28 and October
    31, 2010. After a trial at which the appellant testified and denied that he had
    abused the complainant, the trial judge convicted him on the August 27 and
    October 31 incidents and acquitted him on the October 28 incident.

[2]

On the August 27 incident the trial judge found the appellant guilty of
    assault causing bodily harm and sexual assault. He sentenced him to nine months
    for the assault causing bodily harm conviction and three months concurrent for
    the sexual assault conviction. On the October 31 incident the trial judge
    convicted the appellant of sexual assault and sentenced him to six months
    consecutive to the sentences for the August 27 incident.

[3]

The appellant appeals both his convictions and his sentences. On his
    sentence appeal he seeks leave to introduce fresh evidence showing the
    immigration consequences of his sentence, consequences the trial judge did not
    consider in imposing a global sentence of 15 months.

A.

Conviction appeal

[4]

On his conviction appeal the appellants main submission is that the
    trial judges reasons were inadequate because he failed to explain why the
    appellants denial of abuse was disbelieved. We agree with this submission for
    the October 31 incident but not for the August 27 incident.

[5]

The August 27 incident occurred in the context of the deteriorating
    relationship between the appellant and his former wife. The catalyst for the
    incident was a conversation between the complainant and her mother, which the
    appellant overheard. In the conversation the complainant said that while on
    vacation a young man had made overtures to her and kissed her. Having overheard
    the conversation, the appellant punched a hole in the wall, threw the
    complainants laptop to the ground and ripped off her clothes.

[6]

The complainant testified that the appellant then slapped her numerous
    times with his open hand, and that his abuse of her continued throughout the
    night and into the next morning. The appellant admitted that he slapped the
    complainant a couple of times. He also admitted that he ripped off her clothes
    but claimed that he did so to show how easily she could be raped by other men. He
    denied the balance of her allegations. The appellant also conceded that he was
    upset. But he maintained he was not angry, by which he meant physically
    aggressive.

[7]

The trial judges reasons for conviction are brief but they are
    adequate. He found the complainants evidence about what occurred on August 27
    compelling, and gave brief reasons for his finding. He rejected the
    appellants evidence that he was not angry, and found that the appellants
    version of what occurred on August 27 was not in accord with common sense or
    life experience. He concluded that on all the evidence, including photographs
    of the complainants injuries, taken by her, that the guilt of the appellant
    had been proved beyond a reasonable doubt.

[8]

The appellants main complaint about the inadequacy of the reasons
    focuses on the trial judges rejection of the appellants claim he was not
    angry. In rejecting the appellants claim, the trial judge did not explain the
    distinction the appellant made in his testimony (given through an interpreter)
    between being upset, that is despondent after hearing that his former wife
    may have been unfaithful, and being angry, that is physically aggressive.
    Although it might have been preferable had the trial judge explored this
    distinction, his rejection of the appellants claim he was not angry was
    sufficient. We are satisfied that the appellant knew why his denial of abuse
    was disbelieved. We therefore dismiss the conviction appeal on the August 27
    incident.

[9]

By contrast the trial judges reasons on the October 31 incident are
    inadequate. The parties agree that on October 31 they had sex: the complainant
    gave the appellant a hand job. The underlying issue was whether the sex was
    consensual. The appellant said it was; he was trying to repair his relationship
    with his former wife. She said it was not; she did not want to have sex with
    him and only agreed to do so to calm him down.

[10]

In
    convicting the appellant on this count, the trial judge simply said:

On that count and count two, the
    October 31
st
allegation, I am satisfied on all the evidence, beyond
    a reasonable doubt, that on that occasion Mr. Zagrodskyi did commit a sexual
    assault on O.H., and that he did commit an assault of O.H. in the course of
    that October 31
st
event as well.

[11]

These
    reasons, in substance, amount to no reasons at all. They do not tell the
    parties why the appellants evidence was disbelieved. Nor do they permit this
    court to meaningfully review the basis for the appellants conviction. Thus his
    conviction for sexual assault on October 31 is set aside and a new trial is
    ordered on that count.

B.

The sentence appeal

[12]

The
    trial judge did not consider the immigration consequences of the sentence he
    imposed. In fairness to him, no party asked that he do so.

[13]

Taking
    into account these immigration consequences, we adjust the sentences for the
    August 27 incident as follows:

·

Six months less ten days inclusive of pre-sentence custody for
    the conviction for assault causing bodily harm; and,

·

Three months consecutive instead of concurrent for the sexual
    assault conviction.

[14]

In
    essence we have reduced the sentence for the assault causing bodily harm
    conviction by three months and converted the three months sentence for sexual
    assault from a concurrent sentence to a consecutive sentence.

[15]

We
    think that justice is fairly served by imposing these sentences. Functionally
    they preserve the overall length of sentence imposed by the trial judge for the
    August 27 incident, nine months. These adjusted sentences will permit the
    appellant to appeal his deportation order. As the Supreme Court of Canada and
    our court have said, the risk of deportation is a factor to be taken into
    account in sentencing, and it was not taken into account by the trial judge.

[16]

We
    are mindful that we cannot impose an artificial sentence to circumvent the
    scheme of the
Immigration and Refugee Protection Act
. But in our view
    these sentences do not do so, especially as there is a rational basis for
    imposing consecutive sentences, and we have maintained the trial judges
    overall sentence of 9 months.

[17]

As
    well, we have taken into account that the appellant is a compelling candidate
    for an adjustment of his sentence. The incidents occurred over eight years ago.
    Since then the appellant has established a relationship with another woman to
    whom he is engaged to be married, and with whom he has bought a house. He is
    close to her family. He has a full-time job and the support of his employer.
    And he has had no further troubles with the law.

C.

Conclusion

[18]

The
    conviction for sexual assault on October 31, 2010 is set aside and a new trial
    is ordered on that count. Otherwise the conviction appeal is dismissed.

[19]

Leave
    to appeal sentence is granted, and the sentence appeal is allowed. The
    sentences imposed on count three (assault causing bodily harm on August 27,
    2010) and count four (sexual assault on August 27, 2010) are adjusted as
    follows:

·

Assault causing bodily harm: reduced from nine months to six
    months less 10 days, inclusive of pre-sentence custody.

·

Sexual assault: changed from three months concurrent to three
    months consecutive.

John Laskin J.A.

G.T. Trotter J.A.

Fairburn J.A.