COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mallozzi, 2018 ONCA 312

DATE: 20180327

DOCKET: C63461

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Itolo Mallozzi

Respondent

David Littlefield, for the appellant

Gregory Lafontaine, for the respondent

Heard: March 23, 2018

On appeal from the stay entered on April 26, 2017 by
    Justice Todd Ducharme of the Superior Court of Justice.

REASONS FOR DECISION

[1]

This is a Crown appeal against a stay of proceedings for unreasonable
    delay on a two-count indictment. After taking into account 56 days of defence
    delay, the trial judge found that the net delay was approximately 32 months.
    The trial judge concluded that there had been unreasonable delay under both
R.
    v. Jordan
, 2016 SCC 27,
[2016] 1 S.C.R. 631,

and
R. v. Morin,
[1992]
    1 S.C.R. 771
.

[2]

We find it unnecessary to address all of the errors advanced. There are
    three fundamental ones that require that the stay of proceedings be set aside
    and a new trial ordered. The errors arise from a failure to properly calculate
    defence delay.

[3]

Defence delay is defined in
Jordan
as including periods of time
    when the Crown and the court are ready to proceed, but the defence is not:
Jordan
,
    at para. 64. See also:
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659,
    at para. 55. Although actions that are legitimately taken to respond to the
    charges will fall outside of defence delay, when what prevents the matter from
    proceeding is simply that the defence is not available when the Crown and the
    court are, this constitutes defence delay and will be subtracted from the total
    delay.

[4]

The trial judge failed to consider two periods of time that constitute
    defence delay. He also misapprehended the evidence respecting another period of
    time, leading to an erroneous conclusion that the time did not constitute
    defence delay.

[5]

First, there is an 87-day period of time during which the defence
    delayed the scheduling of the preliminary inquiry. Although the trial judges
    reasons correctly note that earlier dates for the preliminary inquiry were
    provided, there is no analysis as to why the matter was not scheduled on those
    earlier dates. The evidence is clear that Crown counsel was available during
    the earlier dates.

[6]

The respondent maintains that his trial counsel had dates earlier than
    those offered by the court and, therefore, though his counsel was not available
    on the later dates that were offered, he should not be required to absorb this
    time as defence delay. We disagree.
Jordan
is clear that defence delay
    will arise where the Crown and the court are ready to proceed, but the defence
    is not. Read contextually, and having regard to the trial verification form,
    the Crown and the court were ready to proceed. Defence counsel was not. The
    trial judge erred in failing to consider these 87 days as defence delay.

[7]

Second, the Crown maintains that there is an 84-day period of time that
    the trial judge failed to consider. This time is also said to constitute
    defence delay.

[8]

The respondent was originally facing trial with a co-accused who
    ultimately pled guilty. Prior to entering his guilty plea, the co-accused asked
    that the pending preliminary inquiry be adjourned. The Crown opposed the
    adjournment request. The respondent took no position, noting that this was a
    very complex matter with complex disclosure.

[9]

The Crown expressed its concern about moving the matter forward. To this
    end, the Crown opened up its priority in-custody dates to accommodate the
    earliest possible dates to reschedule the preliminary inquiry. The record
    reveals that the earliest dates provided did not coincide with the respondents
    trial counsels schedule. The trial verification form demonstrates that there was
    almost three months between the earliest dates offered and when the
    respondents counsel became available to conduct the rescheduled preliminary
    inquiry.

[10]

The
    respondent maintains that he was ready to proceed on the first preliminary
    inquiry date and, therefore, his co-accuseds request for an adjournment should
    not result in any defence delay to him. Multi-accused cases bring a level of
    complexity with them. All justice participants are required to work together in
    obtaining the earliest dates possible when matters cannot proceed. Although a
    co-accused caused the adjournment of the original preliminary inquiry date,
    something that could trigger an inquiry into exceptional circumstances under
R.
    v. Gopie
, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 136, we need not
    resort to an analysis of this
Jordan
principle here. In the wake of
    the adjournment request, new dates were offered and the Crown and the court
    were ready to proceed. The defence was not. This was defence delay.

[11]

Third,
    we agree that the trial judge misapprehended a piece of evidence that caused
    him to reject the Crowns submission that an additional 3.5 months should be
    considered defence delay.

[12]

The
    record establishes that both the court and Crown were ready to proceed to trial
    on February 6, 2017. During a court appearance on January 25, 2017, trial counsel
    for the respondent acknowledged that it was the
Jordan
anniversary
    date of 30-months. Even so, she was not prepared to accept the February 6
    start date for trial because she still had a witness to discover by way of a
    cross-examination in the Ontario Court of Justice. She was clear that this
    cross-examination was to occur on February 2, 2017. The respondents trial counsel
    also acknowledged that, while she had been provided trial dates in February,
    March and April, she was not available until May 23 for the start of trial.

[13]

The
    trial judge misconstrued the evidence in his s. 11(b) ruling, stating that when
    the trial date was selected, the cross-examination was scheduled to proceed on March
    27, 2017. Although, in the end, the cross-examination occurred on March 27, this
    date resulted from the defence rescheduling the discovery after the trial date
    had been set. When the trial date was selected, the outstanding discovery was still
    scheduled to proceed on February 2, 2017.

[14]

Based
    upon his misunderstanding of when the cross-examination was scheduled to occur,
    the trial judge concluded that the Crowns offer of trial dates before March
    27, 2017 did not constitute meaningful offers because, in his view, they
    pre-dated the discovery yet to be completed. In fact, every trial date offered
    post-dated the completion of the scheduled cross-examination. The Crown and the
    court were ready to proceed on all of those dates. The defence was not.

[15]

Even
    if one accounts for the fact that the defence may not have wanted to proceed
    days after the cross-examination was done, other dates were offered that would
    have allowed the defence ample preparation time following the conclusion of the
    cross-examination originally scheduled for February 2. The only reason the
    trial did not go ahead earlier is because the defence was unavailable. On a generous
    view, this constituted at least a couple of months of defence delay.

[16]

Any
    one of these three errors brings the delay under the
Jordan
ceiling
    and, cumulatively, they bring the delay well below the ceiling. In these
    circumstances, it is unnecessary to address the balance of the arguments
    raised.

[17]

The
    appeal is allowed, the stay of proceedings is lifted and the matter is remitted
    to the Superior Court of Justice for trial.

Robert J. Sharpe
    J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martins, 2018 ONCA 315

DATE: 20180327

DOCKET: C61903

Doherty, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcos Martins

Appellant

Michael Little, for the appellant

Tanit Gilliam, for the respondent

Heard:  March 23, 2018

On appeal from the conviction entered on March 11, 2016
by Justice McWatt of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We would dismiss this appeal. The evidence was capable of supporting the
trial judges finding that exigent circumstances justified the police entry
prior to the execution of the search warrant.

[2]

The trial judge was entitled to accept the officers evidence which, in
our view, demonstrated legitimate concerns about both officer/public safety and
the preservation of evidence.

[3]

The statement in the ITO, as amplified by the officers evidence in
cross-examination to the effect that his prior experience indicated that a Justice
of the Peace would not be available at the time of the day, was enough to
satisfy the requirement that it be impracticable to obtain a warrant by
appearing in person. The telewarrant was lawfully issued.

[4]

The ITO clearly sought a warrant for the entire commercial space. Any
misdescription of the municipal address of that space was, at most, a minor
error which may have led to a technical breach of s. 8. It could not justify
the exclusion of the evidence and the trial judge was correct in so holding.

[5]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McConnell, 2018 ONCA 241

DATE: 20180312

DOCKET: C62758

Pardu, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Todd A. McConnell

Appellant

Robert F. Goddard, for the appellant

Lorna Bolton, for the respondent

Heard and released orally: March 7, 2018

On appeal from the conviction entered on October 17, 2013
    by Justice Hugh McLean of the Superior Court of Justice, sitting a jury.

REASONS FOR DECISION

[1]

The appellant submits that trial judge erred in sentencing him for
    criminal harassment, careless use of a firearm, threatening to cause bodily
    harm and two breaches of weapons prohibition orders resulting in a global
    sentence of two years and six months, which the sentencing judge reduced by 18
    months to reflect 12 months actual pre-sentence custody. The appellant no
    longer challenges the long-term supervision order also imposed by the
    sentencing judge.

[2]

We do not accept that the trial judge erred by failing to give
    additional credit for terms of interim release which placed some strictures on
    the appellant. This was a discretionary call and we are satisfied that the
    sentencing judge gave weight to this factor in assessing the overall length of
    sentence.

[3]

We are not satisfied that the trial judge treated the appellant for
    sentencing purposes as having deliberately shot towards the complainants home.
    Rather, the trial judge found that the appellants careless use of the firearm
    resulted in projectiles hitting the complainants home. In any event, a
    concurrent sentence was imposed for careless use of the firearm and the nuance
    referred to on appeal would have had no impact on the global sentence.

[4]

We are not persuaded that the appellants post-sentence rehabilitative
    efforts are so extraordinary as to warrant interference with the trial judges
    sentencing decision imposing a sentence which was entirely fit.

[5]

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

G. Pardu J.A.

M.L. Benotto

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntyre, 2018 ONCA 210

DATE: 20180301

DOCKET: M48758

Epstein J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Leon McIntyre

Applicant (Appellant)

Breana Vandebeek, for the applicant

Carmen Elmasry, for the respondent

Heard: February 6, 2018

REASONS FOR
    DECISION

[1]

Following a guilty plea, the applicant was convicted of robbery while
    using a restricted firearm, assault causing bodily harm, possession of a loaded
    restricted firearm when not a holder of an authorization or licence, possession
    of a restricted firearm knowing that he is not the holder of a licence,
    pointing a firearm, dangerous driving and possession of a firearm while
    prohibited. On December 2, 2016 the sentencing judge dismissed the applicants
    challenge to the five-year mandatory minimum sentence in s. 344(1)(a) of the
Criminal
    Code

and sentenced him to six years imprisonment, less credit for
    pre-sentence custody.

[2]

The applicant seeks an extension of time to seek leave to appeal his
    sentence and bail pending appeal. The respondent opposes both. The respondents
    position is that the applicant has not adequately accounted for the delay in
    appealing sentence, that there is no merit in the proposed appeal, and that
    detention of the applicant is necessary in the public interest given the
    serious and violent nature of his offences.

[3]

For the reasons that follow, the application for an extension of time to
    appeal is allowed. The application for release pending appeal is also allowed.

BACKGROUND FACTS

[4]

On August 18, 2014, the victim was in his driveway fixing the door of
    his car. His four-year-old son was on the porch, watching. The applicant and another
    youth came onto the driveway. Their purpose was to steal the car. The applicant
    was armed with a loaded handgun. The applicant ordered the victim to hand over
    the car keys. The victim resisted. A struggle ensued during which the applicant
    hit the victim in the head with the gun and cut the victims finger while
    wrestling the keys from his hand.

[5]

As a result of the struggle, the victim briefly lost consciousness. The
    wound to the victims head required 13 staples. The injury to the victims
    finger left him with permanent impairment to the use of the finger. The victim
    was off work for two months. He continues to suffer effects of the assault,
    including pain while working and while engaging in daily physical activities.

[6]

The two perpetrators drove off with the car. The victims wife and
    neighbours arrived on the scene and notified the police. Two officers noticed
    the applicant, an unlicensed driver, driving the stolen car at a high rate of
    speed in a manner dangerous to the public. The applicant was ultimately
    arrested in a high-risk takedown. The applicant was searched. He was found in
    possession of a handgun loaded with a magazine containing nine rounds of 9mm
    Luger ammunition.

[7]

At the time he pleaded guilty, the applicant had been in custody for 744
    days. The Crown sought a global sentence of six years in jail. Counsel for the
    applicant argued that a two to three year sentence was appropriate. A six year
    sentence was imposed, less credit for time served of 3 years and 21 days. When
    the applicant was sentenced in December, 2016 he had 2 years and 11 months left
    to serve.

ANALYSIS

(1)

Should an Extension of Time to File a Notice of Appeal be Granted?

[8]

It appears that on December 8, 2016, six days after he was sentenced but
    before the reasons dismissing his constitutional challenge were released on
    January 16, 2017, the applicant told his parole officer that he had appealed
    his conviction and sentence. However, he had not filed an inmate notice of
    appeal. The applicant contacted counsel at the law firm of Rusonik, OConnor,
    Robbins, Ross, Gorham, Angelini, LLP in February to retain them to complete an
    opinion letter to Legal Aid. Legal Aid provided a certificate authorizing full funding
    for the appeal on July 7, 2017.

[9]

After acknowledging the legal aid certificate on July 28, 2017, the
    lawyer at the Rusonik law firm who was originally involved in the file was
    delayed in moving the matter forward due to other work-related and personal
    commitments. Early in October 2017 that lawyer asked appellate counsel at the
    firm to take the matter over and bring a bail application to ensure that the
    sentence appeal did not become moot. Affidavits were prepared and were signed
    by the applicant and by his proposed sureties. This took some additional time
    given the applicant was incarcerated in New Brunswick. It was not until early
    December 2017, when counsel began to assemble the materials for the bail
    application, that it was realized that no solicitor or inmate appeal had been
    filed. When the applicant was contacted he advised counsel that he believed the
    notice of appeal had been filed by counsel. All this time counsel believed the
    applicant had filed an inmate notice of appeal.

[10]

This
    motion for bail and for an extension of time to appeal was immediately brought.

[11]

The
    three factors to consider in determining whether to grant an extension of time
    to file a notice of appeal are (i) whether the applicant has shown a
bona
    fide
intention to appeal within the appeal period; (ii) whether the
    applicant has accounted for or explained the delay; and (iii) whether there is
    merit to the proposed appeal:
R. v. Stirling
,
2005 CarswellOnt
    10611 (C.A., In Chambers), at para. 7. Justice Feldman put it this way in
Stirling
,
    Above all, the main consideration is whether the applicant has demonstrated
    that justice requires that an extension of time be granted.

[12]

The
    respondent, quite fairly, concedes that the applicant formed an intent to
    appeal within the requisite time.

[13]

However,
    the respondent submits that the applicant is unable to adequately explain the
    delay in filing the notice of appeal.

[14]

Although
    counsel for the applicant, once retained, should have been more diligent in
    checking the Court of Appeal records to ensure that a notice of appeal had been
    filed, I conclude that the delay has been adequately explained and that the
    justice of the case requires an extension of time.

[15]

Finally,
    the respondent contends there is no merit to the proposed appeal. I will deal
    with this argument in considering whether bail pending appeal should be
    granted, below.

(2)

Should Leave to Appeal Sentence be Granted?

[16]

To
    grant the applicant judicial interim release pending his sentence appeal, I
    must first determine whether he should be granted leave to appeal his sentence:
Criminal Code
,

s.
    679(1)(b);
Criminal Appeal Rules
, SI/93-169, r. 31;
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
,
7.2.11

(March 1, 2017).

[17]

The
    respondent challenges the applicants request for leave on the basis that the
    proposed appeal does not raise viable grounds of appeal. However, in the
    circumstances of this case, I am satisfied that leave should be granted.

[18]

The
    applicant advances two main grounds of appeal: (i) that the sentencing judge
    failed to consider relevant mitigating factors in sentencing, including the
    applicants youth and his significant family dysfunction; and (ii) that the
    judge erred in dismissing the applicants challenge to the constitutional
    validity of the five-year minimum sentence contained in s. 344(1)(a) of the
Code
.

[19]

As
    I will describe below, although I have some concern about the merits of the
    pending appeal  and have factored those concerns into my consideration of the
    bail application that follows  I am satisfied that the appeal is not so devoid
    of merit as to fail the low bar required to obtain leave to appeal sentence. It
    is at least arguable that the sentence is unfit: The Honourable Justice Gary
    T. Trotter,
The Law of Bail in Canada
, 3rd ed. (Toronto: Carswell,
    2010)
,
at 10-38.

[20]

Having
    granted leave, the applicant is entitled to have his bail application
    considered on the merits:
Criminal Code
, s. 679(1)(b).

(3)

Should the Applicant be Released Pending his Appeal?

[21]

Having
    granted the applicant leave, I now turn to determining whether he should be
    granted bail pending his sentence appeal:
Criminal Code
, s. 679(1)(b).
    I may only grant bail if I am satisfied that: (1) the applicants appeal has
    sufficient merit that, in the circumstances, it would cause unnecessary
    hardship if he were detained in custody; (2) he will surrender himself into
    custody in accordance with the terms of the order; and (3) his detention is not
    necessary in the public interest:
Criminal Code
, s. 679(4).
The respondent does not contest the second element
    of the test, so I will focus my analysis on (1) and (2).

[22]

The
    respondent disputes whether the applicant has satisfied the first element,
    which calls for a threshold inquiry into the merits of his pending appeal, and
    an assessment of the hardship the applicant would experience if bail were
    denied:
R. v. Hassan
, 2017 ONCA 1008, at para. 18. The respondent also
    asserts that granting bail pending appeal would be contrary to the public
    interest.

[23]

After
    viewing these factors in conjunction, I have concluded this application should
    be allowed.

[24]

As
    I said in
R. v. Hassan
, at para. 19, the threshold assessment of merit
    mandated by s. 679(4)(a) has been described by some courts as a search for
    arguable merit:
R. v. Ewanchuk
, 2000 ABCA 303, 271 A.R. 118
(C.A.), at paras. 5-6;
R. v. Figiel
, 2015 ABCA 19, 588 A.R. 372
(C.A.), at para. 4. The court asks whether the appeal has some hope or
    prospect of success:
Ewanchuk
,
at para. 5. I also expressed
    the view that the standard established in s. 679(4)(a) is more stringent than
    the test for leave to appeal sentence:
The Law of Bail in Canada
, at
    10-38.

[25]

As
    previously indicated, the applicants sentence appeal relies on two alleged
    errors made by the sentencing judge. First, the applicant submits that in
    imposing sentence the sentencing judge erred by failing to properly take into
    account relevant mitigating factors including the applicants youth and his
    significant family dysfunction. Second, the applicant argues that the judge
    erred in dismissing the applicants challenge to the constitutional validity of
    the five-year minimum contained in s. 344(1)(a) of the
Code
.

[26]

With
    respect to the first argument, the applicant was just months past his 18
th
birthday at the time he committed the offences. He is a black youth who has endured
    significant family dysfunction. The applicant submits that these factors,
    particularly the significant details of his societal circumstances, were not
    properly taken into account by the sentencing judge.

[27]

Although
    I accept the respondents argument that looking at the record as a whole,
    including the sentencing judges references to the pre-sentence report and the
    comments it contains about the applicants dysfunctional background, it is
    clear that the sentencing judge was alive to these factors, I cannot say that
    there is no arguable merit to this ground of appeal, particularly in the light
    of this courts comments in
R. v. Borde
(2003), 63 O.R. (3d) 417
    (C.A.), at paras. 2, 30-33
.
While the sentencing judge summarized some
    of those factors in his reasons, he did not identify them as mitigating factors
    or expressly consider them when determining the appropriate sentence for the
    applicant.

[28]

With
    respect to the second argument, the applicant points out that there has been no
    pronouncement on the constitutional validity of s. 344 of the
Code
by
    this court since
R. v. McDonald
, (1998) 40 O.R. (3d) 63 (C.A.), where this
    court upheld the then four year mandatory minimum sentence for the offence of
    armed robbery. Since that decision was released there have been changes in the
    law that may impact this courts assessment of gross disproportionality. First,
    following
R. v. Nur
, 2015 SCC 15, [2015] 1 S.C.R. 773, constitutional
    challenges can be argued on the basis of reasonable hypotheticals involving the
    best offender. This was not available when
McDonald
was decided.  As
    well, the minimum sentence has been increased by one year to five years,
    something that may prompt a reassessment of the minimum sentence.

[29]

The
    Crown correctly points out that the sentencing judge conducted an analysis of
    the constitutionality of s. 344 of the
Code
, including using
    reasonable hypotheticals and considering this courts decision in
McDonald
.
    However, notwithstanding the sentencing judges thorough reasoning, the five
    year minimum sentence in issue has not been the subject of any review by this
    court. There appears to be at least
arguable
merit to the
    constitutional challenge in the circumstances. Further, the inflationary floor from
    the mandatory minimum sentence is arguably relevant to the applicants
    circumstances: without that inflationary floor, an appropriate sentence may be lower
    than the six years given by the sentencing judge:
R. v. Delchev
,
2014
    ONCA 448, 323 O.A.C. 19, at para. 18.

[30]

In
    my view, an assessment of the merits of the appeal indicates that it has some
    hope or prospect of success, and weighs in favour of granting bail.

[31]

I
    am required under s. 679(4)(a) to consider not only the merits of the
    applicants sentence appeal, but also whether denying the applicant bail
    pending appeal would cause him unnecessary hardship. The two factors are
    inter-related: the weaker the merits of a pending appeal, the harder it will be
    for an applicant to show that hardship caused by continued incarceration is
    unnecessary:
Hassan
,
at para. 32. My above observations
    regarding the merits of this particular appeal therefore weigh in favour of a finding
    of unnecessary hardship.

[32]

The applicant can show unnecessary hardship if he is able to demonstrate
    that his appeal is sufficiently meritorious such that, if judicial interim
    release is not granted, he will have spent more time in custody than what is
    subsequently determined to be fit:
The Law of Bail in Canada
, at 10-39.
    Accordingly, I will therefore consider whether, if the applicant is ultimately
    successful on appeal, it is likely that he will have served more time in
    custody than he ought to have spent.

[33]

The
    applicant appears to have been in custody since his sentencing on December 2,
    2016. He seeks to have his sentence varied to a maximum of three years. If he
    were successful on appeal to this extent, he would be eligible for release now.
    That is the case as well if this court were to reduce the sentence to four
    years. Even if his sentence were reduced to five years, there would be a risk
    that he will end up serving more time in custody than he ought to have spent.  Particularly
    in the light of the demands of a constitutional challenge, I am not confident
    the appeal can be disposed of on an expedited basis. Consequently, there is a
    real risk that the applicant will have spent more time than necessary in
    custody if he succeeds, or is even partially successful on appeal. In these
    circumstances, the applicants continued detention would cause unnecessary
    hardship.

[34]

However,
    an applicant cannot obtain bail pending sentence appeal simply by pointing
    to possible hardship, such as the appeal being moot by the time it is heard. Section
    679(4)(a) requires an applicant to establish unnecessary hardship. Whether
    potential hardship suffered by the applicant will be unnecessary must be
    determined with reference to the merits of the pending appeal:
The Law of
    Bail in Canada
, at 10-39;
R. v. Johnston
,
2014 NSCA 78,
    349 N.S.R. (2d) 122, at para. 21;
Hassan
, at para. 32. As Bryson J.A.
    explains in
Johnston
, at para. 21:

It is important to emphasize the connection between
    "sufficient merit" and "unnecessary hardship" in s.
    679(4)(a). Some cases give the impression that simply pointing out the mootness
    of appeal, owing to delay, creates unnecessary hardship which satisfies this
    section.
But there is no unnecessary hardship in serving an appropriate
    sentence.
Only if the appellant raises arguable issues can incarceration
    constitute an unnecessary hardship in such circumstances [Emphasis added].

[35]

I
    agree with this passage. It is consistent with the observation in
Hassan
,
    at para. 32, that the weaker the merits of a pending appeal, the harder it
    will be for an applicant to show that hardship caused by continued
    incarceration is unnecessary. As I outlined above, I view both of the applicants
    proposed grounds of appeal as having arguable merit. Accordingly, there is a
    risk of unnecessary hardship such that the protection of the integrity of the
    appellate process militates towards granting bail:
The Law of Bail in
    Canada
,
at 10-39.

[36]

The
    respondent also argues that, in any event, it is contrary to the public
    interest to grant the applicant bail pending appeal. As the respondent points
    out, when release pending appeal is sought the competing interests are
    enforceability and reviewability:
R. v. Oland
,
2017 SCC 17,
    [2017] 1 S.C.R. 250, at paras. 36-49. The respondent submits that in the
    circumstances of this case, the need for enforceability is paramount to
    maintenance of the publics confidence in the administration of justice. This
    submission is based on the violence that the applicant inflicted  injuries to
    the victim, the involvement of a loaded restricted firearm, and the
    traumatization of a child.

[37]

The
    first and third branches of the s. 679(4) analysis overlap to an extent: the
    merits of the appeal are also relevant to the public interest inquiry under s.
    679(4)(a):
The Law of Bail in Canada
,
at 10-38-10-40. For the
    reasons articulated above, this militates in favour of granting bail. Further, although
    the offence at issue is undeniably serious, the applicant is a first time
    offender who was 18 at the time of sentence and has already served several
    years custody. Accordingly, in my view the public interest favours granting
    bail in the circumstances.

[38]

Here,
    given my conclusion that both grounds of appeal have some merit, that the
    hardship the applicant would suffer qualifies as "unnecessary" due to
    the potential mootness of the appeal, and my related conclusion that the
    applicants continued detention is not necessary in the public interest,  the requirements
    of s. 679(4) have been satisfied.

DISPOSITION

[39]

For these reasons, the application is allowed.
    The applicant is to be released on the terms contained in the draft release
    order filed with me at the time of the hearing of this application.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pitters, 2018 ONCA 234

DATE: 20180309

DOCKET: C62892

Pardu, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Troy Pitters

Appellant

Troy Pitters, acting in person via videoconference

Lorna Bolton, for the respondent

Megan Savard, duty counsel

Heard and released orally: March 7, 2018

On appeal from the sentence imposed on October 24, 2016
    by Justice John R. Sproat of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR
    DECISION

[1]

Mr. Pitters appeals his sentence of 15 years for attempted murder, along
    with 1.5 years consecutive on two counts of failure to comply with probation.

[2]

The background facts are very disturbing. Mr. Pitters repeatedly
    harassed a female that he knew from school. He was ultimately charged and
    convicted with criminal harassment. A few months after that conviction, Mr.
    Pitters appeared at the home of the female and her family. He was armed with
    weapons and homemade bombs. A confrontation occurred between Mr. Pitters and
    members of the family. Mr. Pitters stabbed one of the members of the family
    multiple times inflicting serious injuries.

[3]

The sentencing judge gave considered reasons for the sentences he
    imposed. Given the facts underlying the offence, we are of the view that the
    sentence imposed was an entirely appropriate one. It falls within the range of
    sentences for this type of offence: see
R. v. Stubbs
, 2013 ONCA 514, 300
    C.C.C. (3d) 181, at para. 148.

[4]

Attempted murder is one of the most serious offences under our law. The
    violence in this case was unprovoked and gratuitous. It called for a sentence
    that promoted deterrence and denunciation.

[5]

That said, the Crown accepts that the sentences for the two failure to
    comply convictions ought to have been concurrent, not consecutive one to the
    other. Other than for that acknowledgement, we are of the view that an overall
    sentence of 16 years was appropriate in this case given the conduct involved.
    Given that view, we do not have to address the issue of consecutive versus concurrent
    sentences when considering the failures to comply with the attempted murder.

[6]

The appeal is allowed but only to the extent of making the sentences for
    the failure to comply offences concurrent rather than consecutive, thus
    reducing the overall 16.5 year sentence to one of 16 years before credit is
    given for pre-sentence custody.

G. Pardu J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Plante, 2018 ONCA 251

DATE: 20180315

DOCKET: C64248

Pardu, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Robert Plante

Appellant

Lindsay Daviau, duty counsel for the appellant

Grace Choi, for the respondent

Heard: March 6, 2018

On appeal from the sentence imposed on August 1, 2017 by Regional
    Senior Justice Michelle Fuerst of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant fled from police at high speed. He
    pleaded guilty to one count of flight from police and another count of driving
    while disqualified. The sentencing judge concluded that a two year sentence
    less credit on a one for one basis for presentence custody was appropriate. The
    appellant submits that the sentencing judge erred in failing to credit his
    pretrial custody of 283 days on an enhanced 1.5:1 ratio (424.5 days) against
    the sentence imposed.

[2]

The
sentencing judge refused this enhanced credit,
    deducting only the actual pretrial custody served:

I have considered
    the defence request that Mr. Plante receive enhanced credit for his presentence
    in custody. On five previous occasions Mr. Plante was a statutory release
    violator. I conclude that he is not a candidate for parole or early release. I
    have not been provided with information about overcrowding at the detention
    centre or other conditions that might have made Mr. Plantes presentence
    detention more onerous. The defence has not met its onus to demonstrate that
    enhanced credit should be awarded for the presentence in custody.

[3]

The appellant has a lengthy criminal record and
    has been sentenced to federal penitentiary terms on multiple occasions. While
    his record indicates that he has violated the terms of his statutory release
    for these sentences, there was no evidence of the nature of those violations,
    which could have amounted to anything from being out past a curfew, consumption
    of alcohol, or serious additional criminal activity. Federal corrections
    authorities may revoke statutory release given to an offender serving time in a
    penitentiary for a breach or apprehended breach of a condition of his release.
    Section 135(1) of the
Corrections and Conditional Release Act
, S.C. 1992, c. 20, provides:

135

(1)
A member of the Board or a person, designated by name or by position, by the
    Chairperson of the Board or by the Commissioner, when an offender breaches a
    condition of parole or statutory release or when the member or person is
    satisfied that it is necessary and reasonable to suspend the parole or
    statutory release in order to prevent a breach of any condition thereof or to
    protect society, may, by warrant,

(a)
suspend the parole or statutory release;

(b)
authorize the apprehension of the offender; and

(c)
authorize the recommitment of the offender to custody until the
    suspension is cancelled, the parole or statutory release is terminated or
    revoked or the sentence of the offender has expired according to law.

[4]

The sentencing judge imposed a sentence of less
    than two years, meaning that it would be served in a provincial institution,
    and the provincial regime governing parole and early release (or earned
    remission) would apply. As noted in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575,
at para. 24, [p]rovincial inmates are entitled to earned
    remission, absent bad conduct, credited at 15 days
per
month as calculated under the

Federal
Prisons and Reformatories Act
, R.S.C. 1985, c. P-20, s. 6 (incorporated by reference to Ontario
    reformatories by ss. 28 and 28.1 of the
Ministry of

Correctional
    Services Act
, R.S.O. 1990, c. M.22
) and further, at para. 25, [i]n practice, the vast majority of
    those serving reformatory sentences are released on remissionat approximately
    the two-thirds point in their sentence (citation omitted).

[5]

Section 32(2)(4) of R.R.O. 1990, Reg. 778, the
    general regulation under the
Ministry of

Correctional
    Services Act
, provides that where a provincial inmate has
    committed a misconduct of a serious nature, the Superintendent may impose
    forfeiture of a portion or all of the remission that stands to the inmates
    credit but no such forfeiture shall exceed 15 days without the Ministers
    approval. The definition of misconduct generally encompasses misbehavior
    within the institution (s. 29(1)).

[6]

This earned remission is different from parole,
    which s. 41 of the regulation provides may be granted after one third of a sentence
    has been served. In deciding whether an inmate is suitable to be granted
    parole, the Ontario Parole Board may consider any information it considers
    useful and relevant regarding the character, abilities and prospects of the
    inmate, including particulars of the trial, conviction and sentence, criminal
    record, background and living conditions, rehabilitative progress in the
    institution and medical information (s. 44).

[7]

A prisoner who is sentenced to 18 months jail,
    but does not obtain parole is released after 12 months because of earned remission,
    unless institutional misconduct results in forfeiture of remission. Twelve
    months of presentence custody is equivalent to an 18 month sentence in these
    circumstances. According to
Summers
, this
    differential alone justifies enhanced credit at a ratio of 1.5:1.

[8]

As pointed out in
Summers
, at para. 27, enhanced credit at 1.5:1 ensures that an offender
    who is released after serving two thirds of his sentence serves the same amount
    of time in jail, whether or not he is subject to pre-sentence detention and
    further, at para. 71,
the loss of early release,
    taken alone
, will generally be a sufficient basis to
    award credit at the rate of 1.5:1,
even if
the conditions of detention are not particularly harsh, and
parole is unlikely
. Of course, a lower
    rate may be appropriate when detention was a result of the offenders bad
    conduct, or the offender is likely to obtain
neither
early release nor parole (emphasis added).

[9]

We agree that the appellant was, because of his
    criminal record, unlikely to obtain parole.  The issue is whether he would be
    eligible for earned remission, which would result in his release after serving
    two thirds of his sentence.

[10]

The sentencing judge was wrong to equate
    re-committal for violation of the terms of statutory release under the federal
    system with misconduct while serving a sentence within a provincial institution
    which would lead to a loss of earned remission under the provincial system.
    There was no evidence here of institutional misconduct which would likely lead
    to a prolongation of the appellants incarceration past the two thirds mark of
    his sentence. This was an error in principle that had an impact on the sentence
    (
R. v. Lacasse
,

2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44). The sentencing
    judge did not have the benefit of the arguments made on appeal.

[11]

As indicated in
Summers
, at para. 79:

Generally
    speaking, the fact that pre-sentence detention has occurred will usually be sufficient
    to give rise to an inference that the offender has lost eligibility for parole or
    early release, justifying enhanced credit. Of course, the Crown may respond by
    challenging such an inference. There will be particularly dangerous offenders
    who have committed certain serious offences for whom early release and parole
    are simply not available. Similarly, if the accuseds conduct in jail suggests
    that he is unlikely to be granted early release or parole, the judge may be
    justified in withholding enhanced credit.

[12]

We would accordingly reduce the global sentence
    of one year and 82 days by a further 142 days, resulting in a total sentence of
    305 days, which we allocate 200 days to the flight charge on count 2, and 105
    days consecutive to the driving while disqualified charge on count 3. In all
    other respects the decision of the sentencing judge is confirmed.

G.
    Pardu J.A.

M.L.
    Benotto J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Porto, 2018 ONCA 291

DATE: 20180323

DOCKET: C63513

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamie Porto

Appellant

David Butt and Maija Martin, for the appellant

Frank Au, for the respondent

Heard: March 20, 2018

On appeal from the
    conviction entered on December 15, 2016 and the sentence imposed on March 22,
    2017 by Justice Bruce G. Thomas of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR
    DECISION

[1]

The appellant argues that the trial judge erred
    in convicting him of dangerous driving causing bodily harm. The appellant, a
    police officer, was responding to an emergency at high speed. He drove through
    a small town where the posted speed limit was 50 kmph, at a speed of 178 kmph.
    He passed a construction zone and a school, and crashed into a vehicle
    travelling in the same direction, but in the process of making a left turn as
    the appellant tried to pass him on the left. Trial counsel conceded that the
    high speed driving amounted to driving in a manner dangerous to the public, and
    thus established the
actus reus
of the
    offence. It was also conceded that the appellants driving was a cause of the
    bodily harm resulting from the collision. The substantial issue for trial was
    whether the Crown had proven beyond a reasonable doubt that the appellants
    driving amounted to a marked departure from the standard of care that a
    reasonable person would observe in the accuseds circumstances. (
R.
    v. Roy
, 2012 SCC 26 at para. 28,
R. v. Beatty
, 2008 SCC 5)

[2]

The appellant argues firstly that the trial
    judge did not apply the criminal standard of proof beyond a reasonable doubt in
    deciding this question. He submits that it was not sufficient for the trial
    judge to simply express disagreement with the appellants argument that his
    driving did not amount to a marked departure from the norm; the trial judge had
    to go further and assess whether this element of the offence was proven beyond
    a reasonable doubt.

[3]

We do not agree that the trial judge failed to
    apply the appropriate standard of proof. The trial judge expressly acknowledged
    the defence arguments at paragraph 75 of his reasons,

The defence
    argues that although the driving was dangerous, I must, at the very least, have
    a reasonable doubt as to whether Constable Portos conduct amounted to a marked
    departure from the standard of care which a reasonable police officer would
    have exercised in the same circumstances. I am reminded that this officer was
    responding to a potential life-threatening call. A call where Constable Porto
    and other testifying officers suggested a few seconds could make a real
    difference in the survival of the injured caller.

[4]

Ultimately, the trial judge concluded that the
    appellants driving amounted to a marked departure from the standard of care of
    a reasonable police officer, at para. 90,

Constable Porto
    should have foreseen the danger posed by Mr. Coombess vehicle. At the speed he
    was travelling, he should have realized that he had no time to react if he
    guessed wrong. I find that the reasonable police officer in these circumstances
    would have reduced his speed dramatically and maintained his eastbound lane
    until he was sure of the intentions of Ryan Coombes. The failure to reduce his
    speed and proceed to pass at this intersection in the middle of the village
    amounted to a marked departure from the standard of care of a reasonable police
    officer.

[5]

The trial judge carefully reviewed all of the
    surrounding circumstances, including those said to raise a doubt as to the
    degree of the appellants departure from the norm:

1.

The serious nature of the emergency call to which the appellant was
    responding;

2.

Police officers training and experience in high speed driving.
    Other officers endorsed the appellants manner of driving;

3.

The exemption in s. 128(13) of the
Highway Traffic Act
R.S.O. 1990, c. H.8 allowing police officers to exceed posted speed limits in
    the performance of their duties;

4.

The condition of the road, wide, straight and dry;

5.

The quiet time of the day, school was in session nearby;

6.

The appellants awareness of the construction zone;

7.

The appellants familiarity with the village;

8.

The contribution to the collision caused by the other vehicles
    failure to pull over to the right in response to the lights and siren of the
    appellants vehicle, and the possible failure of the other driver to signal a
    left turn.

[6]

Having considered all of the circumstances, the
    trial judge concluded that the appellants excessive speed in and of itself
    amounted to a marked departure from the standard of care of a reasonable police
    officer. It was open to the trial judge to reach this conclusion. We are not
    persuaded that he applied a standard of proof less rigorous than proof beyond a
    reasonable doubt.

[7]

This brings us to the second argument made by
    the appellant against conviction, that the trial judge overemphasized speed as
    a factor. Given that the trial judge concluded that speed alone amounted to a
    marked departure, it is difficult to see how he could over-emphasize this
    factor. As the trial judge found, at 178 kmph the appellant had virtually no
    time to react to emergencies or foreseeable conduct by other drivers.

[8]

Accordingly, the appeal from conviction is
    dismissed.

[9]

The appellant also seeks leave to appeal from
    the sentence imposed, a $2500 fine and a one year driving prohibition. He
    acknowledges that the sentence imposed by the trial judge was fit, but asks
    that we consider fresh evidence and on that basis substitute a discharge. The
    gravamen of the fresh evidence is that the appellant is a conscientious and
    able police officer respected by his superiors and his peers. That same
    evidence was before the trial judge and it provides no basis upon which this
    court could interfere with the sentence he imposed. Leave to appeal the
    sentence is granted, the motion to admit fresh evidence is dismissed and the
    appeal from sentence is dismissed.

Robert J. Sharpe J.A.

G. Pardu J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Primmer, 2018 ONCA 306

DATE: 20180327

DOCKET: C62678

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Primmer

Appellant

Richard Litkowski and John Fennel, for the appellant

Megan Petrie, for the respondent

Heard: March 20, 2018

On appeal from the conviction entered on August 27, 2015
    by Justice Thomas McKay of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of assault causing bodily harm as a result
    of an altercation in a correctional facility. The appellant was recognized as
    the heavy on his range, the inmate who was respected by the guards and other
    inmates to serve food and to maintain order and control within the unit. The
    complainant, a recognized troublemaker, came into the unit and, by his words
    and actions, challenged the appellants authority. The appellant responded by
    punching the complainant in the head 25 to 30 times with his fists. The attack
    was captured and recorded by a security camera.

[2]

The sole defence at trial was self-defence. The trial judge reviewed the
    evidence in some detail and concluded that the Crown had disproved self-defence
    beyond a reasonable doubt.

[3]

The principal ground of appeal raised by the appellant is the submission
    that the trial judge failed to pay adequate attention to the evidence relating
    to the prison setting and the inmates code. The appellant contends that the
    inmates code establishes certain norms and standards which required the
    appellant to use force to respond to the complainants challenge or face at
    some point a violent attack from the complainant or the other inmates.

[4]

We disagree with that submission. The trial Judge conducted a careful
    review of the appellants evidence relating to the prison context and what the
    appellant claimed to be the motivation for the attack.

[5]

No issue is taken with the trial judges analysis of the legal elements
    for self-defence. The trial judge concluded that the appellant launched what
    amounted to a pre-emptive attack on the complainant to maintain his status as
    the heavy and to discourage the complainant or any other inmate from
    challenging that status. At the point he assaulted the complainant, the
    complainant had done nothing more than use disrespectful language and threaten
    future violence.

[6]

The prison setting and the inmates code had to be considered as
    crucial contextual factors in assessing self-defence. However, that context
    does not trump the
Criminal Codes
legal definition of self-defence.

[7]

The reasons of the trial judge demonstrate that he did take the prison
    context into account but that he found that the Crown had proved beyond a
    reasonable doubt that the legal elements of self-defence were not met. It was
    open to the trial judge to find beyond a reasonable doubt that the appellant
    had acted not in self-defence, but out of anger and a desire to maintain his
    status. (para. 73) Given the timing and nature of the assault, the trial judge
    was also entitled to find that the Crown had proven beyond a reasonable doubt
    that the appellants actions were not reasonable in the circumstances (para.
    74). On this record, the trial judge was entitled to find that [t]he use of
    force [by the complainant] was not imminent and that [t]he nature of the
    threat was more bravado than a threat that [the complainant] appeared capable
    or motivated to carry out (para. 74).

[8]

We do not accept the submission made in the appellants factum that the
    trial judge made a
W.D
. error. While the trial judge did not recite
    the
W.D.
test, that is not fatal provided the trial judge properly
    applies the burden of proof. The trial judge did so in this case. He clearly
    stated and understood that the burden of disproving self-defence remained
    throughout on the Crown and it is apparent from his reasons that the
    appellants evidence did not leave him with a reasonable doubt.

[9]

At one point in his reasons, the trial Judge indicated that he had seen
    the complainant on a pretrial attendance and observed that he would not be
    described as a highly fit man (para.66). The complainant did not appear at the
    trial to testify and the appellant argues that the trial judge erred by relying
    on evidence outside the record. While the trial judge should not have relied on
    his pretrial observation of the complainant we are not persuaded that this
    caused any prejudice to the appellant. The appellant himself admitted in
    cross-examination that the complainant was not as physically fit as he was.
    Moreover there was other evidence, including the video, from which the trial
    judge could readily conclude that the complainant was no physical match for the
    appellant.

[10]

For
    these reasons, the appeal from conviction is dismissed.

Robert J. Sharpe
    J.A.
G. Pardu J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pun, 2018 ONCA 240

DATE: 20180313

DOCKET: C63042

Pardu, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yuk Yee Pun

Appellant

Marie Henein & Christine Mainville, for the
    appellant

Rachel Young, for the respondent

Heard:  March 8, 2018

On appeal from the conviction entered on August 25, 2016
    and the sentence imposed on January 26, 2017 by Justice Nyron Dwyer of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Ms. Pun appeals from her conviction for fraud over $5,000.  She also
    seeks leave to appeal the sentence of 30 months that was imposed and, if leave
    is granted, asks for the sentence to be reduced.

[2]

The basic facts are that Ms. Pun convinced the complainant to invest
    with her the sum of $620,000 for the purpose of buying some land.  The
    purchased land was then to be resold to a third party at a profit which would
    be shared between the appellant and the complainant.

[3]

The complainant advanced the $620,000 to the appellant but no land was
    purchased.  Rather, a different land transaction was proposed but that too did
    not happen.  Then, over a period of months, promises were made by the appellant
    that a deal would be done but that never materialized.  Despite assurances from
    the appellant that his monies would be returned, that also never happened.

[4]

The only evidence at trial was from the complainant.  The trial judge
    found the complainant to be a credible and reliable witness. The trial judge
    also found that there was no evidence that the monies provided to the appellant
    were ever used for any type of real estate transaction.  Rather, as found by
    the trial judge, the monies simply vanished.

[5]

The trial judge rejected the defence that this was just a business deal
    that went bad. The trial judge found that the appellant had no intention of
    following through with the transaction that she used as the incentive to get
    the complainant to forward the monies to her.

[6]

The appellant submits that the trial judge erred by: (i) reversing the
    onus of proof by starting his analysis with the proposition that there was no
    competing narrative; and (ii) failing to conduct a credibility and
    reliability analysis of the lone witness at trial.

[7]

The appellant refers to the trial judges use of the phrase no
    competing narrative.  The appellant submits that these references reflect an
    improper reversing of the burden of proof by the trial judge.  The appellant
    says that this conclusion is evident from the exchanges that occurred between
    the trial judge and defence counsel during closing submissions.

[8]

We reject the defence submission that we should interpret the trial
    judges reasons by reference to the trial judges remarks during closing
    submissions. A trial judge speaks through reasons for decision.  An appeal is
    from reasons, not from the judges comments during submissions.  That said,
    even if we were to consider the exchanges in this case, we do not see them as
    establishing that the trial judge improperly reversed the burden of proof but,
    rather, that he was attempting to fairly understand the appellants
    submissions.

[9]

In our view, when the trial judge made references to a competing
    narrative, and to the lack of other evidence, he was focussing on the need for
    there to be a plausible theory other than the one consistent with guilt.  That
    is the principle established in many cases, including
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000 where Cromwell J. said, at para. 37:

When assessing circumstantial evidence, the trier of fact
    should consider "other plausible theor[ies]" and "other
    reasonable possibilities" which are inconsistent with guilt: [citations
    omitted].

[10]

The
    trial judge concluded that the complainant intended to invest in a land
    transaction and rejected the defence contention that this was just a failed
    business loan.  Those conclusions were available to him on the record.  He was
    correct in concluding that there was no evidence to substantiate the suggestion
    that, in some fashion, the uncompleted land transaction turned into an
    agreement by the complainant to provide money to the appellant for general
    investment purposes.  His reference to the lack of evidence to support such a
    suggestion was not improper.  It was consistent with the use of that expression
    as set out in
R. v. Noble
, [1997] 1 S.C.R. 874 where Sopinka J. said, at
    para. 78:

Such treatment of the silence of the accused does not offend
    either the right to silence or the presumption of innocence. If silence is
    simply taken as assuring the trier of fact that it need not speculate about
    unspoken explanations, then belief in guilt beyond a reasonable doubt is not in
    part grounded on the silence of the accused, but rather is grounded on the
    evidence against him or her. The right to silence and its underlying rationale
    are respected, in that the communication or absence of communication is not
    used to build the case against the accused. The silence of the accused is not
    used as inculpatory evidence, which would be contrary to the right to silence,
    but simply is not used as exculpatory evidence.

[11]

Lastly,
    the appellant submits that the trial judge failed to give adequate reasons for finding
    the complainant to be credible and reliable.  We do not agree.  The trial
    judge saw and heard the complainant.  His reasons, taken as a whole, adequately
    explain why he found the complainant to be believable on the central issue,
    that is, that he advanced monies to the appellant for a land transaction and
    not for general business purposes.  In considering the trial judges conclusion
    in this regard, we are mindful of the observation that has been made in a
    number of cases on the difficulty of enunciating the reasons why a witness may
    or may not be believed.  As Bastarache and Abella JJ. said in
R. v. Gagnon
,
    2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20:

Assessing credibility is not a science. It is very difficult
    for a trial judge to articulate with precision the complex intermingling of
    impressions that emerge after watching and listening to witnesses and
    attempting to reconcile the various versions of events. That is why this Court
    decided, most recently in
H.L.,
that in the absence of a palpable and
    overriding error by the trial judge, his or her perceptions should be
    respected.

[12]

In
    the end result, the trial judge correctly stated the law on what constitutes
    fraud.  He made the necessary factual findings to conclude that the legal
    requirements for a conviction for fraud were made out.  There is no basis for
    this court to interfere with those findings.

[13]

In terms of the sentence appeal, the sentence of 30 months
    imposed is within the range of sentence for frauds of this nature:
R. v.
    Dobis
(2002), 58 O.R. (3d) 536 (C.A.).  Indeed, it would be at the low end
    of that range.  The trial judge properly considered all of the aggravating and
    mitigating circumstances in this case.  Again, there is no basis to interfere
    with his conclusion on sentence.

[14]

The appeal against conviction is
    dismissed.  Leave to appeal sentence is granted but the appeal is dismissed.

G. Pardu J.A.

M.L. Benotto
    J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rage, 2018 ONCA 211

DATE: 20180302

DOCKET: C62888

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

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullahi Rage

Appellant

Faisal Mirza, for the appellant

Bari Crackower, for the respondent

Heard: February 28, 2018

On appeal from the conviction entered by Justice Graeme
    Mew of the Superior Court of Justice on April 29, 2016, with reasons reported
    at 2016 ONSC 2973, and the sentence imposed on November 3, 2016.

REASONS FOR DECISION

[1]

The appellant was convicted of three counts of
    trafficking cocaine and one count of possession of cocaine for the purpose of
    trafficking.  He was also convicted of possession of marihuana. The appellant
    was sentenced to two years imprisonment, to be followed by three years
    probation.

[2]

The appellant appeals his conviction and sentence. As
    part of his sentence appeal, he has brought an application for the admission of
    fresh evidence.

[3]

For the reasons that follow, we dismiss the conviction
    appeal and the sentence appeal.

Conviction Appeal

[4]

On his conviction appeal, the appellant submits that
    the trial judge: (i) reversed the onus by drawing an adverse inference from his
    failure to call his employer as a witness; (ii) improperly relied on
    cross-examination on an affidavit sworn by him as part of a
Rowbotham
application; and (iii) made adverse factual findings insufficiently
    grounded in the evidence. We do not give effect to any of these grounds of
    appeal.

[5]

The adverse inference submission is based solely on the
    sentence emphasized below in paragraph 78 of the trial judges reasons:

[78]

Mr.
    Rage says that Mr. Ahmed owed him $2,500 for a motorcycle. He implied that he
    had used his employers resources to purchase the motorcycle and that he (Mr.
    Rage) owed $2,500 to his employer.
There was no evidence from the employer
    or other evidence corroborating this
. Mr. Rage admitted meeting with Mr.
    Ahmed twice on 5 October 2011 but says he did so just so Mr. Ahmed could tell
    him, twice, that he did not have the money. It makes no sense.

[79]

And despite the fact that he had $3,850 in his
    apartment, he claimed that his employer had effectively fronted him $2,500 to
    buy the motorcycle for Mr. Ahmed. Despite his protestations that he needed
    money from Mr. Ahmed in cash to pay the $2,500 to his boss, he had
    significantly more than that amount sitting in his dresser in his apartment.

[6]

In our view, there was no reversal of onus and the
    trial judge did not draw an adverse inference. Rather, he found that the
    appellants evidence that sought to justify his meetings with a drug trafficker
    (Mr. Ahmed) as part of his employment duties was not capable of belief. This
    was an available finding on the evidence and there is no basis for appellate
    interference. Read fairly and in context, the impugned sentence in the trial
    judges reasons was nothing more than a reference to the available evidence on
    the point.

[7]

The appellant submits that the trial judge wrongly relied
    upon an apparent inconsistency elicited during his cross-examination on his
Rowbotham
affidavit in rejecting his evidence about why he rented luxury
    vehicles. We disagree that he relied on the inconsistency. While the trial
    judge briefly mentioned the affidavit when reviewing the appellants evidence,
    there was no further reference to it in his analysis on this or any other
    credibility finding. It was open to the trial judge to reject the appellants
    explanation that he drove such vehicles as part of his minimum wage job at a
    car dealership as a matter of common sense and given the expert testimony that
    use of rental cars is an indication of drug dealing.

[8]

With respect to the other impugned factual findings, we
    are of the view that they were all grounded in the evidence and available to
    the trial judge. For example, unchallenged expert evidence supported the
    finding that two pieces of metal discovered in the appellants home were part
    of a cocaine press. The fact that the pieces fit together was also inconsistent
    with the appellants position that they were unrelated pieces of metal from his
    welding class.

Sentence Appeal

[9]

We dismiss the application for fresh evidence. In our
    view, the proposed fresh evidence would not have impacted the decision below as
    it is largely a reiteration of the information submitted to the trial judge during
    the sentencing proceeding regarding the appellants personal circumstances.

[10]

The appellant asserts that the trial judge erred in not imposing a
    conditional sentence.  It is well established in the jurisprudence that a trial
    judges decision regarding the appropriateness of a conditional sentence is
    entitled to considerable deference:
R. v. Peterson
(2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 58.

[11]

In this case, it is clear from his reasons for sentence that the
    trial judge was alive to the applicable factors for the imposition of a
    conditional sentence but concluded that a penitentiary sentence was warranted
    and that a conditional sentence would not give sufficient weight to the
    objectives of general and specific deterrence or adequately denounce the
    appellants criminal conduct.

[12]

The appellant argues that the trial judge erred by not considering
    the over representation of African-Canadians in the nations prison system as a
    basis for ordering a conditional sentence. We note that this argument was not
    raised before the trial judge, so it is difficult to find fault in his failure
    to deal with it.

[13]

In any event, the comments of this court in
R. v. Borde

(2003), 63 O.R. (3d) 417 (C.A.) are apt. In that case
    Rosenberg J.A. found that,
the
    principles that are generally applicable to all offenders, including African
    Canadians, are sufficiently broad and flexible to enable a sentencing court in
    appropriate cases to consider both the systemic and background factors that may
    have played a role in the commission of the offence and the values of the
    community from which the offender comes (para. 32).

[14]

We accept the Crowns submission that the flexible
    approach to sentencing described by Rosenberg J.A. is precisely what happened
    in this case. The trial judge noted that the sentencing range for possession of
    a substantial amount of cocaine for the purpose of trafficking was from five to
    eight years imprisonment. He then went on to craft a sentence that was well
    below the range he identified and in so doing, adequately took into account the
    appellants particular circumstances.

[15]

In summary, we are not satisfied that the trial judge made any error
    in principle or that the sentence is unfit so as to warrant appellate
    interference.

Disposition

[16]

The appeal is dismissed. The application for fresh evidence is
    dismissed. Leave to appeal sentence is granted but the sentence appeal is
    dismissed.

G.R. Strathy C.J.O.

Janet Simmons J.A.

C.W. Hourigan J.A.