COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Courtice Auto Wreckers
    Limited, 2014 ONCA 189

DATE: 20140311

DOCKET: C56426

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Courtice Auto Wreckers Limited

Respondent

Danielle Meuleman and Sarah Kromkamp, for the appellant

Jeffrey R. Manishen, for the respondent

Heard: October 18, 2013

On appeal from the judgment of Justice Bernd Zabel of the
    Ontario Court of Justice, dated October 26, 2012.

Rouleau J.A.:

[1]

The single issue under appeal is the proper route to be taken by the
    Crown when it seeks to set aside a decision by a trial court to stay a proceeding
    commenced under the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (the

Act
),

as a remedy under the
Canadian Charter of Rights
    and Freedoms
(the
Charter
)
.

[2]

May the Crown appeal such a stay under s. 116(1)(b) of the
Act
,
    or must the Crown resort to
certiorari
? For the reasons that follow, I
    have concluded that an appeal is the proper route to follow.

FACTS

[3]

In October 2007, an order was issued under the
Environmental
    Protection Act
, R.S.O. 1990, c. E.19, by a Director with the Ministry of
    the Environment requiring Courtice Auto Wreckers Limited (Courtice) to either
    apply for all applicable approvals to construct a permanent berm on a property
    near Hamilton, Ontario, or remove all of the berm material from the property.
    Courtice is alleged not to have complied with the order. On December 14, 2009, Courtice
    was charged by way of an information under Part III of the
Act
with
    failing to comply with the Directors order. The Crown and the defence were
    ready for trial by July 6, 2010. However, through no fault of either side, the
    matter was not scheduled for trial until August 30, 2011, more than 20 months
    after the information was laid.

[4]

Before trial, Courtice brought an application under s. 11(b) of the
Charter
claiming that its right to be tried within a reasonable time had been violated.
    On August 30, 2011, a justice of the peace granted a stay of all charges
    pursuant to s. 24(1) of the
Charter
.

[5]

The Crown appealed the stay order pursuant to s. 116(1) of the
Act
to the Ontario Court of Justice on the ground that the stay was entered in
    error. Courtice responded by arguing that there is no right of appeal under s.
    116(1) of the
Act
from a judicial stay, including a stay of
    proceedings entered as a
Charter
remedy. On October 26, 2012, Zabel J.
    dismissed the Crowns appeal for want of jurisdiction. He held that the proper
    avenue for appealing a stay under the
Act
is by way of the
    extraordinary remedy of
certiorari
in the Superior Court.

[6]

The Crown sought leave to appeal to this court and on December 20, 2012,
    leave was granted by MacPherson J.A.

ISSUE

[7]

The issue to be decided is whether the learned provincial offences appeal
    court judge erred in finding that there is no right of appeal under s. 116(1)
    of the
Act
from a judicial stay of proceedings entered as a
Charter
remedy.

ANALYSIS

[8]

Section 116(1) of the
Act
provides as follows:

Where a proceeding is commenced by information under Part III,
    the defendant or the prosecutor or the Attorney General by way of intervention
    may appeal from,

(a) a conviction;

(b) a dismissal;

(c) a
    finding as to ability, because of mental disorder, to conduct a defence;

(d) a sentence; or

(e) any other order as to
    costs.

[9]

The Crown argues that the term a dismissal in s. 116(1)(b) encompasses
    acquittals and other final dispositions that are tantamount to an acquittal.
    This would include a stay of proceedings entered as a
Charter
remedy
    because such a stay is a final disposition that, for all intents and purposes,
    is tantamount to an acquittal.

[10]

For
    its part, Courtice argues that a stay is not a dismissal as the matter has not
    been heard on the merits. In Courtices view, the Crowns remedy is to appeal
    by way of
certiorari
pursuant to s. 140(1) of the
Act
. That
    section reads as follows:

Mandamus, prohibition, certiorari

140(1) On application, the Superior Court of Justice may by
    order grant any relief in respect of matters arising under this Act that the
    applicant would be entitled to in an application for an order in the nature of
    mandamus, prohibition or certiorari.

[11]

The
Act
makes it clear, however, that both the Crown and the respondent
    cannot be correct. Section 141(3) of the
Act
provides that an
    application under s. 140(1) is not available to quash a conviction, order or
    ruling from which an appeal is provided by this Act, whether subject to leave
    or otherwise.

[12]

The
    case law in the lower courts is, to some extent, divided on this issue. Some
    cases tend to support the Crowns position:
R. v. Boise Cascade Canada Ltd.
,
    [1991] O.J. No. 1831 (Gen. Div.);
R. v. Barker
, [1992] O.J. No. 545
    (Gen. Div.);
R. v. VTC Industrial Coatings Ltd.
, [1996] O.J. No. 5478
    (Prov. Div.);
R. v. Sansone
, [1992] O.J. No. 3728 (Prov. Div.). Others
    could be read as supporting the respondent:
Ontario (Ministry of the
    Environment) v. Sault Ste. Marie (City)
(2007)
,
    34 C.E.L.R. (3d) 123 (Ont. S.C);
R. v. Smith
(2008)
, 175 C.R.R. (2d) 13 (Ont. S.C.);
R.
    v. Kramer
(2007)
, 31
    M.P.L.R. (4th) 79 (Ont. S.C.).

1.       The relevance of
R. v. Jewitt

[13]

The
    issue whether the term acquittal encompasses a judicial stay for appeal
    purposes has been addressed by the Supreme Court of Canada, albeit in a
    different context, in
R. v. Jewitt
, [1985] 2 S.C.R. 128. In that case,
    the Supreme Court considered whether the Crown right to appeal from the
    judgment or verdict of acquittal of a trial court (as outlined in what was then
    s. 605(1)(a) of the
Criminal Code
) included the right to appeal from a
    judicial stay. In
Jewitt
, at p.
    148, the Supreme Court concluded that the answer was yes
because a
    judicial stay was tantamount to a judgment or verdict of acquittal.

[14]

The
    debate in
Jewitt
centered on whether a stay based on an abuse of
    process by the Crown should be considered tantamount to an acquittal in light
    of the fact that a stay only suspended proceedings, albeit permanently, in
    circumstances where an acquittal on the merits was not justified. Put
    differently, a stay intervenes to prevent consideration of the merits lest a
    conviction occur in circumstances which would bring the administration of
    justice into disrepute:
Jewitt
, at p. 148.

[15]

In
    reaching the conclusion that a judicial stay based on an abuse of process by
    the Crown was tantamount to an acquittal for the purposes of determining the
    scope of the Crowns appeal rights under what was then s. 605(1)(a) of the
Criminal
    Code
, the Supreme Court, at p. 144, reviewed the jurisprudence and listed
    three considerations cited by provincial appellate courts that supported this
    result:

1.  Although the
    charge remains extant following a stay of proceedings, there is no forum for
    its further processing and hence a stay is, in reality, a final decision.

2.  Abuse of
    process is an issue which goes to the merits of the case. A stay of proceedings
    releases the accused from all further proceedings. It is therefore a
    substantive, rather than a merely procedural, decision.

3.  The
    reasoning expressed in the cases on quashing an indictment. As Martin J.A.
    stated in
Beason
,
supra
, at pp. 31-32:

The law has
    been settled by a series of decisions by the Supreme Court of Canada that where
    an indictment has been quashed, not on the basis of the defects in the
    indictment or technical procedural irregularities, but on grounds going to the
    substance or merits of the charge so as to give rise to the plea of
autrefois
    acquit
if the accused were subsequently charged, the order quashing the
    indictment is tantamount to an acquittal and an appeal lies from the order
    quashing the indictment: see
R. v. Sheets
, [1971] S.C.R. 614, 1 C.C.C.
    (2d) 508, 16 D.L.R. (3d) 221;
Lattoni and Corbo v. The Queen
, [1958]
    S.C.R. 603, 121 C.C.C. 317. The principle enunciated in these cases has been
    applied, correctly I think, to cases where proceedings have been stayed or
    indictments quashed because of contraventions of rights secured by the
Canadian
    Charter of Rights and Freedoms
and in which the disposition made by the
    trial judge constitutes a final disposition of the prosecution which precludes
    its subsequent revival:

[16]

The
    Supreme Court went on to explain that a stay on the basis of abuse of process,
    like the quashing of an indictment, was based on a complex question of law and
    fact. In the Courts view, a stay is a final decision, that is to say, a
    judgment rendered on a question of law after the accused was placed in jeopardy,
    such that if the accused were charged subsequently with the same offence he
    could plead
autrefois acquit
:
Jewitt
,
at p. 145.

[17]

Although
    the Court equated a stay to an acquittal, the Court cautioned, at p. 148, that:

While a stay of proceedings of this nature will have the same
    result as an acquittal and will be such a final determination of the issues
    that it will sustain a plea of
autrefois acquit
, its assimilation to
    an acquittal should only be for purposes of enabling an appeal by the Crown.
    Otherwise, the two concepts are not equated. The stay of proceedings for abuse
    of process is given as a substitute for an acquittal because, while on the
    merits the accused may not deserve an acquittal, the Crown by its abuse of
    process is disentitled to a conviction.

2.       Does the reasoning in
Jewitt
apply to appeal
    rights under the
Act
?

[18]

The
    stay in
Jewitt
was based on an abuse of process by the Crown, while
    the stay in this case was granted as a remedy under s. 24(1) of the
Charter
for violation of Courtices rights under s. 11(b) of the
Charter
.
    Nonetheless, in my view, the analysis adopted by the Supreme Court of Canada in
Jewitt
should apply to the interpretation of s. 116(1)(b) of the
Act
.
    As noted above, the Court in
Jewitt
, at p. 148, found that a judicial
    stay was tantamount to a judgment or verdict of acquittal, and the same
    reasoning leads to the conclusion that a judicial stay in this case is
    tantamount to a dismissal.

[19]

The
    respondent, however, urges the court not to apply
Jewitt
to this case.
    The respondent points first to the fact that the
Criminal Code
was
amended to specifically provide the
    Crown with a right of appeal from an order staying proceedings, in what is now
    s. 676.
[1]
No similar amendment was made to the
Act
.

[20]

Further,
    the respondent explains that the context in
Jewitt
was quite different
    from the circumstances at issue here. If the Supreme Court had concluded in
Jewitt
that the term acquittal in what was then s. 605(1)(a) of the
Code
did
    not encompass a judicial stay, the Crown would have been unable to pursue the
    matter further. This is because the stay at issue in
Jewitt
was
    imposed by a superior court, and the prerogative writs are not available to
    review decisions of courts of inherent jurisdiction. The respondent argues that
    the circumstances at issue here are quite different. The stay imposed in favour
    of Courtice was imposed by a court of inferior jurisdiction and, as noted
    earlier, the
Act
specifically provides that where no right of appeal is
    provided for in the statute, the Crown can resort to the prerogative writs,
    including
certiorari
. In short, the respondent submits that the
    Supreme Courts interpretation of the term acquittal in
Jewitt
was
    driven by the need to provide the Crown with a route by which to challenge a
    stay, and that no such imperative exists here.

(i)

Dismissal and acquittal

[21]

Before
    turning to the two points raised by the respondent, I will address the fact
    that the wording of s. 116(1)(b) of the
Act
differs from the version
    of s. 605(1)(a) of the
Criminal Code
considered by the Supreme Court
    in
Jewitt
. The
Act
gives the Crown a right to appeal from a dismissal,
    whereas the
Code
granted a right to appeal from a judgment or verdict
    of acquittal. In my view, nothing flows from the legislatures decision to use
    the term dismissal rather than the term acquittal in s. 116(1)(b). I say so
    because the legislature appears to have been using the term dismissal
    interchangeably with the term acquittal. The decisions from which an appeal
    can be taken are set out in s. 116 of the
Act
. This provision must be
    read harmoniously with the remedial provisions in the
Act
: see e.g.
    ss. 120, 121, and 122. The remedial provision outlining a courts authority in
    the event that an appeal from a dismissal taken under s. 116(1)(b) is allowed
    reads as follows:

Orders on appeal against acquittal

121. Where an appeal is
    from an acquittal, the court may by order,

(a) dismiss the appeal;
    or

(b) allow the appeal, set
    aside the finding and,

(i)
    order a new trial, or

(ii) enter a
    finding of guilt with respect to the offence of which, in its opinion, the
    person who has been accused of the offence should have been found guilty, and
    pass a sentence that is warranted in law.

[22]

The
    legislature therefore clearly saw no difference between the term dismissal as
    it is used in s. 116(1)(b), and the term acquittal as it is used in s. 121.

(ii)

Relevance of the
Criminal Code
amendments

[23]

In
    my view, the fact that the
Criminal Code
was amended shortly after
Jewitt
to specifically provide the Crown with a right to appeal from a judicial stay
    does not make the reasoning in
Jewitt
any less pertinent to the
    present appeal. The post
-Jewitt
amendments to ss. 676 and 813 did not
    effect a change in the law; they simply made express what the Supreme Court viewed
    as the existing situation in law.

[24]

The
Act
was adopted by the legislature in 1979 before the amendments to
    the
Criminal Code
were made to specifically provide the Crown with a
    right to appeal from a judicial stay. There is good reason to expect that by
    using the same or analogous terms, the legislature intended these terms to be
    interpreted in the same way.

[25]

The
    legislature explained that the
Act
was adopted to replace the summary
    conviction procedure for the prosecution of provincial offences, including the
    provisions adopted by reference to the
Criminal Code
(Canada)
, with a procedure that reflects
    the distinction between provincial offences and criminal offences: s. 2(1) of
    the
Act
. The legislature specifically recognized that the
Criminal
    Code
provisions would serve as a guide to interpreting this new
Act
.
    It expressed this in s. 2(2) of the
Act
, which reads as follows:

Where, as an aid to the interpretation of provisions of this
    Act, recourse is had to the judicial interpretation of and practices under
    corresponding provisions of the
Criminal Code
(Canada), any variation in
    wording without change in substance shall not, in itself, be construed to
    intend a change of meaning.

The fact that the legislature did not amend the
Act
after the
Jewitt
decision is consistent with the legislature being
    content with the Courts interpretation of the word acquittal in
Jewitt
.

[26]

The
    respondent suggests that the fact that the
Act
was amended in 2009 to
    provide for an appeal against any other order as to costs, but was not amended
    to provide for an appeal from a judicial stay, lends further support to its
    position. In the respondents view, this is a further indication of the
    legislatures intention that s. 116 be read as excluding appeals from judicial
    stays.

[27]

Again,
    I disagree. The amendment made was necessary. It provided for a right of appeal
    where none existed previously. As explained earlier, no amendment was required
    to provide for an appeal from a judicial stay given the interpretation of the
    term acquittal in
Jewitt
. I acknowledge that the legislature could
    have taken the opportunity to follow the approach taken by Parliament with
    respect to the
Criminal Code
. This would have removed any doubt. However,
    in my view, the failure to do so does not signal an intention on the part of
    the legislature to depart from the reasoning in
Jewitt
.

(iii)

The prerogative writs

[28]

The
    respondent also argues that there is a significant distinction between
Jewitt
and the present case that should lead the court to interpret the term dismissal
    differently from the term acquittal as construed in
Jewitt
. The
    respondent explains that, had the Supreme Court not interpreted the term acquittal
    as including the right to appeal from a judicial stay, the Crown would have
    been left with no remedy and could never seek to set aside judicial stays. In
    effect, the respondent argues that the Supreme Courts decision in
Jewitt
was driven by a concern that the Crown should not be left without a remedy.

[29]

The
    respondent submits that the situation is quite different under the
Act
.
    The legislature has specifically provided that, where no appeal lies, the
    prerogative writs are available to the Crown. For provincial offences the stay
    would be imposed in the Ontario Court. As a result, the prerogative writs would
    be available to the Crown and the Crown would not be left without a remedy.

[30]

Although
    I acknowledge that there is a significant difference between the statutory
    frameworks at issue in
Jewitt
and under consideration here with
    respect to the availability of the prerogative writs, I agree with the response
    given by Maloney J. when the same submission was made to him in
Boise
    Cascade
. In
Boise Cascade
, Maloney J. stated that nowhere in
Jewitt
is it suggested that an attempt is being made to fill any legislative gap
    which may have existed. In my opinion, it would be inappropriate to disregard
    those cases on the basis of the reasoning suggested by the respondents.

[31]

In
    its factum, the respondent takes the position that Maloney J. was wrong. It
    submits that paragraph 55 of
Jewitt
addresses the importance of providing
    the Crown this right of appeal in the absence of express language granting such
    a right. I do not read paragraph 55 in that way. Paragraph 55 of
Jewitt
(at
    pp. 147-48) reads as follows:

On a true reading of s. 605(1)(a)
    of the
Code
, to determine whether a stay of proceedings is a judgment or
    verdict of acquittal, we must look to the substance of the action of the trial
    judge and not the label he used in disposing of the case. Substance and not
    form should govern. Whatever the words used, the judge intended to make a final
    order disposing of the charge against the respondent. If the order of the Court
    effectively brings the proceedings to a final conclusion in favour of an
    accused then I am of opinion that, irrespective of the terminology used, it is
    tantamount to a judgment or verdict of acquittal and therefore appealable by
    the Crown.

[32]

In
    this passage, the Court is simply reaffirming its conclusion that where a courts
    order brings a proceeding to a final conclusion in favour of an accused such as
    to give rise to the defence of
autrefois acquit
in a later proceeding,
    the order is an acquittal for the purposes of the Crowns right of appeal. By
    the same reasoning, the stay granted in this case is a dismissal for the
    purposes of the Crowns right of appeal, and the Crown may therefore appeal
    under s. 116(1)(b) of the
Act
.

[33]

In
    any event,
certiorari
would not have been available to the Crown. Generally
    speaking, it is only on the basis of jurisdictional error that superior courts
    issue prerogative writs in their supervisory role over courts of limited
    jurisdiction. Here, it is conceded that the justice of the peace had the
    jurisdiction to order a stay. Accepting for the purposes of this appeal that he
    issued the stay in error, this is an error of law that was within his
    jurisdiction. The prerogative writs would therefore not, as the respondent
    suggests, provide the Crown with a remedy in this case.

(iv)

The intention of
    the
Act

[34]

On
    a final note, I consider my interpretation of s. 116(1)(b) to be in keeping
    with the scheme and intention of the
Act
. Most provincial offence
    proceedings are commenced by the issuance of a ticket and can be relatively minor.
    In explaining the reason for adopting a provincial scheme to govern provincial
    offences, the Honourable R. Roy McMurtry, Q.C., then Attorney General for the
    Province of Ontario, described the purpose of the
Act
as follows:

the proposed Provincial Offences
    Act  creates a clear, self-contained procedural code to simplify procedures,
    eliminate technicalities, enhance procedural rights and protections, and remove
    the obstacle of delay from the assertion of rights and the conclusion of prosecutions:
Provincial Offences Procedure: An Analysis and Explanation of Legislative
    Proposals: the Provincial Offences Act, 1978 and the Provincial Courts
    Amendment Act, 1978
(Toronto: Ministry of the Attorney General, 1978), at
    p. 1.

[35]

As
    noted by the Crown, challenging the correctness of a judicial stay by way of an
    appeal rather than through an application in the Superior Court is simpler and
    more straightforward than via the prerogative writs. For an accused,
    particularly one who is self-represented, responding to an appeal is more
    readily understood than being required to respond to an application for
certiorari
and to follow the procedures of the Superior Court. The interpretation of the
    term dismissal I propose better achieves the intended purpose of the
Act
.

CONCLUSION

[36]

In
    conclusion, therefore, I would allow the appeal, set aside the provincial
    offences appeal court judges decision and remit the matter back to the Ontario
    Court of Justice to determine the merits of the Crowns appeal.

Paul Rouleau J.A.

I agree E.A. Cronk
    J.A.

I agree M. Tulloch
    J.A.

Released: March 11, 2014

[1]
Although not argued, I note that after
Jewitt
, a parallel amendment was
    made to s. 813 of the
Code
.


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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada, 1970,
    as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order;
    and

(b)  on
    application made by the complainant, the prosecutor or any such witness, 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).

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. D.L., 2014 ONCA 208

DATE: 20140319

DOCKET: C55640

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.L.

(Applicant/Appellant)

Richard Litkowski, for the appellant

Jennifer Mannen, for the respondent

Heard & released orally: March 12, 2014

On appeal from the conviction entered by Justice Christopher
    Corkery of the Superior Court of Justice, dated July 9, 2012.

ENDORSEMENT

[1]

This is an appeal from convictions for historical sexual assault and
    sexual interference.

[2]

The appellant submits that the trial judge erred in his approach with
    respect to contradictions between the complainant and her mother as to
    disclosure and second, that the trial judge failed to analyse and reconcile
    other inconsistencies in the complainants account. The third ground regarding the
    use of evidence of alleged prior discredible conduct was not pursued in oral
    argument.

[3]

The complainants mother testified that the complainant had disclosed
    one of the incidents of alleged abuse to her several years after it occurred
    and not long before the appellants arrest. The complainant denied that she had
    done so.

[4]

We do not agree that the trial judge erred in the way he dealt with this
    contradiction between the complainant and her mother.

[5]

He concluded that the contradiction did not compromise the complainants
    credibility or reliability, essentially for two reasons:

1)

If the disclosure did
    occur, it would be consistent with the incident of sexual assault having
    occurred; and

2)

The contradiction
    could readily be explained by the context, namely, a complainant who was
    reluctant to come forward and who had wished to put the entire matter behind
    her.

[6]

In our view, the first reason did not amount to using the complainants
    prior consistent statement to bolster her credibility: the trial judge was
    simply observing that there was no incentive for the complainant to falsely
    deny the disclosure as, if she did disclose, it would be consistent with her
    trial evidence. The second reason led the trial judge to conclude that the
    complainant may have suppressed the disclosure rather than lied about it.

[7]

Nor do we agree that the trial judge ignored or failed to give scrutiny to
    other inconsistencies. His reasons reveal that he was alive to those
    inconsistencies and that he did carefully scrutinize them. He properly
    considered those inconsistencies and viewed them in the light of the fact that
    these were historic allegations involving a young person who, as an adult, wanted
    to put the entire matter behind her.

[8]

We add that there was some independent evidence to corroborate the
    complainants story.

[9]

Accordingly, despite the very able argument of Mr. Litkowski, the appeal
    is dismissed.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

Paul
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Doodnaught, 2014 ONCA 172

DATE: 20140305

DOCKET: M43465 (C58376)

LaForme J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

George Doodnaught

Applicant/Appellant

Brian Greenspan and Jill Makepeace, for the
    applicant/appellant

Lisa Joyal and David Wright, for the respondent

Heard: February 26, 2014

ENDORSEMENT

H.S. LaForme J.A.:

BACKGROUND

[1]

Dr. George Doodnaught was an anesthesiologist at North York General
    Hospital.  On November 19, 2013, after a six-month trial before a judge
    sitting without a jury, he was convicted of sexually assaulting twenty-one
    female patients over a four-year period ending in February 2010.  His victims
    ranged in age from twenty-five to seventy-five.  The assaults were committed in
    operating rooms during surgery while the victims were in a state of
    semi-consciousness and unable to offer meaningful resistance.

[2]

The trial judge found that with
    eight of his victims, Dr. Doodnaught inserted his penis into their mouths after
    lowering his scrub pants.  He used five other victims for acts of masturbation;
    six others had their breasts squeezed, pinched, or fondled, and some of them
    were kissed in an aggressive sexual manner.  Two other victims were kissed on
    the lips in a sexual manner.

[3]

The trial judge further found that
    over the four year period of his assaults, Dr. Doodnaught became emboldened,
    and the frequency of his crimes escalated: fifteen of the twenty-one assaults
    were committed in the last six months; and, in the ten days before his arrest,
    he assaulted at least four patients, with three of the assaults involving
    forced fellatio.

[4]

On February 25, 2014, Dr. Doodnaught was sentenced to a total of ten
    years imprisonment, which he has commenced serving.  He applies to this court
    for judicial interim release until his appeal against conviction is heard.

[5]

Dr. Doodnaught is a 65-year-old first time offender.  He is married and
    the father of five children; three adult males from previous marriages and two
    from his current marriage who are 8 and 9 years of age.  He practiced as an
    anesthetist at Toronto General Hospital from October 1979 until June 1982.  He
    carried on the same practice at North York General Hospital from 1982 until his
    initial arrest for these offences on March 10, 2010.  He was arrested again on
    September 30, 2010 on further charges related to these offences. He has been
    unemployed since his initial arrest.

[6]

Upon both of his arrests, Dr. Doodnaught was released the same day.
    Over the four year period from his arrest through his trial, Dr. Doodnaught
    abided by all the terms of his release, including attending court as required.

[7]

Dr. Doodnaught, in his notice of appeal, claims that the trial judge
    committed some 100 errors in his conduct of the trial and ultimate decision.
    Virtually all the grounds challenge the correctness of finding of facts by the
    trial judge.

[8]

On the whole, Dr. Doodnaught argues that the trial judge engaged in
    conclusion driven reasoning in which he ignored or rejected evidence
    inconsistent with guilt and made findings of fact consistent with guilt which
    were not supported by evidence.  More specifically, he argues that the trial
    judge variously misapprehended, improperly weighed, ignored, misapplied and
    misinterpreted much of the evidence.

THE TEST

[9]

Under s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46, Dr.
    Doodnaught must satisfy me that:

1.    his appeal is not frivolous;

2.    he will
    surrender into custody in accordance with the terms of the release order; and

3.    his
    detention is not necessary in the public interest.

[10]

The
    Crown accepts that some of the grounds of appeal satisfy the very low threshold
    of not being frivolous in that they are arguable.  It also accepts that he will
    surrender into custody in light of his history of release pending his trial.
    The Crown does, however, oppose his application on the basis of the third component,
    asserting that it is not in the public interest to release him.

ANALYSIS

(1)

The appeal is not frivolous

[11]

An
    appeal is not frivolous if the proposed grounds raise arguable issues.  Dr.
    Doodnaught does not have to satisfy me that such ground has a likelihood of
    success on appeal; rather, he is only required to satisfy me that there is a
    viable ground of appeal that would warrant appellate intervention if
    established:
R. v. Manasseri
, 2013 ONCA 647, at para. 38.

[12]

The
    detailed notice of appeal and the Crowns position on this application satisfy
    me that the appeal is not frivolous in that it raises arguable issues.

(2)

He will surrender into custody

[13]

Dr.
    Doodnaughts history while on release pending his trial indicates that he is
    not a flight risk.  As I noted above, he was initially released on the same day
    as his arrest in March 2010, and again in September 2010, until his trial and
    conviction on November 19, 2013.  On several occasions during this period
    variations on the conditions of his release were granted.  Throughout this
    entire period Dr. Doodnaught fully complied with his release terms and attended
    court whenever required.

[14]

Once
    again, this history and the position taken by the Crown satisfy me that Dr.
    Doodnaught would surrender into custody in accordance with the terms of any
    release order.

(3)

Detention is not necessary in the public interest

[15]

The
    public interest component is about the public perception of the reputation of
    the administration of justice.  This is based on the view of a public that is
    reasonably informed of the criminal process and the circumstances of the case.
    It requires that I assess the need to review the conviction leading to
    imprisonment on the one hand, and the need to respect the general rule of
    immediate enforceability of judgments on the other:
Manasseri
, at
    paras. 40-43.  This is commonly referred to in the jurisprudence as
    reviewability versus enforcement.

[16]

Public
    confidence in the administration of justice requires that judgments be
    enforced, and ordinarily requires that a person convicted of a very serious
    offence, who advances grounds of appeal that are arguable but weak, be denied
    release pending appeal.  However, public confidence in the administration of
    justice also requires that judgments be reviewed and that any errors be
    corrected, especially where an appellants liberty is at stake  in these
    circumstances justice usually requires release from custody pending the review:
R. v. Farinacci

(1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp.
    47-48.

[17]

Release
    may be especially appropriate where the hearing of the appeal "will be so
    long delayed and the probability of the success in the appeal so strong that it
    will be contrary to the public interest to refuse a release and
a fortiori
an applicant's detention would not be necessary in the public interest":
R.
    v. Baltovich

(2000), 144 C.C.C. (3d) 233 (Ont. C.A.), at para. 41,
    quoting
R. v. Baltovich
(1992), 10 O.R. (3d) 737 at 740.

[18]

The
    public interest component assumes greater prominence in cases in which the
    applicant has been convicted of a very serious offence and faces the prospect
    of a lengthy period of incarceration:
Baltovich
(2000), at para. 19.
    This is such a case.

[19]

I will begin with a
    comment on the 49 letters Dr. Doodnaught filed from persons in the community
    which indicate their support for him and their belief in his innocence.  These
    letters were also filed with the trial judge and are entitled to some weight.
    However, this represents a very small segment of the public.  These opinions
    should be accorded little weight given that a contrary opinion is no doubt held
    by the 21 victims and their families and associates.  The letters thus do not
    assist very much in gauging the public interest in this case.

[20]

The
    trial of Dr. Doodnaught spanned some six months and resulted in 10,000 pages of
    transcript.  There are 21 victims who each complained about Dr. Doodnaught
    independently and without knowing any of the other complainants, or their
    experiences with Dr. Doodnaught.  The very experienced trial judge provided
    extensive reasons for his decision that covered 84 single-spaced pages and
    consisted of 855 paragraphs.  The trial judge concludes his reasons for
    convicting Dr. Doodnaught by saying [t]he evidence supporting guilt is
    overwhelming.

[21]

My
    review of the trial judges reasons leaves me with the strong impression that
    he considered all the evidence carefully and that he was very much alive to the
    defence theories advanced and the evidence in respect of those theories.
    Moreover, from the reasons alone I am not able to assess the merits of Dr.
    Doodnaughts claim that the trial judge engaged in conclusion driven reasoning
    by ignoring or rejecting evidence inconsistent with guilt and that he made
    findings of fact consistent with guilt which were not supported by evidence.
    The trial judges reasons, without anything more, certainly do not convey that.

[22]

As
    I said, virtually all the grounds of appeal advanced by Dr. Doodnaught
    challenge the correctness of the findings of fact by the trial judge.  Such
    grounds of appeal pose an uphill battle for success on any appeal given the
    high degree of deference owed to trial judges by appellate courts in respect of
    their findings of fact.  Here, Dr. Doodnaughts claims of misapprehension,
    misapplication and ignorance of evidence by the trial judge are not viable for
    me to assess as to their strength because the transcripts of the trial are not
    yet available, and apparently will not be available until the end of May 2014.

[23]

It
    follows that on this record I cannot reach any final conclusion on the strength
    of the grounds of appeal.  Suffice it to say - and without more - that while I
    find some of the grounds to be arguable, none leave me with a very strong
    opinion in favour of the applicants chances of success on appeal.  Because of
    this, the fact that perfection of the appeal may be 16 to 18 months away, as
    counsel contends, is of little impact.

CONCLUSION

[24]

Dr.
    Doodnaughts offences, described above, are very serious. From my assessment
    based on the record before me, his grounds of appeal are weak and not likely to
    succeed, although some may be arguable.  In cases like this, the need for
    immediate enforcement of the judgment outweighs the need to review the
    decision. Release, therefore, would not be in the public interest.

[25]

The
    application for release pending appeal must be dismissed.

H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Francois, 2014 ONCA 234

DATE:  20140327

DOCKET: C55431

Doherty, Laskin and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aaron Nathan Francois

Appellant

Paul J.I. Alexander, for the appellant

Greg Skerkowski, for the respondent

Heard: March 20, 2014

On appeal from the convictions entered by Justice Kelly
    of the Superior Court of Justice at Toronto on July 15, 2011.

ENDORSEMENT

[1]

The appellant was convicted of several offences, including possession of
    a loaded prohibited weapon.  All of the charges arose out of the same
    incident.  The appellant has completed his sentence and appeals conviction
    only.  He raises three grounds of appeal.

(1)

Was the Cross-Examination of the Appellant on a Draft Affidavit
    Improper?

[2]

The appellant brought a
Charter
motion at trial.  His counsel had
    provided the Crown with a draft unsigned affidavit of the appellant in
    support of the application.  On the day of the trial, counsel gave the Crown an
    affidavit signed by the appellant.  There were several differences between the
    contents of the two affidavits.

[3]

At the appellants first trial, his lawyer asked him about the differences
    in the two affidavits with a view to establishing that the appellant was the
    person who had directed that the changes be made.  In cross-examination, Crown
    counsel questioned the appellant at some length about the differences in the
    two affidavits.  Eventually, a mistrial was declared for reasons that are
    unrelated to this issue.

[4]

At the appellants second trial, this time over the objection of defence
    counsel, Crown counsel cross-examined the appellant about the differences in
    the two affidavits.  He also cross-examined the appellant about the testimony
    he had given at his first trial about those differences in an effort to show
    that his testimony at the first trial was inconsistent with his evidence at the
    second trial.

[5]

Ultimately, only one area of the cross-examination had any relevance to
    the outcome of the second trial.  The appellant testified in cross-examination that
    one answer he had given at his first trial was in fact a lie and that he had
    told the lie to protect his lawyer at the first trial.  In her reasons for
    judgment, the trial judge made reference to that answer:

What is clear from this inconsistency is that Mr. Francois was
    willing to lie under oath to protect his lawyer.  One only wonders what he
    would do or say to protect himself.

[6]

This is not a case for any general pronouncement about the propriety of
    cross-examining an accused on a draft version of his affidavit.  Having regard
    to the entirety of the circumstances, we are satisfied that the
    cross-examination as it related to the single question that figured in the
    trial judges credibility assessment, was neither unfair nor inappropriate.
    The appellant was asked to explain two quite different answers, both given
    under oath, to the same question.  Unfortunately, but not unfairly, for him,
    his answer shed considerable light on his trustworthiness as a witness.  The
    trial judge properly took that answer into account.

(2)

The Reasons for Judgment

[7]

Counsel advances three arguments arising out of the trial judges
    reasons for judgment.  He contends that she failed to consider the third branch
    of
R. v.

W.D.
, reversed the burden of proof, and exposed the
    defence evidence to a higher degree of scrutiny than the Crowns evidence.
    Nothing in the reasons supports these contentions.

[8]

The trial judge began her analysis with a specific reference to
R.
    v. W.D.
That reference included a specific articulation of the so called
    third branch of that test, which requires that the trier of fact consider all
    of the evidence to determine whether the Crown has proved the case against the
    accused beyond a reasonable doubt.

[9]

Having set the stage for her consideration of the evidence by laying out
    the applicable principles from
R. v. W.D.
, the trial judge addressed the
    evidence by reference to several specific factual issues that arose in the evidence.
    In doing so, she thoroughly reviewed the evidence, clearly appreciated where
    the defence and Crown evidence conflicted and, gave various reasons for accepting
    the Crown evidence in relation to those factual issues.

[10]

For
    example, in accepting the victims evidence about the events that transpired during
    the physical encounter with the appellant, the trial judge relied on the
    partial recording of that encounter that was played at trial.  She described the
    contents of that recording as chilling and fully supportive of the victims
    description of the relevant events and inconsistent with the appellants
    description.  Similarly, the trial judge considered the inconsistencies in the
    evidence of the various police officers who described the melee that occurred
    when the police arrived on the scene and attempted to arrest of the appellant.
    The trial judge fully appreciated those inconsistencies, but explained, in some
    detail, why those inconsistencies did not undermine the credibility of the
    witnesses.

[11]

Finally,
    we see nothing in the reasons to suggest an uneven scrutiny of the evidence.
    The reality is that several parts of the appellants evidence were, on their
    face, incredible.  It hardly took any unwarranted degree of scrutiny to reject
    that evidence.  This argument fails.

(3)

The
Mens Rea
Required for the Offence of Possession of a
    Prohibited Loaded Firearm

[12]

The
    offence created by s. 95 requires proof that the person in possession of the
    firearm knew that it was loaded or was wilfully blind to that fact.  The trial
    judge did not refer to the
mens rea
component of the offence in her
    reasons for judgment.

[13]

There
    are two issues raised by this ground of appeal.  First, was there a basis upon
    which a reasonable trier of fact could conclude that the appellant had the
    requisite
mens rea
and, second, is the failure to specifically address
    that issue in the reasons fatal to the conviction?

[14]

We
    are satisfied that there was a basis upon which the judge could conclude that
    the appellant knew or was wilfully blind to the fact that the gun was loaded.
    The appellant had possession of the gun in the context of carrying out his drug
    trafficking activities.  He had gone to a stolen vehicle in the middle of the
    night, apparently to retrieve a considerable amount of cash.  The appellant pointed
    the gun at the victim and threatened to kill him.  While the trial judge was
    not satisfied that the Crown had proved an intention to kill, she did find that
    the appellant intended to threaten the victim.

[15]

A
    trier of fact could reasonably conclude that it is more likely that a drug
    dealer going to collect a considerable amount of cash in the dead of night
    would arm himself with a loaded gun, and that it is more likely that the same person
    would threaten to kill another person with a gun that was loaded rather than a
    gun that was incapable of doing the harm threatened.  There was an evidentiary
    basis from which a trial judge could find the requisite
mens rea
(knowledge or wilful blindness).

[16]

It
    would have been preferable had the trial judge specifically addressed the
mens
    rea
issue.  Her failure to do so may be explained by the absence of any evidence
    from anybody directed specifically at the
mens rea
issue and the
    absence of any argument by either counsel on that issue.

[17]

The
    trial judge is presumed to know the law.  Her failure to expressly refer to the
mens rea
issue does not, in these circumstances, justify the
    conclusion that she failed to consider it.  We see no reason to think that the
    trial judge was not satisfied that the Crown had proved that the appellant knew
    the gun was loaded or was wilfully blind to that fact.

(4)

Conclusion

[18]

The
    appeal is dismissed.

Doherty J.A.

John Laskin J.A.

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Guo, 2014 ONCA 206

DATE: 20140320

DOCKET: C51088

Feldman, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yan Jun Guo

Appellant

Yan Jun Guo, appearing in person

Vincent Rondinelli, Duty Counsel

Greg Skerkowski, for the respondent

Heard: January 14, 2014 and adjourned for written submissions

On appeal from the conviction entered on June 24, 2009 by
    Justice Gregory A. Campbell of the Ontario Court of Justice

ENDORSEMENT

[1]

The appellant was convicted of keeping a common bawdy house and being an
    inmate of a common bawdy house in 2009. She has served her sentence. The
    appellants in-person appeal has been adjourned a number of times in order to
    await the decisions of the Court of Appeal and the Supreme Court of Canada in
R.
    v. Bedford
[2013] S.C.J. No. 72.

[2]

On December 10, 2013, the Supreme Court of Canada found that the
    sections of the
Criminal Code
which make it an offence to keep a
    common bawdy house and to be an inmate therein are unconstitutional. The
    Supreme Court suspended the declaration of invalidity for one year in order to
    give Parliament time to enact a new law, if it chose to do so.

[3]

Because of the suspension of the declaration of invalidity, it is agreed
    that in order to address the appellants appeal on the basis that the sections
    are unconstitutional, the appeal must be adjourned until the declaration of
    invalidity takes effect. The appeal is therefore adjourned to the next in
    person appeal hearing date where duty counsel will be present following
    December 10, 2014, which is January 12, 2015.

K. Feldman J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ibrahim, 2014 ONCA 229

DATE: 20140325

DOCKET: M43363 (C54017)

Doherty, Laskin and Feldman JJ.A.

Her Majesty the Queen

Respondent

and

Maher Ibrahim

Appellant

Diane Condo, for the appellant

Gavin MacDonald, for the respondent

Heard:  March 20, 2014

ENDORSEMENT

[1]

This motion, brought pursuant to s. 683(1)(b), seeks an order compelling
    the complainant to attend for cross-examination in support of the appellants
    fresh evidence application.  The proposed fresh evidence consists of the
    affidavit of the appellants daughter, cross-examination of the daughter on
    that affidavit and certain phone records referable to the complainant.  In her
    affidavit, the daughter summarized conversations she allegedly had with the
    complainant in 2012, long after the trial.  The daughters cross-examination
    related to those conversations. The daughters affidavit and her
    cross-examination allege that the complainant lied at trial.

[2]

Crown counsel takes the position that the purported cross-examination
    does not relate to facts material to the conviction and further advised the
    court that that he had chosen not to ask the complainant for a responding affidavit.
    Consequently, the appellant brings this motion for an order permitting
    cross-examination of the complainant.

[3]

Counsel for the appellant submits that the affidavit and
    cross-examination, taken together, provide an evidentiary basis for the
    allegation that the complainant lied at trial on matters that were germane to
    her credibility.  Counsel further argues that it is in the interests of justice
    that she be allowed to pursue that allegation through cross-examination of the
    complainant.

[4]

As pointed out in
R. v. Sihota
, 2009 ONCA 770, the interests of
    justice require a consideration of the obvious interests of the appellant, but
    also the interests of the witness who is sought to be cross-examined.  The interests
    of the witness are particularly significant when the witness is a complainant
    who has already testified at some length at a trial that occurred many years
    ago.

[5]

We are satisfied that on a reading of the affidavit and the
    cross-examination, the proposed fresh evidence goes no further than statements by
    the complainant to the daughter that the complainant had learned that her
    husband had lied to her about the alleged extramarital affair and that she no
    longer believed, as she had at trial, that there had been no affair.  Further, the
    complainant advised the daughter that she would not lie about the affair in
    the future.  The fresh evidence suggests not that the complainant lied in her
    evidence at trial, but rather that she had been deceived by her husband about
    the affair and, having learned the truth, would no longer say that there had not
    been an affair.

[6]

The statements allegedly made by the complainant to the daughter as clarified
    in the cross-examination do not provide a basis upon which the complainants
    credibility could be successfully challenged on a fresh evidence application on
    appeal.  As the fresh evidence stands, there is no reasonable possibility that it
    could undermine the complainants credibility on the portions of her trial
    testimony that are material to the harassment allegations.  Cross-examination
    of the complainant is not in the interests of justice.

[7]

If the appellant pursues a fresh evidence application, it will be for
    the panel hearing the appeal to decide the ultimate admissibility of the
    evidence.  That panel is, of course, not bound by the assessment made on this
    motion.  The appellant is also entitled to rely on the absence of any response
    by the complainant to the allegations in support of its motion.  The significance
    of the absence of that response is, of course, also for the panel.

[8]

Insofar as the proposed cross-examination would relate to the
    information in the phone records, we see nothing in those records that would
    call the complainants credibility into question in a manner that could
    reasonably be expected to have affected the verdict.  Furthermore, this line of
    inquiry could have been pursued at trial.

[9]

In the result, we are satisfied that the motion should be dismissed.
    This appeal should be listed immediately.  Counsel have advised that they have
    agreed on April 28, 2014 for the hearing of the appeal.

Doherty J.A.

John Laskin J.A.

K. Feldman 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), (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 complainant 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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(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 complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, 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).

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. K. E., 2014 ONCA 186

DATE: 20140310

DOCKET: C56120

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. E.

Appellant

H. John Kalina, for the appellant

Roger Shallow, for the respondent

Heard and released orally: March 7, 2014

On appeal from the convictions entered on May 20, 2012 and
    the sentence imposed on October 16, 2012 by Justice J. Fragomeni of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

Following a trial by judge and jury, the appellant was convicted of
    assault, sexual assault and uttering death threats against his girlfriend.  He
    was sentenced to four years imprisonment.  He appeals from his convictions and
    seeks leave to appeal against sentence.

A.      Conviction Appeal

[2]

The appellants sole ground of appeal on his conviction appeal is a
    claim of ineffective assistance of counsel.  He contends that his counsel
    failed to follow his instructions to oppose the admission at trial of the complainants
    evidence at the preliminary inquiry and that, but for his counsels ineffective
    assistance in this regard, the evidence in question would not have been
    admitted because the appellant was denied the opportunity to cross-examine the
    complainant at the preliminary inquiry.

[3]

In our view, the conviction appeal must be dismissed.

[4]

The date of the preliminary inquiry was advanced when it was learned
    that the complainant was suffering from a terminal illness and was not expected
    to survive for very long.  In the result, the complainant did testify at the
    preliminary inquiry.  The record establishes that the court appointed counsel
    for the appellant in respect of the preliminary inquiry, for the purpose of
    cross-examining the complainant.  The preliminary inquiry judge offered to
    adjourn the inquiry to permit the appellants appointed counsel or the
    appellant himself, presumably alone or with the assistance of other counsel, to
    prepare for the cross-examination of the complainant.  At that time, it was made
    it clear to the appellant that he would not likely have another opportunity to
    cross-examine the complainant.  However, the appellant objected to the counsel
    appointed by the court and stated that he did not wish any cross-examination.

[5]

By the time of trial, the complainant had died.    It was anticipated
    that the Crown would seek the admission at trial of her preliminary inquiry
    evidence under s. 715(1) of the
Criminal Code
.

[6]

The appellant claims that he instructed his trial counsel to oppose the
    admission of the complainants inquiry evidence on the ground that he did not
    have full opportunity to cross-examine the complainant at the preliminary
    inquiry and that his trial counsel refused to follow his instructions.  The
    resulting admission of the complainants evidence at trial, the appellant says,
    arose from the ineffective assistance of his counsel and resulted in a
    miscarriage of justice.

[7]

The record before this court belies these claims.  First, as we have
    said, the appellant was afforded an opportunity to cross-examine the
    complainant at the preliminary inquiry and declined that opportunity.  Second,
    the appellants trial counsel stated in his sworn affidavit that he advised the
    appellant to concede the admissibility of the complainants inquiry evidence at
    trial, because, in his view, the evidence would be admitted under s. 715(1) of
    the
Criminal Code
, and the appellant accepted his advice.
    Importantly, the appellant himself admitted on cross-examination on his
    affidavit that in the end [he] agreed with his counsel and conceded to his
    counsels advice.

[8]

The test for establishing an ineffective assistance of counsel claim is
    an exacting one.  On the facts of this case, simply put, there is no foundation
    for the appellants ineffective assistance claim.  It is entirely contradicted
    by the record.  The complainants inquiry evidence was clearly both necessary
    and reliable evidence.  It was therefore admissible at trial under s. 715(1) of
    the
Criminal Code
since the appellant had not been denied the
    opportunity to cross-examine the complainant.  Further, the appellant accepted
    his trial counsels advice not to oppose the admission of the complainants
    evidence at trial.

[9]

The appellant cannot now be heard to complain about a situation of his
    own making.  Certainly, on the record before us, there is no basis for
    criticism of his trial counsels performance in the manner asserted by the
    appellant.  Nor is there any merit to his claim that the events described above
    led to a miscarriage of justice.

[10]

The
    conviction appeal is therefore dismissed.

B.      Sentence Appeal

[11]

We
    also see no merit to the appellants sentence appeal.

[12]

The
    appellant does not assert that the sentence imposed is outside the appropriate
    range for his offences.  The single error alleged by him is that the sentencing
    judge failed to consider the appellants prospects for rehabilitation and
    relied solely on the principles of denunciation and deterrence when fashioning
    a fit sentence.

[13]

We
    disagree.  Once again, the record does not support this claim.

[14]

The
    pre-sentence report filed at the appellants sentencing hearing, which was
    considered by the sentencing judge, indicated that: (1) the appellant did not
    express any remorse and did not admit his guilt for any of the offences of
    which he was convicted; (2) to the contrary, the appellant expressed shock that
    he was found guilty and took no responsibility for his actions.  Moreover,
    after interviewing the appellant, the author of the pre-sentence report learned
    that the appellant had a prior conviction in the United States for sexual
    battery which led to his deportation to Canada.

[15]

In
    light of these considerations, we agree with the Crown that rehabilitation
    could not have played any significant role at the appellants sentencing
    hearing.

[16]

The
    sentencing judge expressly considered the applicable sentencing principles set
    out in the
Criminal Code
, including the principle of rehabilitation,
    as well as the circumstances of the offences and of the offender at the time of
    sentencing.  As we have said, he also took account of the contents of the
    pre-sentence report, in addition to various letters filed on behalf of the
    appellant.  We see no basis for any suggestion that the sentencing judge
    overemphasized deterrence and denunciation on the facts of this serious case.

[17]

The
    sentencing judges reasons reflect no error in principle and the sentence
    imposed was fit.  Leave to appeal sentence is therefore granted and the
    sentence appeal is dismissed.

E.A. Cronk
    J.A.

Gloria Epstein
    J.A.

M.L. Benotto J.A.