COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Solleveld, 2014 ONCA 418

DATE: 20140522

DOCKET: C55023, C55024 & C54972

Sharpe, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Solleveld, Desiree Solleveld and Robert
    Cranston

Appellants

Robert Solleveld, Desiree Solleveld, and Robert
    Cranston, acting in person, assisted by Michael Dineen and Matthew Gourlay,
    duty counsel

Christine Tier, for the respondent

Heard: March 11 and 13, 2014

On appeal from the convictions entered on September 29,
    2011 and the sentence imposed on January 27 and 30, 2012 by Justice Alan C.R.
    Whitten of the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellants were convicted of fraud (Robert and Desiree Solleveld two
    counts; Robert Cranston one count) and conspiracy to commit fraud (Robert
    Solleveld and Robert Cranston) and sentenced as follows; Robert Solleveld  six
    years concurrent on each count; Desiree Solleveld  three years concurrent on
    each count; Robert Cranston  two years concurrent on each count. Restitution
    orders were also made.

[2]

Cranston abandoned his conviction appeal and has served his sentence.
    However, as the issues raised on his conviction appeal overlap with those
    raised by the Sollevelds, the Crown asked that his conviction appeal not be
    dismissed as abandoned.

[3]

The appellants were found guilty of running a high yield investment scam
    which attracted several millions of dollars from a large number of investors
    or joint venture partners (JVPs).

[4]

The Sollevelds solicited $7,637,041.17 from JVPs using an entity called
    Club TCSI. They used a document describing a high yield investment scheme
    purportedly backed by the U.S. Federal Reserve, the International Monetary Fund
    and the World Bank. They cited investment returns of 10% per month or more.
    Forensic accounting evidence indicated that no investment income was earned and
    that less than 10% of the money was returned to investors. Most of the money
    invested was depleted to cover corporate and personal expenses.

[5]

Cranston recruited investors through his company Island Holdings using
    similar documentation. He collected some $700,000 which he transferred to TCSI
    accounts.

[6]

The Sollevelds and Cranston were self-represented at trial and on this
    appeal although before this court they were ably assisted by duty counsel.

Issues

[7]

While Robert and Desiree Solleveld filed lengthy written submissions, in
    oral argument and with the assistance of duty counsel, the issues that we need
    to address were narrowed as follows:

1.

Did the trial
    judge err in admitting certain opinion evidence?

2.

Did the trial
    judge err in his instructions to the jury relating to conspiracy?

3.

Did the trial
    judge err by giving a confusing jury charge that failed to distinguish between
    the Sollevelds and Cranston?

4.

Did the trial
    judge err in admitting evidence from the preliminary inquiry pursuant to s. 715(1)(a)
    of the
Criminal Code
?

5.

Did the trial
    judge err as to the sentence he imposed?

1. Did the trial judge err in admitting certain opinion
    evidence?

[8]

The Crown led evidence from James Byrne, a law professor who was
    qualified as an expert in international banking practices and high yield
    investment fraud. Professor Byrne testified as to normal banking practices and
    he described the hallmarks or common elements typically found in high yield
    frauds. These included the promise of unrealistically high returns, the
    insistence on the need for secrecy, the exploitation of religious or cultural affiliation;
    and the lack of a clear and professional approach to trading and investing. He
    examined the documents and methods used by the appellants to attract investors
    in their scheme and testified that those documents were similar to and bore the
    hallmarks of a high yield investment fraud.

[9]

For example, the appellants scheme purported to involve trading in
    letters of credit. Professor Byrne testified that such trades were spoken of [o]nly
    in the world in commercial fraud. There is no such thing in the real world.
    Similarly, with respect to secret or obscure markets he stated: [t]hese are
    typical allegations in the world of, of high yield frauds and other commercial
    frauds that theres some secret hidden. He explained that by definition
    markets cannot be secret or hidden. When shown a confidentiality,
    non-disclosure, non‑circumvention agreement used by the appellants he
    testified: this is a document which Ive seen in one form or another in
    virtually all of the high yield investment scams that Ive studied. One of the
    documents used by the appellants spoke of returns of 12.5% per month. Byrne
    described that as preposterous and just simply beyond the realm of anything
    normal. He testified that describing high yield investments as federally approved
    was very common and a clear indicator that this is an instance of high yield
    scam. He testified that several other documents and terms used by the
    appellants were typical of high yield investment scams or frauds.

[10]

Mr.
    Dineen submits that to the extent Byrne testified that the documents and
    methods used by the appellants were typical of those used by fraudsters and
    indicated a fraudulent intent, it should not have been admitted.

[11]

First,
    it is submitted that such evidence amounts to profiling and second, such
    evidence usurps the role of the jury to determine whether the appellants had
    the requisite intent for the offence of fraud.

[12]

Reliance
    is placed on
R. v. Sekhon
, 2014 SCC 15, at para. 46:

Given the concerns about the impact expert evidence can have on
    a trial  including the possibility that experts may usurp the role of the
    trier of fact  trial judges must be vigilant in monitoring and enforcing the
    proper scope of expert evidence.  While these concerns are perhaps more
    pronounced in jury trials, all trial judges  including those in judge-alone
    trials  have an ongoing duty to ensure that expert evidence remains within its
    proper scope.  It is not enough to simply consider the
Mohan
criteria at the outset of the experts testimony and make an initial ruling as
    to the admissibility of the evidence.  The trial judge must do his or her
    best to ensure that, throughout the experts testimony, the testimony remains
    within the proper boundaries of expert evidence.  As noted by Doherty J.A.
    in
R. v. Abbey
,
2009 ONCA 624 (CanLII)
,
    2009 ONCA 624, 97 O.R. (3d) 330, at para. 62:

The admissibility inquiry is not conducted in a
    vacuum.  Before deciding admissibility, a trial judge must determine the
    nature and scope of the proposed expert evidence.  In doing so, the trial
    judge sets not only the boundaries of the proposed expert evidence but also, if
    necessary, the language in which the experts opinion may be proffered so as to
    minimize any potential harm to the trial process.
A
    cautious delineation of the scope of the proposed expert evidence and strict
    adherence to those boundaries, if the evidence is admitted, are essential.
The case law demonstrates that overreaching by expert witnesses is probably the
    most common fault leading to reversals on appeal.  [Emphasis added and
    citations omitted by S.C.C.]

[13]

Sekhon
involved the evidence of a police officer who testified that he had never
    encountered a drug courier who was blind to the fact that he or she was
    carrying drugs. This was held to be inadmissible evidence, at para 49:

The fact that [the police officer] did not personally encounter
    a blind courier over the course of his investigations is neither relevant nor
    necessary, within the meaning ascribed to those terms by this Court in
Mohan
,
    to the issue facing the trial judge  namely, whether Mr. Sekhon himself had
    knowledge of the drugs.  The Impugned Testimony, though perhaps logically
    relevant, was not legally relevant because the guilt or innocence of accused
    persons that [the police officer] had encountered in the past is legally
    irrelevant to the guilt or innocence of Mr. Sekhon (see
Mohan
, at pp.
    20-21).  In other words, the Impugned Testimony was of no probative value
    in determining whether
Mr. Sekhon
knew about the cocaine in the hidden
    compartment.  It is trite to say that a fundamental tenet of our criminal
    justice system is that the guilt of an accused cannot be determined by
    reference to the guilt of other, unrelated accused persons.  Moreover, the
    Impugned Testimony was not necessary because determining whether Mr. Sekhon
    knew about the drugs is not beyond the knowledge and experience of the judge,
    and it is certainly not a matter that is technical or scientific in nature. [Emphasis
    in original.]

[14]

In
    our view, Professor Byrnes evidence does not amount to the kind of profiling
    evidence precluded by
Sekhon
.

[15]

The
    admission of Byrnes evidence met the four criteria set out in
R. v. Mohan
,
    [1994] 2 S.C.R. 9: i) relevance, ii) necessity in assisting the trier of fact,
    iii) the absence of any exclusionary rule, and iv) a properly qualified expert.
    The appellants do not challenge the qualification of Professor Byrne, nor are
    there any applicable exclusionary rules. The evidence as to the nature and
    character of the methods and documents used by the appellants was plainly
    relevant to the issue of whether or not their investment scheme was a
    fraudulent scam. In our view, the evidence was also necessary given the
    inherent complexity of international banking and the esoteric nature of
    documents used by the appellants to attract investors. International banking
    practices and purportedly sophisticated and obscure investments of the kind
    used by the appellants are not matters within the knowledge and experience of
    the ordinary juror. Professor Byrne had specialist knowledge that could assist
    the trier of fact in understanding the obscure terminology and jargon of the
    financial world.

[16]

Professor
    Byrnes analysis of the document and methods used by the appellants did not, as
    in
Sekhon,
depend for its relevance on the guilt or innocence of
    accused persons that [the witness] had encountered in the past but rather upon
    Byrnes expert knowledge of international banking and the types of documents
    that are properly and improperly used in that highly specialized sphere of
    activity.

[17]

Nor,
    in our view, should the impugned evidence have been excluded because it tread
    near the ultimate issue for the jury.

[18]

The
    Supreme Court of Canada has repeatedly affirmed that the common law rule
    precluding expert evidence on the ultimate issue no longer applies in Canada:
R.
    v. Burns
, [1994] 1 S.C.R. 656, at para. 25:

While care must be taken to ensure that the judge or jury, and
    not the expert, makes the final decisions on all issues in the case, it has
    long been accepted that expert evidence on matters of fact should not be
    excluded simply because it suggests answers to issues which are at the core of the
    dispute before the court:
Graat v. The Queen
, [1982] 2 S.C.R. 819. See
    also
Khan v. College of Physicians and Surgeons of Ontario
(1992), 9
    O.R. (3d) 641 (C.A.), at p. 666 (per Doherty J.A).

See also
R. v. Bryan
(2003)
,
175
    C.C.C. (3d) 285, at para. 16: there is now no general rule precluding expert
    evidence on the ultimate issue.

[19]

It
    was appropriate for the Crown to lead generic evidence as to legitimate and
    illegitimate international banking practices and documents. As Goudge J.A.
    observed in
Bryan
, at para. 19, (dealing with evidence about the
    indicia of possession of cocaine for the purpose of trafficking) where generic
    evidence is necessary to assist the jury, it is hard to resist the same
    conclusion when that evidence is brought down to the specifics of this case.

[20]

Mohan
holds, at paras. 24-25, that increased scrutiny of relevance and necessity are
    called for the closer one comes to the ultimate issue. In our view, the
    impugned evidence survives that increased level of scrutiny.

[21]

Professor
    Byrnes evidence was highly probative of the issue the jury had to decide. Appropriate
    steps were taken to ensure that he did not usurp the function of the jury as
    the ultimate fact finder.

[22]

Professor
    Byrne explicitly testified that he could only comment on the characteristics of
    the documentation used and that he had no direct knowledge of whether any fraud
    had actually been committed. When Byrne was testifying, the trial judge told
    the jury:

Its been very interesting to hear these comments but they are
    in a sense observations by this gentleman from a fairly specialized position.
    That doesnt necessarily mean that the three people before you have committed
    such a crime. All right? These are if anything, I guess specialized
    generalizations

[23]

In
    his jury charge, the trial judge gave a similar instruction: The professor
    emphasized that he could not venture an opinion in this case aside from the
    nature of the documentation he reviewed The jury was also instructed that
    they were not required to accept the opinions of expert witnesses and cautioned
    that how much or little you believe or rely upon the experts opinion is
    entirely up to you.

[24]

We
    see no error in the admission or the treatment of the expert evidence.
    Accordingly, we would not give effect to this ground of appeal.

2. Did the trial judge err in his instructions to the jury
    relating to conspiracy?

[25]

While
    she did not concede the point, in her very fair and able argument, Ms. Tier
    acknowledged that Mr. Gourlay had raised serious and significant issues as to the
    trial judges instructions to the jury on conspiracy.

[26]

There
    are two related problems with the trial judges conspiracy instructions.

[27]

First,
    at various points, trial judge instructed the jury that, as between Robert
    Solleveld and Cranston, conspiracy was an all or nothing proposition  they
    were either both guilty or both not guilty. This is wrong as a matter of law:
    see
R. v. Bogiatzis,
2010 ONCA 902, 285 C.C.C. (3d) 437, at para 25.

[28]

The
    all or nothing proposition becomes particularly problematic when combined
    with the trial judges second error. The trial judges
R. v. Carter
[1982]
    1 S.C.R. 938 instruction was confusing and failed to distinguish adequately
    between the second and third stages of the inquiry mandated by
Carter
.
Carter
holds, at p. 947, that the trial judge should instruct the jury:

[1] to consider whether on all the evidence they are satisfied
    beyond a reasonable doubt that the conspiracy charged in the indictment
    existed. If they are not satisfied, then the accused charged with participation
    in the conspiracy must be acquitted. [2] If, however, they conclude that a
    conspiracy as alleged did exist, they must then review the evidence and decide
    whether, on the basis of the evidence directly receivable against the accused,
    a probability is raised that he was a member of the conspiracy. [3] If this
    conclusion is reached, they then become entitled to apply the hearsay exception
    and consider evidence of the acts and declarations performed and made by the
    co-conspirators in furtherance of the objects of the conspiracy as evidence
    against the accused on the issue of his guilt. This evidence, taken with the
    other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt
    that the accused was a member of the conspiracy and that he is accordingly
    guilty. [Numbering added.]

[29]

The
    trial judge failed to distinguish adequately between the second and the third
    stages when he instructed the jury as follows:

To determine whether youre satisfied beyond a reasonable doubt
    that Robert Cranston or Robert Solleveld were members of a conspiracy to commit
    fraud against their investors you are entitled to consider all of the evidence.
    You are not limited to Cranstons or Sollevelds own words or conduct. Besides
    that evidence, you may take into account what any other potential members of
    the conspiracy, namely Desiree Solleveld did or said while the conspiracy was
    going on for the purpose of achieving its object or purpose namely the fraud.

[30]

While
    this instruction is correct for stage three, it is wrong with respect to stage
    two. When combined with the all or nothing error, we are left with an
    instruction that creates a serious risk that the jury would not have understood
    the necessity to find, on the basis of only the evidence directly admissible
    against a particular accused, that that accused was probably a member of the conspiracy.
    Only then can the jury proceed to the final stage and, applying the hearsay
    exception, make a determination whether, on the basis of all the evidence, the
    Crown had proved beyond a reasonable doubt that the accused was a member of the
    conspiracy.

[31]

Accordingly,
    we would give effect to this ground of appeal. As the Crown does not ask us to
    direct a new trial on the conspiracy count, we set aside the convictions for
    conspiracy and substitute verdicts of acquittal on that count. It is conceded
    by duty counsel that the error in the jury charge with respect to conspiracy
    does not affect the verdicts on the other counts.

3. Did the trial judge err by giving a confusing jury charge
    that failed to distinguish between the Sollevelds and Cranston?

[32]

Cranston
    submits that the trial judge gave a confusing jury charge that failed to
    adequately distinguish between him and his co-accused. He submits that the
    evidence was, in effect, lumped together and that the jury would not have
    understood the need to consider the case against him independently and only to
    convict on the basis of evidence admissible against him.

[33]

We
    are unable to accept this submission. At several points in his instructions to
    the jury, the trial judge explained that each of the accused had to be tried
    separately and that none of the accused could be guilty of any offence unless
    the evidence relating to that accused proved his or her guilt beyond a
    reasonable doubt.

[34]

While
    the decision tree given to the jury did lump all three accused together in
    relation to fraud by putting their names in the same box, the trial judge
    expressly instructed the jury that while all three names were in the same box,
    they were to consider the evidence as against each of the accused and not to
    lump it all together.

[35]

We
    would not give effect to this ground of appeal.

4. Did the trial judge err in admitting evidence from the
    preliminary inquiry pursuant to s. 715(1)(a) of the Criminal Code?

[36]

Two
    witnesses who testified at the preliminary inquiry died before the trial. One
    was a former employee of TCSI who testified as to the roles played by the
    Sollevelds within the company and the steps taken by Robert Solleveld to foil
    the police. The other was an investor who was told he would earn 30 to 40% with
    no risk and was sworn to secrecy.

[37]

Robert
    Solleveld cross-examined both witnesses at length. Cranston, at the time
    represented by counsel, did not cross-examine them as one helped his defence
    and the other did not affect him.

[38]

At
    trial, the Sollevelds initially opposed the admission of the transcript of the
    two deceased witnesses testimony on the ground that they did not have
    sufficient opportunity to cross-examine them at the preliminary inquiry.
    However, they eventually acknowledged that they had had the opportunity to
    cross-examine and withdrew their opposition.

[39]

The
    trial judge did not err in admitting this evidence pursuant to s. 715(1)(a).
    The trial judge gave the jury an appropriate warning, as suggested by
R. v.
    Potvin
, [1989] 1 S.C.R. 525, both before the evidence was admitted and in
    his final instructions in relation to this evidence.

[40]

We
    see no error and would not give effect to this ground of appeal.

Other issues

[41]

The
    Sollevelds raise a number of other issues, some difficult to discern. They
    complain that they were unrepresented at trial but fail to point to any error
    in the trial judges
Rowbotham
ruling. They say that the court lacked
    jurisdiction because the proceedings began in London and were transferred to
    Hamilton. We see nothing improper about the case being tried in Hamilton and we
    observe that the indictment alleges offences committed in the City of
    Hamiltonand elsewhere in the Province of Ontario. Nor do we see any error on
    the part of the trial judge in keeping Cranstons criminal record from the
    jury. The Sollevelds raise a number of alleged
Charter
breaches. There
    is no merit to their
Charter
challenges.

5. Did the trial judge err as
    to the sentence he imposed?

[42]

We
    see no error in the custodial sentences imposed by the trial judge. These were
    very serious frauds involving millions of dollars. The sentences were in line
    with principles enunciated by this court in
R. v. Drabinsky
, 2011 ONCA
    582, 274 C.C.C. (3d) 222 and
R. v. Eizenga
, 2011 ONCA 113, 270 C.C.C.
    (3d) 168. While we have set aside the convictions for conspiracy, the sentences
    for that offence were concurrent and we agree with the Crown that the gravamen
    of the appellants conduct was the fraud. We see no reason that would justify
    interference with the concurrent sentences imposed for fraud.

[43]

We
    conclude, however, that there was an error with respect to the restitution
    order made against Cranston. Cranston was convicted of fraud in respect of
    funds he solicited on behalf of his corporation, Island Holdings. The trial
    judge ordered Cranston to make restitution to six investors for losses
    totalling $228,900 incurred on investments they made in Island Holdings. Cranston,
    assisted by duty counsel, argues that the trial judge erred in that he did not
    consider that the Island Holdings monies were subsequently transferred to TCSI
    and that the Sollevelds were also convicted on account of the Island Holdings
    fraud. In Cranstons submission, the Sollevelds are principally responsible for
    the losses incurred. As a result, the Sollevelds should be the ones ordered to
    make restitution in respect of the Island Holdings investors or, alternatively,
    because all three bore responsibility for these losses, the restitution order
    made against him should be limited to one-third of the losses.

[44]

An
    important consideration in deciding whether and in what amount a restitution
    order should be made is the determination of what happened to the money: See
R.
    v. Castro,
2010 ONCA 718, 102 O.R. (3d) 609, at para. 27.

[45]

In
    the present case the evidence disclosed that the money was channelled through
    Island Holdings into TCSI. This provided the basis for the jurys finding that
    all three appellants were guilty of the fraud committed on the Island Holdings
    investors. The fact that all three appellants bore responsibility does not
    appear to have been raised by the Crown or Cranston in their submissions made
    at the sentencing hearing. It also does not appear to have been taken into
    account by the trial judge in fashioning his restitution orders. The trial
    judges failure to take this into account is, in our view, an error. Because
    all three accused bore responsibility for the losses we would, therefore, vary
    Cranstons restitution order by reducing the amount ordered by two-thirds. This
    will reduce Cranstons restitution order to a total amount of $76,300.

Disposition

[46]

For
    these reasons, the appeals from conviction for conspiracy brought by Robert
    Solleveld and Robert Cranston are allowed, those convictions are set aside and
    acquittals on that count are entered. The appeals from conviction are otherwise
    dismissed. Leave to appeal sentence is granted and the restitution order
    against Cranston is varied by reducing the amount ordered by two-thirds,
    resulting in a restitution order against him in the amount of $76,300. The sentence
    appeals are otherwise dismissed.

Released: May 22, 2014
    Robert J. Sharpe J.A.

(P.R.)
    E.A. Cronk J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Strachan, 2014 ONCA 373

DATE: 20140509

DOCKET: C58239

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Strachan

Appellant

Breana Vandebeek, for the appellant

Roger Shallow, for the respondent

Heard: May 9, 2014

On appeal from the sentence imposed on September 24, 2013
    by Justice Jon-Jo Douglas of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellant that the trial judge erred in principle by
    failing to consider that this was the appellants first period of
    incarceration.  The trial judge also erred in his calculation of pre-sentence
    custody.  In accordance with the Supreme Court of Canadas decision in
Summers
the appellant was entitled to 115 days credit for pre-sentence custody.

[2]

In all the circumstances we think that the trial Crowns position of 12
    months imprisonment was reasonable.

[3]

The Crown also accepts that two conditions of probation ought to be
    varied:

·

para. 11 is varied to provide Find and maintain suitable
    employment or attend school as is approved in writing by your probation
    officer;

·

para. 22 is varied by deleting the reference to S.R. Strachan
    from this no contact provision.

Otherwise the probation order stands.

[4]

Accordingly, we grant leave to appeal sentence, allow the appeal
    and substitute a sentence of 12 months imprisonment in addition to the 115 days
    credit for pre-sentence custody, and we vary the probation order as set out
    above.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tomlin, 2014 ONCA 357

DATE: 20140506

DOCKET: C56800

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ramone Tomlin

Appellant

Breana Vandebeek for the appellant

Brian G. Puddington for the Crown

Heard: April 29, 2014

On appeal from the conviction entered on October 2, 2012
    by Justice L. Ricchetti of the Superior Court of Justice, sitting without a
    jury.

By the Court:

[1]

The appellant was convicted of importing 1.18 kilograms of cocaine which
    arrived in Canada with him, in two suitcases, upon his return from a trip to
    Jamaica.  The cocaine was concealed in two large frozen fish, themselves each
    placed among other smaller frozen fish in a green bag located in each suitcase.

[2]

The green bags were delivered to the appellant by a total stranger just
    before his departure from Jamaica.  The appellant made no inquiries of the
    individual about what was in the bags  indeed, the entire exchange between the
    appellant and the stranger consisted of two exchanges: Hi and Have a good
    trip.  Neither the appellant nor his mother looked into the bags to see what
    they contained.

[3]

The sole issue at trial was knowledge.  The appellant testified that he
    had no idea the cocaine was in his possession and that he had been duped by his
    girlfriend, who had asked him to bring back some fish to her when he returned
    and who called to remind him to do so during his visit and to say that her
    father would bring the fish to her for that purpose.

[4]

The trial judge did not accept the appellants version of events. He
    concluded on all of the evidence that the appellant knew he was importing the
    cocaine, and convicted him.

[5]

The appellant raised two issues on appeal:

i.

that the trial judge placed improper reliance upon a false statement
    made by the appellant on the Canadian Customs Declaration filled out on arrival
    (a statement the appellant admits was made to avoid a search of his
    belongings); and

ii.

that the trial judge misapprehended certain evidence in drawing
    inferences of knowledge on the part of the appellant.

[6]

We would not give effect to either ground of appeal.

The
    False Customs Declaration

[7]

The appellant argues that the trial judge heavily and improperly relied
    upon the appellants false declaration in assessing his credibility, in
    discussing his girlfriends evidence and in arriving at his ultimate conclusion
    regarding knowledge.  He argues that the statement on the declaration that he
    was not bringing fish into the country is equally explicable by his desire not
    to have them confiscated as it is by his desire not to have the importation
    uncovered.

[8]

In his written submissions, the appellant argued that the act of making
    the false declaration  and doing so in order to avoid a search  was similar
    to after-the-fact conduct.  Therefore, following a line of authorities
    reflected in
R. v. White
, [2011] 1 S.C.R. 433 and
R. v. Arcangioli
,
    [1994] 1 S.C.R. 129, the evidence had to be discarded as having no probative
    value because it was susceptible to a different explanation.  In oral argument
     perhaps recognizing that the false declaration did not neatly fall into the
    after-the-fact conduct category  counsel argued as well that it was simply circumstantial
    evidence and had to be analysed for other possible explanations on that basis.

[9]

We do not accept this submission.

[10]

The
    appellant admitted that he lied on the Customs Declaration and that he did so
    deliberately with the intention of avoiding a search of his belongings.  His
    explanation that he did so on the advice of an unknown elderly lady who was
    standing beside him when they were disembarking  the second total stranger in
    the story  was rejected by the trial judge.

[11]

It
    defies common sense to suggest that a trial judge may not take into account a
    deliberately false declaration made at the very same time as the act of
    importing is taking place, in assessing the credibility of the accused or as a
    piece of circumstantial evidence bearing on the events.  In these
    circumstances, the false declaration did not amount to after-the-fact conduct,
    in our view, and need not have been subjected to the other possible
    explanations analysis called for in
White
and
Arcangioli
.  Just
    as the evidence of a customs officer about the demeanour of a person entering
    the country is not evidence of after-the-fact conduct, but rather evidence of
    conduct during the very commission of the offence, so, too, is the making of an
    admittedly false declaration like the one here.  See
R. v. Morales
,
    [2004] O.J. No. 4010 (C.A.).

[12]

Nor
    is it the law that each piece of circumstantial evidence must be examined
    individually to determine if it can be explained in more than one way.    The
    law is that a person may not be convicted on the basis of circumstantial
    evidence alone, unless that evidence is consistent with guilt and inconsistent
    with any other rational conclusion:
R. v. Handy,
[2002] 2 S.C.R. 908, at
    para. 96.  That is not a concern here.

[13]

In
    any event, the false declaration was just one of several factors the trial
    judge relied upon in assessing the appellants credibility and ultimately
    rejecting his version of events.

Misapprehension
    of the Evidence

[14]

In
    our view, the trial judge did not misapprehend the evidence. The appellant is
    confusing adverse findings of credibility with misapprehension of the evidence.

[15]

The
    allegation was raised in connection with three pieces of evidence:

i.

the purchase of a second suitcase by the appellant prior to his return;

ii.

the evidence concerning the failure to inquire about, and lack of
    concern regarding, the contents of the two delivered packages; and,

iii.

the appellants reaction towards his girlfriend when she visited him in
    jail after his arrest.

[16]

In
    oral submissions, appellants counsel withdrew the argument set out in (ii)
    above.  Neither of the other two grounds can succeed either, in our view.

[17]

The
    trial judge referred to the appellants purchase of a second suitcase in his
    analysis of credibility. He rejected the appellants evidence that he had
    bought the second suitcase simply to carry back food.  He inferred that,
    because the second suitcase was necessary to bring back the two large packages,
    the appellant knew in advance of the need for an additional suitcase.  This
    inference was open to the trial judge on all of the evidence.

[18]

Nor
    did the trial judge misapprehend the evidence regarding the appellants
    reaction when he was visited in jail by his girlfriend after his arrest.  The
    appellants defence was that he had been duped by his girlfriend into bringing
    a large quantity of cocaine into Canada without his knowledge.  Even though the
    girlfriend testified that the appellant seemed shocked that he had been
    arrested, there was no evidence that the appellant questioned her about the
    situation or suggested that he was upset because he had been set up.  In these
    circumstances, it was open to the trial judge to conclude that the appellants
    reaction was subdued for someone in jeopardy as the appellant was, and that
    his reaction was more consistent with [the appellants] having known about the
    cocaine in the two packages and had no reason to blame [his girlfriend].

[19]

The
    misapprehension of evidence ground of appeal fails.

Disposition

[20]

For
    the foregoing reasons, the appeal is dismissed.

Alexandra Hoy, A.C.J.O.

J.C.
    MacPherson J.A.

Robert
    Blair J.A.

Released:  May 6, 2014 AH


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Udoka, 2014 ONCA 347

DATE: 20140501

DOCKET: C58254

Goudge, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chris Achilike Udoka (a.k.a. Udoka Chris
    Achilike)

Appellant

Graham T. Clark, for the appellant

Jason Balgopal, for the respondent

Heard and released orally: April 15, 2014

On appeal from the sentence imposed on September 20, 2013
    by Justice Bruce Duncan of the Ontario Court of Justice.

ENDORSEMENT

[1]

The Crown fairly concedes that the sentencing judge erred in principle
    by proceeding without hearing submissions from the appellant.  It therefore
    falls to this court to impose the appropriate sentence.

[2]

In all the circumstances, we would impose a conditional discharge.
    While the breach of the court order consists of numerous calls made soon after
    the date of the court order, we view the breach as at the less serious end of
    the spectrum.  They were calls that were collect to, and therefore accepted by,
    the complainant.  They were long enough that the complainant had ample
    opportunity to hang up, an opportunity she chose not to take.  There was no
    evidence that the contents of the calls contained any threats.  And the
    appellant was in custody when the calls were made.  Thus the calls posed no
    immediate danger to the complainant.

[3]

The circumstances of the appellant, combined with the circumstances of
    the offence, make a conditional discharge appropriate.  He has a positive
    personal background.  He has served four months in jail.  And he faces
    deportation if convicted.

[4]

In all the circumstances, leave to appeal sentence is granted.  The
    sentence appeal is allowed and a conditional discharge is substituted.

[5]

The parties propose, and we agree, that the term of probation be six
    months, that the appellant have no contact with the complainant, that the
    appellant be subject to a weapons ban, that the appellant reside at a location
    approved by his probation officer, and that he report to his probation officer
    as that officer directs.  If further terms are required, the court may be
    spoken to.

[6]

Finally, we note that the Crown agrees with the appellant that the
    appellants pre-trial custody be credited at 1:1.  So ordered.

S.T. Goudge J.A.

E.A. Cronk
    J.A.

Gloria Epstein
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Williams, 2014 ONCA 431

DATE: 20140528

DOCKET: C50854

Feldman, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Williams

Appellant

Talman W. Rodocker, for the appellant

John McInnes, for the respondent

Heard: November 14, 2013

On appeal from the conviction entered on July 5, 2004 by
    Justice John A. Desotti of the Superior Court of Justice, sitting with a jury.

Tulloch J.A.:

A.

OVERVIEW

[1]

The appellant, Raymond Williams, appeals his conviction for
    second-degree murder following a trial by a judge and jury.

[2]

The appellant raises two grounds of appeal. First, he argues that the
    trial judge erred in admitting into evidence a videotaped statement made on
    August 12, 2001, in which the appellant confessed his involvement in the murder
    of the deceased, John Dillon. On a blended
voir dire
, the trial judge
    concluded that the statement was admissible. The appellant submits that the
    videotaped confession is inadmissible because his statements were elicited
    involuntarily and in breach of his rights under s. 10(b) of the
Charter of
    Rights and Freedoms
.

[3]

Second, the appellant alleges that deficiencies in the jury-vetting
    process in his trial gave rise to a miscarriage of justice. Specifically, the
    appellant submits that, at the time of his trial, the Sarnia police department maintained
    a routine practice of providing the local Crown attorneys office with a
    marked-up list of the jury pool for a particular sitting. Those mark-ups were
    based on police searches of the Canadian Police Information Centre (CPIC)
    database. The appellant argues that this vetting was not shared with the
    defence, and that this nondisclosure tainted the trial with the appearance of
    unfairness.

[4]

For the reasons that follow, I would dismiss the appeal on both grounds.

[5]

Before analysing the merits of the appellants arguments on appeal, I
    review the relevant facts and the trial judges ruling on the
voir dire
.

B.

FACTS

[6]

I begin with a brief background of the case, followed by a discussion of
    the facts relevant to each of the grounds of appeal.

(1)

Background

[7]

The deceased, John Dillon, was a Sarnia drug debt collector. Following a
    911 call in the early morning hours of March 4, 2001, local police found Dillon
    unconscious and severely injured in the back seat of his car in a parking lot
    in downtown Sarnia. Dillon was rushed to hospital, but died five days later. Forensic
    analysis revealed that a palm print on the window of Dillons car  in Dillons
    blood  belonged to the appellant.

[8]

The Crowns theory at trial was that, early on March 4, Dillon went to
    the home of the appellants cousin, Warren Bebop Williams, to collect on a
    debt. Sometime later, the appellant and Bebops brother, Nicholas Guy Guy
    Williams, brutally beat Dillon and left him unconscious in his car. In addition
    to forensic analysis, the Crowns case consisted of medical evidence about
    Dillons injuries, evidence about the relevant parties and their relationships,
    and a videotaped confession by the appellant.

[9]

The appellant, in contrast, testified at trial that he had little
    recollection of the events of March 4. He remembered that, at Bebops behest,
    he drove Dillons car with the intention of taking him to the hospital.
    However, for reasons he did not recall, the appellant did not fulfill that
    intention and instead abandoned the vehicle with the injured Dillon inside.

[10]

Following
    a jury trial, the appellant was convicted of second-degree murder and sentenced
    to life in prison, with parole ineligibility set at thirteen years.

(2)

The Videotaped Confession

[11]

The
    appellants videotaped confession was a key piece of the Crowns evidence at
    trial. The confession was obtained on August 12, 2001, following a successful
    effort by police investigators to bring the appellant back to Canada from the
    United States.

[12]

Shortly
    after the deceaseds death, the appellant fled to the United States. He was
    arrested in Florida by American authorities on May 29, 2001 and consented to
    his extradition shortly thereafter. The Sarnia Police Service (SPS) and OPP jointly
    investigated the killing.  Four investigators  Staff Sergeant Chris Oram and
    Constable Patrick Nahmabin of the SPS, and Detective Constable Phil George and Detective
    Inspector David Cardwell of the OPP  flew to Florida on August 8 to bring the
    appellant back to Canada.

[13]

Less
    than a month prior, on or about July 18, 2001, Toronto lawyer Todd Ducharme (now
    Justice Ducharme of the Superior Court of Justice) had telephoned Sgt. Oram to
    let him know that he represented the appellant. Sgt. Oram made an effort to
    follow up with Mr. Ducharme on August 7, the day before he left for Florida. He
    telephoned Mr. Ducharmes office but was told by an assistant that he was away.
    Sgt. Oram asked the assistant to convey to Mr. Ducharme that he was traveling
    to Florida and that Mr. Ducharme should expect a phone call from the appellant
    on the morning of August 9. No indication was made to Sgt. Oram that there
    would be any difficulty in reaching Mr. Ducharme on that date.

[14]

After
    arriving at the custodial facility in Florida on the morning of August 9, Sgt.
    Oram arrested the appellant on a charge of second-degree murder, read him a
    secondary caution, and advised him of his rights to counsel. The appellant
    indicated that he understood his rights. Sgt. Oram then arranged for the
    appellant to speak to his counsel. They proceeded to another room, where Sgt.
    Oram telephoned Mr. Ducharmes office. A woman named Jennifer answered the
    phone and told Sgt. Oram that Mr. Ducharme was not right here. Sgt. Oram
    testified that he understood those words to mean that Mr. Ducharme was in the
    office and would be available momentarily. Accordingly, Sgt. Oram handed the
    phone to the appellant and left the room to allow him to speak to his counsel. Five
    or six minutes later, the appellant emerged from the room. The appellant gave
    no indication  and Sgt. Oram made no inquiries  as to whether he had in fact conferred
    with his counsel. The group then boarded an airplane bound for Canada. Sgt.
    Oram made efforts to elicit a statement, but the appellant repeatedly stated that
    he would not make a statement before speaking to a lawyer.

[15]

The
    flight landed near Orillia at around 4 p.m. Sgt. Oram arranged for Sergeant
    Chris Loam, an OPP officer, to interrogate the appellant at the Orillia OPP
    detachment. Sgt. Oram explained that he had turned his mind toward arranging a
    call with the appellants counsel at the detachment, but neither he nor the
    other officers gave effect to that intention. The officers testified that, at
    the appellants request, they did not record the appellants interrogation and
    conducted part of the interrogation in the detachments rear parking lot. The
    appellant did not give a confession at the detachment, and at approximately 10
    p.m., he was transported to Sarnia. He was offered an opportunity there to
    speak to counsel but declined.

[16]

The
    next morning, August 10, Sgt. Oram met with the appellant in an interview room
    at the station. The exchange was again not recorded. Sgt. Oram explained to the
    appellant that, as far as he was concerned, the appellant had already given
    evidence against himself as a party to the offence in the course of providing
    his account of the events leading to the deceaseds death. Following the
    interrogation, the appellant was taken to court and remanded to a detention
    centre.

[17]

On
    the evening of August 11, the appellant called Constable Nahmabin to advise him
    of his intention to make a full statement about Dillons killing. The appellant
    indicated that he was unable to sleep and wanted to get something off his
    chest. When Sgt. Oram asked the appellant whether he had spoken to his lawyer,
    he replied that he did not need a lawyer to point his moral compass. The next
    day, the appellant gave a statement before the investigators at his detention
    centre. He was afforded an opportunity to speak with counsel prior to making
    the statement, but he declined. The appellants confession, captured on
    videotape, implicated both himself and Nicholas Williams  Guy Guy  in
    Dillons death. In the course of making his statement, the appellant referred
    to his difficulty sleeping and his hope that he would be forgiven for telling
    the truth.

[18]

At
    trial, the appellant disavowed his confession and maintained that, at the time
    of Dillons killing, he was heavily under the influence of drugs and alcohol.

(3)

The Jury Selection Process

[19]

At
    the time of trial, the Sarnia Crown Attorneys Office maintained a routine
    practice of asking for criminal record checks on prospective jurors. The local
    police would run the names of individuals on jury lists on the CPIC database,
    and the list would be returned to an administrative staff person. The staff
    person, in turn, would prepare a master list for the Crown attorney responsible
    for selecting the jury. If a search generated a CPIC hit, a no would be
    marked on the list next to the name of the prospective juror. In some cases,
    the hit pertained to something other than a disqualifying criminal conviction
    (e.g., a discharge). No other notations appeared on the master list, and no
    further information was provided to the Crown. The results of the checks were
    not routinely disclosed to defence counsel.

[20]

Jury
    selection for the appellants trial took place on May 3 and 4, 2004. A
    challenge for cause question relating to the background of the appellant and
    the deceased  the former is of First Nations descent, and the latter was white
     was put to each prospective juror. At the conclusion of the process, a jury
    of twelve with six alternates was selected.

[21]

The
    jury selection process in the appellants case followed the prevailing practice
    in Sarnia. The jury was selected from two panels, each consisting of 150
    prospective jurors. Following CPIC checks, support staff in the Crown
    Attorneys office noted a no next to three names on each list  a total of
    six prospective jurors. All three individuals on the first panel with notations
    were screened out of the pool by the trial judge prior to the selection process
    for reasons unrelated to the CPIC checks. Of the individuals with notations on
    the second panel, the first was similarly screened out by the trial judge and
    the second was never considered as a potential juror. The third, however, was
    challenged peremptorily by the Crown on the second day of jury selection. At
    that point, twelve jurors and four alternates had already been selected. Ultimately,
    only the first alternate was called upon to serve on the jury; therefore, had
    the prospective juror not been challenged, she would have served as the fifth
    alternate and would not have been a juror.

[22]

Consistent
    with past practice, the documentation provided by the police agencies was
    shredded and no longer exists. As a consequence, the results of the 2004 checks
    are not known. By order of this court, checks of the prospective jurors were
    conducted against the CPIC database in August 2010. The 2010 checks revealed
    that four of the prospective jurors  including the juror who would have served
    as the fifth alternate  had CPIC records, while two did not. For a host of
    reasons, the results of the 2004 and 2010 checks may not have been identical.
[1]

C.

THE TRIAL JUDGES RULING

[23]

The
    trial judge considered the following questions on a pre-trial blended
voir
    dire
:

·

Whether statements made by the accused, and particularly the
    incriminating statement made by the accused on August 12, 2001, were voluntary;

·

Whether these statements were made in contravention of s. 10(b)
    of the
Charter
and, if so, whether subsequent statements by the
    accused were tainted;

·

Whether the statements should be excluded pursuant to s. 24(2) of
    the
Charter
.

(1)

Voluntariness

[24]

The
    trial judge found that, while the officers attempted to elicit a statement from
    the appellant, they at no time offered any promises, inducements, threats or a
    hope of advantage. The officers were persistent and discussed charge options
    and bail with the appellant, but these were never proposed in exchange for a
    statement.

[25]

Rather,
    the appellant was induced by an overwhelming urge or need to purge his troubled
    mind (soul) of what had transpired on the night of March 4, 2001 between the
    victim and the accused and others. The trial judge emphasized the appellants
    repeated references to remorsefulness and moral responsibility in his various
    statements to police. The trial judge concluded that, [i]n all the
    circumstances, [the appellants] statement was the product of an overwhelming
    urge on the part of the accused to tell the truth, to free his spirit from the
    burden of guilt and of his involvement in the murder of John Dillon.

[26]

The
    trial judge wholly accepted the officers explanation for their failure to
    record their interactions with the appellant prior to the videotaped statement.
    He accepted that audio recording was not feasible on the plane, and he found
    that the interactions at the airports and outside the Orillia detachment were
    at the request of the appellant. The trial judge also found that it was at the
    appellants request that the officers did not record their interactions with him
    at the Orillia detachment.

[27]

While
    there were certain gaps in the appellants videotaped confession, the trial
    judge found that these were attributable to an oversight by the officers,
    rather than a purposeful attempt to induce or threaten the appellant. The trial
    judge also accepted the evidence of the officers as to what transpired during
    the contacts with the accused that were not recorded; there was no quid pro
    quo in exchange for an incriminating statement, and little if any
    incriminating information was obtained.

(2)

Sections 10(b) and 24(2) of the
Charter

[28]

In
    the trial judges view, the failure of the police to provide the appellant with
    access to counsel on the plane from Florida was reasonable, given that the
    appellant was provided with this opportunity at the correction centre in
    Florida. The plane was not a suitable or private location for the appellant to
    speak with counsel. The same privacy concerns justified the failure to provide
    access to counsel at the Orillia airport or in the cruiser en route to the
    Orillia detachment.

[29]

However,
    the officers failure to allow the appellant to call counsel from the Orillia
    detachment was a breach of the appellants
Charter
rights
    notwithstanding that he had spoken to counsel from Florida. On three occasions
    on the plane, the appellant had asked to speak with counsel. However, the
    interviews prior to access to counsel were not oppressive, aggressive or
    threatening and no incriminating statements were made by the appellant. In the
    circumstances, in my view, an application under s. 24(2) would have failed with
    respect to these interviews.

[30]

The
    trial judge also held that, in the event that he had misapprehended the
    evidence with respect to voluntariness or s. 10(b) of the
Charter
, the
    appellants contact with police on August 11 and the statement made on August
    12 were not connected to any possible previous inducements or threats. The
    trial judge made findings of fact that, while in Florida, the appellant was in
    contact with the Law Office and presumably Mr. Ducharme for 5 or 6 minutes;
    that the appellant at no time advised the officers on that day that he had not
    spoken to counsel; and that, more importantly, Sgt. Oram believed that the
    appellant had in fact spoken to counsel.

D.

ISSUES ON APPEAL

[31]

The
    appellant advances two arguments on appeal.
[2]
First, he submits that the trial judge erred in law in ruling that the
    videotaped confession was admissible. Second, he argues that deficiencies in
    the jury selection process gave rise to a miscarriage of justice and warrant a
    new trial. I address these arguments in turn.

(1)

The Admissibility of the Videotaped Confession

(a)

Arguments on Appeal

[32]

The
    appellant finds fault in the trial judges ruling on the
voir dire
in
    two respects.

[33]

First,
    he argues that the trial judges reasons were insufficient. Specifically, the
    trial judge erred in law by failing to analyse and reconcile the contradictory
    evidence of Sgt. Oram. On one hand, Sgt. Oram testified that he facilitated the
    appellants access to counsel; on the other, he told the trial judge that he
    was entirely uncertain as to whether the appellant had in fact spoken to his
    counsel. The appellant submits that the evidence demonstrates a failure by the
    police to confirm whether the appellant had exercised his right to counsel.

[34]

Second,
    the appellant disputes the trial judges conclusion that the police did not act
    inappropriately in failing to record their persistent and prolonged
    interactions with him. Conceding that the law does not require the police to
    record every interaction with an individual under interrogation, the appellant
    argues that a host of factors in this case  including the seriousness of the
    charge and the length of time that the appellant was in custody  demanded more
    from the police.

[35]

The
    Crown submits that both arguments are flawed. First, the trial judges reasons
    were not insufficient for three reasons: Sgt. Oram was not equivocal about
    whether he facilitated the appellants access to counsel; the appellant bore
    the burden of proving a violation of his s. 10(b) rights but failed to marshal
    any such evidence; and all the evidence actually led on the
voir dire
uniformly established that the appellant
had
spoken to his counsel on
    the morning of August 9. Second, the trial judges finding regarding the
    voluntariness of the appellants statements was reasonable. There is no legal
    rule that interactions between the police and a suspect must be videotaped as a
    condition precedent to establishing voluntariness, and the circumstances of
    this case did not require the officers to do more than they did.

(b)

Analysis

[36]

At
    the outset, I point out that there is an important distinction in the
    allocation of the burden of proof on each of the two issues related to the
    admissibility of the videotaped confession. The prosecution bears the onus of
    establishing the voluntariness of an accuseds statements beyond a reasonable
    doubt, while the accused shoulders the evidentiary burden of proving, on a
    balance of probabilities, a violation of his or her s. 10(b) rights:
R. v.
    Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 30. Put in the context of
    this case, the Crown had the obligation of proving that the appellants will
    was not overborne during the interrogations, while the appellant was required
    to show that Sgt. Oram failed to facilitate his access to counsel.

(i)

Section 10(b)

[37]

Turning
    to the appellants first argument, my view is that the trial judges reasons
    were sufficient. The sufficiency of trial reasons is to be assessed against the
    functional criteria set out in
R. v. Sheppard
, 2002 SCC 26, [2002] 1
    S.C.R. 869. Relevant for our purposes is
Sheppard
s instruction, at
    para. 46, that a trial judges failure to make apparent, in his or her reasons,
    how he or she deals with confused or conflicting evidence, may constitute an
    error of law warranting appellate intervention.

[38]

The
    trial judges reasons on the
voir dire
exhibit no such failure. The
    trial judges key findings  that the accused never advised any of the officers
    that he had not spoken to counsel, and that Sgt. Oram reasonably believed that
    the accused had  were reasonable and supported by the evidence on the
voir
    dire
. While Sgt. Oram never actually spoke to Mr. Ducharme in Florida, he
    reasonably interpreted the secretarys words to mean that Mr. Ducharme was in
    the office and would be available momentarily. Sgt. Oram also spoke to Mr.
    Ducharme in July 2001 about the timing of the appellants return to Canada,
    made efforts to follow up with Mr. Ducharme immediately before leaving for
    Florida, and overheard a conversation between the appellant and Sgt. Loam in
    which the appellant indicated that he had spoken to his lawyer and that his
    lawyer was aware that he was back from Florida.

[39]

Importantly,
    the appellant led no evidence on the
voir dire
to establish that he
    had not had an opportunity to confer with his counsel or that he made the
    officers aware of that fact. Without that evidence, which the appellant had the
    unique ability  and indeed, obligation  to adduce, there is no basis upon
    which to conclude that the officers deprived the appellant of his right to
    counsel.

[40]

The
    appellant cites
R. v. Badgerow
, 2008 ONCA 605, 237 C.C.C. (3d) 107, at
    para. 47, for the proposition that police are obliged to obtain explicit
    confirmation concerning whether [an accused] had exercised his right to counsel
    of choice before questioning him. In
Badgerow
, however, the accuseds
    statements to police raised a reasonable prospect that he had not exercised his
    s. 10(b) rights. In such cases,
Badgerow
held, the police must act
    diligently to ensure that an accused is supplied with a reasonable opportunity
    to consult counsel. In the case at bar, the appellants statements did not indicate
    to the officers that he had been deprived of an opportunity to speak to his
    counsel; indeed, the evidence points to the contrary conclusion. To be sure, it
    would have been preferable for Sgt. Oram to have confirmed with the appellant
    that he had indeed spoken to his counsel. However, s. 10(b) of the
Charter
did
    not impose an obligation on him to do so.

[41]

In
    effect, the trial judges finding was that, in the circumstances, Sgt. Oram had
    a reasonable belief that the appellant had exercised his s. 10(b) right to
    counsel. Sgt. Orams concession that, at the time he briefed Sgt. Loam, he was
    not unequivocally certain as to whether the appellant had spoken to his counsel
    is not inconsistent with that finding. Unlike in
R. v. Backhouse
(2005),
    194 C.C.C. (3d) 1 (Ont. C.A.), the trial judges reasons here did not leave
    unresolved the fundamental factual issue of whether the appellant asserted his
    right to speak to counsel. The trial judge here gave due consideration to the
    evidence, and his findings were amply supported by the record.

(ii)

Voluntariness

[42]

I
    also reject the appellants second line of argument with regard to the
    admissibility of the videotaped confession, namely, that the trial judge erred
    in concluding that the police were not required to record all their
    interactions with the appellant.

[43]

This
    court addressed the obligations of police officers to record their interactions
    with an accused in
R. v. Moore-McFarlane
(2001), 56 O.R. (3d) 737. Writing
    for this court, Charron J.A. (as she then was) acknowledged, at para. 64, that
    there is no absolute rule requiring the police to record an accuseds statements.
    She added the following, at para. 65:

[T]he Crown bears the onus of establishing a sufficient record
    of the interaction between the suspect and the police. That onus may be readily
    satisfied by the use of audio, or better still, video recording. Indeed, it is
    my view that where the suspect is in custody, recording facilities are readily
    available, and the police deliberately set out to interrogate the suspect
    without giving any thought to the making of a reliable record, the context
    inevitably makes the resulting non-recorded interrogation suspect. In such
    cases, it will be a matter for the trial judge on the voir dire to determine
    whether or not a sufficient substitute for an audio or video tape record has
    been provided to satisfy the heavy onus on the Crown to prove voluntariness
    beyond a reasonable doubt.

[44]

A
    trial judges finding of voluntariness is entitled to appellate deference and
    should not be interfered with in the absence of an error in law or a palpable
    and overriding error as to the facts:
Moore-McFarlane
, at para. 68.

[45]

No
    such error appears in the trial judges ruling on voluntariness.  He thoroughly
    reviewed the instances in which the appellants interactions with the police
    were not recorded, and he carefully considered the officers explanations for
    their failure to record. He accepted the officers evidence that they did not
    record their interactions with the appellant where it was not feasible to do so
    or where the appellant requested that they not record his interactions with
    them. Noting the officers testimony that they had since abandoned the practice
    of turning off recording equipment after the release of Commissioner Peter
    Corys report in the Sophonow inquiry,
[3]
the trial judge accepted that the officers actions were in conformity with the
    protocol that prevailed in 2001. In the trial judges mind, the officers
    rationale for their conduct and the absence of contradictory evidence distinguished
    the facts from those in
Moore-McFarlane
and discharged the Crowns
    burden of proving voluntariness beyond a reasonable doubt.

[46]

The
    appellant does not point to weaknesses in the Crowns evidence or the trial
    judges reasons. Rather, he merely asserts that a myriad of factors,
    including the seriousness of the charge and the length of the appellants
    detention, demanded that the officers record each and every interaction with
    the appellant. I am not persuaded by this submission. While a failure to record
    police interactions with an accused may, in some circumstances, raise questions
    about the voluntariness of the accuseds statements, such circumstances are not
    present here. The police here acted reasonably and did not deliberately set
    out to interrogate the suspect without giving any thought to the making of a
    reliable record:
Moore-McFarlane
, at para. 65.

[47]

Accordingly,
    I would give effect to neither of the appellants arguments with regard to the
    admissibility of the videotaped confession.

(2)

The Jury Selection Process

(a)

Arguments on Appeal

[48]

The
    appellant further argues that the defects in the trial jury-vetting process
    resulted in a miscarriage of justice. Relying on
R. v. Spiers
, 2012
    ONCA 798, 113 O.R. (3d) 1, in which this court held that the extent of the jury
    vetting conducted by the police and Crown compromised the appearance of
    fairness, the appellant submits that the Crowns failure to disclose the
    results of the background checks warrants a new trial. A reasonable and
    well-informed person would perceive that the jury selection process  and
    therefore the entire trial  constituted a miscarriage of justice. The
    appellant acknowledges that, in several cases, this court has rejected
    conviction appeals based on irregularities in the jury-vetting process  see
R.
    v. Yumnu
, 2010 ONCA 637, 260 C.C.C. (3d) 421,
R. v. Emms
, 2010
    ONCA 817, 104 O.R. (3d) 201, and
R. v. Davey
, 2010 ONCA 818, 103 O.R.
    (3d) 161  but views those cases as distinguishable from the one at bar.

[49]

The
    Crown concedes that the practice of failing to disclose the results of the CPIC
    checks was problematic, but argues that the jury-vetting process was based on a
    routine procedure that was not the product of a sinister design to gain an
    advantage for the Crown. What is more, there is no reasonable possibility that
    the nondisclosure affected the composition of the jury.
Spiers
, the
    Crown submits, is orders of magnitude worse than the facts of this case. The
    Crown agrees that
Yumnu
,
Emms
, and
Davey
are distinguishable,
    but on the basis that these cases involved background checks that were
more
invasive of juror privacy and provided
more
detailed and specific
    information about a greater percentage of prospective jurors.

(b)

Analysis

[50]

The
    principles governing the authority of the Crown to use police databases to
    conduct background checks on prospective jurors were set out in
R. v. Yumnu
,
    2012 SCC 73, [2012] 3 S.C.R. 777. Moldaver J. held at para. 50 that, in the
    absence of legislation to the contrary, the authorities should be permitted to
    do criminal record checks on potential jurors to determine whether they are
    eligible to serve as jurors under provincial law and/or whether they may be
    subject to challenge for cause under s. 638(1)(c) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.
[4]
The Crown cannot set out to find information about prospective jurors that is
    outside the bounds of what is relevant under provincial law or s. 638(1)(c),
    but if they come across such information in the course of performing otherwise
    valid checks, they need not turn a blind eye to it:
Yumnu
, at para.
    54. But any information relevant to the jury selection process must be
    disclosed to the defence:
Yumnu
, at para. 55.

[51]

Moldaver
    J. set out a two-part test, at para. 75, for appeals from conviction based on
    the Crowns failure to disclose information about prospective jurors to defence
    counsel:

I am of the view that persons who seek a new trial on the basis
    that non-disclosure of information about potential jurors deprived them of
    their
s. 7

Charter
right
    to a fair trial must, at a minimum, establish that: (1) the Crown failed to
    disclose information relevant to the selection process that it was obliged to
    disclose; and
(2) had the requisite disclosure been made, there is a
    reasonable possibility that the jury would have been differently constituted
[emphasis
    added].

[52]

In
    the instant case, neither the results of the 2004 background checks nor the scope
    of the Crowns search are known. In any event, the Crown accepts that, pursuant
    to routine practice, the results of the checks were not disclosed to the
    defence. There is no doubt, therefore, that the appellant has satisfied the
    first step of
Yumnu
test.

[53]

It
    is at
Yumnu
s second step that the appellants argument collapses.
    Only one of the six prospective jurors with a no notation was called upon to
    serve on the jury, and had she not been challenged peremptorily she would have
    been seated as an alternate juror and would have never served on the jury. By
    way of comparison, in
Spiers
, trial counsel for the defence indicated
    that had he been privy to the information available to the Crown, he would have
    challenged at least five jurors who actually served on the jury:
Spiers
,
    at

para. 75. The appellants counsel here has made no such
    submissions.

[54]

This
    case bears no resemblance to
Spiers
. The possibility that the jury
    would have been differently constituted in the appellants trial is not
    reasonable, or even remote  it is simply nonexistent.

[55]

Therefore,
    I would also dismiss this ground of appeal.

E.

CONCLUSION

[56]

I
    see no merit in either of the appellants grounds of appeal. The trial judge
    did not err in finding that the appellants right to counsel was not violated,
    and his finding that the appellants statements were voluntary was not
    unreasonable. Moreover, while the Crown acted improperly in failing to disclose
    information regarding prospective jurors to the defence, there is no possibility
    that but for the nondisclosure, the appellant would been judged by a different
    jury of his peers.

[57]

For
    these reasons, I would dismiss the appeal.

Released:

MAY 28 2014                                   M. Tulloch
    J.A.

KF                                                   I
    agree K. Feldman J.A.

I
    agree E.E. Gillese J.A.

[1]
These reasons are set out in the parties Agreed
    Statement of Facts. First, for purposes of accuracy, dates of birth were
    inputted in the course of conducting the 2010 CPIC checks. This procedure was
    not followed in the 2004 checks, allowing for the possibility that the 2004
    hits that were generated related to individuals with the same or a similar
    name. Second, any of the six prospective jurors with a no notation could have
    been granted a pardon between 2004 and 2010 with respect to a disqualifying
    conviction. Third, there was a potential for human error in the 2004 checks.

[2]
In his factum, the appellant abandoned his appeal
    from sentence and his ground of appeal from conviction on the issue of
    intoxication and specific intent.

[3]
Manitoba, The Inquiry Regarding Thomas Sophonow: The
    Investigation, Prosecution and Consideration of Entitlement to Compensation
    (Winnipeg: Manitoba Justice, 2001).

[4]
Section 638(1)(c) provides the following: A
    prosecutor or an accused is entitled to any number of challenges on the ground
    that  a juror has been convicted of an offence for which he was sentenced
    to death or to a term of imprisonment exceeding twelve months.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zheng, 2014 ONCA 345

DATE: 20140501

DOCKET: C55383

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

An Bai Zheng

Applicant/Appellant

Linda Tang, for the appellant

Geoffrey Roy, for the respondent

Heard: April 28, 2014

On appeal from the conviction entered on May 19, 2011 and
    the sentence imposed on June 20, 2011 by Justice M. Rawlins of the Ontario
    Court of Justice.

R.A. Blair J.A.:

[1]

The appellant seeks to set aside his conviction for possession of a
    large number of marijuana plants for the purpose of trafficking.  He was
    acquitted on charges of production of marijuana and theft of electricity.

[2]

The appellant also seeks leave to appeal and, if leave is granted,
    appeals from the sentence of 10 months imprisonment (6 months plus 4 months
    credit for pre-trial custody).

The Facts Led at Trial

[3]

Late one afternoon police officers attended
    at a house in Windsor in response to a 911 call about gunshots heard at the
    house.  One officer saw a man who turned out to be the appellant open the
    curtains from inside the house.  The officer waved at the man to come out and
    the appellant emerged, wearing pyjamas and carrying a house key on him.  The
    police took the key and searched the house to see if anyone was inside,
    injured.

[4]

No one was discovered inside, injured,
    but the police did discover a large marijuana grow operation. The one-storey
    house had three bedrooms, a kitchen, an attic and a basement.  Only one bedroom
    appeared to be used as a bedroom.  The second was covered in black garbage bags
    and had large lights, dirt and wires in it.  The third bedroom had 200 stacked
    and empty plant/flower pots and soil on the floor.  In the basement, the police
    discovered 343 potted marijuana plants, along with fans, chemicals, and hoses.
    A search of the attic revealed a hydro by-pass.

[5]

On a coffee table on the main floor
    were the appellants passport, a citizenship certificate and a 2007 statutory
    declaration and power of attorney signed by the appellant.

[6]

The appellant was arrested and
    charged.  The police then obtained a search warrant and returned to the house
    to search it.

[7]

At trial, the appellant did not testify.
    On the basis of the evidence before her, the trial judge found the appellant to
    be in possession and control of the house and its contents.  She held him to be
    in constructive possession of the marijuana plants and  since there was no
    issue that the 343 marijuana plants and the other related paraphernalia were
    sufficient to satisfy the criteria for possession for the purposes of
    trafficking  therefore guilty of possession of marijuana for the purposes of
    trafficking.  She had a reasonable doubt with respect to production and theft
    of electricity, however, and acquitted the appellant on those charges.

The Grounds of Appeal

[8]

The appellant raises four grounds of
    appeal.  First, he argues that the trial judge was biased against him, based on
    a statement the trial judge made during the course of the sentencing
    proceedings.  Secondly, he asserts that the verdict was unreasonable, based on
    the evidence. Thirdly, he submits that there has been a miscarriage of justice
    as a result of the incompetence of his trial counsel in failing to call him to
    testify and in failing to call two other available witnesses to testify.  Finally,
    he says that the sentence imposed was harsh.

[9]

We would not give effect to these
    grounds of appeal.

Reasonable Apprehension of Bias

[10]

The appellant states that the following
    statement made by the trial judge during the sentencing proceeding discloses a
    reasonable apprehension of bias:

THE COURT:  I know.  You see, you say
    Poor me. Poor Mr. Zheng.  Youre lying to officers in Toronto.  Youre lying
    to the Probations Department saying you live in Windsor and so quite honestly,
    sir, I have very little sympathy for you.  You come to our country as an
    immigrant.  You came as a guest who was invited to stay.  I would not foul your
    country and its laws by doing something like this, so why are you doing this to
    us?  Exactly.  Thats an aggravating factor sir, the by-pass.

[11]

While the comment was unfortunate, in
    our view, and would have better been left unsaid, we are not persuaded it would
    give rise to a reasonable apprehension of bias, as that concept is described in
    the jurisprudence.  It would not have led a reasonable and right-minded person,
    informed and viewing the matter realistically and practically, and who had
    thought the matter through carefully, to conclude that the trial judge was
    biased: see
R v. R.D.S.
, [1997] 3 S.C.R. 484, at para. 111.  The
    threshold for a finding of bias is necessarily high because such a finding
    calls into question the integrity of the administration of justice:
R.D.S.
,
    at paras. 112, 117.

[12]

Here, the impugned statement was one
    comment over a three-day trial; it was made during the sentencing proceedings
    and after conviction; the trial judge acquitted the appellant on two of the
    three charges he faced.  In terms of the sentencing proceedings, there is
    nothing to suggest that the trial judge treated the fact the appellant is an
    immigrant or was dishonest with his probation officer as aggravating factors,
    or that the remark had any impact on the sentence imposed.

[13]

We reiterate that the comment was
    unfortunate.  However, we would not give effect to this ground of appeal.

Unreasonable Verdict

[14]

Nor would we give effect to the
    submission that the verdict was unreasonable.  The appellant was the sole
    occupant of a house in which a very large marijuana grow operation was
    discovered  spread through the entire house.  Another judge may have come to a
    different conclusion, but it was open to the trial judge here, on the record
    before her, to find that the appellant was in control and possession of the
    premises and had knowledge of the operation and, therefore, was in constructive
    possession of the marijuana plants.

Ineffective Assistance of Counsel

[15]

The appellants main argument is that
    his trial counsel was incompetent and that this incompetence resulted in a
    miscarriage of justice and therefore requires a new trial.

The Appellants Story

[16]

The appellant filed two affidavits in
    support of his ineffective assistance of counsel claim, and was cross-examined
    on them.  His trial counsel also filed an affidavit.  She was not
    cross-examined on that affidavit.

[17]

The appellant is a Canadian citizen who
    came to Canada from China in 1988 and worked in various jobs.  He had a home in
    Toronto but lost it and his personal belongings in a fire in 2007.  He then
    moved around and spent time at various local casinos.  There he met a man, Xiao
    Di, from his hometown in China.  Xiao Di loaned him $5,000 which the appellant
    lost while gambling in the casinos.  He then made an agreement with Xiao Di
    that he would do house chores for Xiao Di at the latters house in Windsor (the
    premises in question) in order to work off the debt and he would receive a
    further $5,000 from Xiao Di in a year.

[18]

Between February 2010 and February
    2011, the appellant spent about two weeks in Toronto and two weeks in Windsor
    each month.  In Windsor he stayed at the house in question, which was rented by
    Xiao Di and another man.  The appellant took care of the yards and occasionally
    went to Casino Windsor.  Xiao Di and his friend came to the house and worked in
    the basement from time to time and stayed there occasionally.  They asked the
    appellant not to go to the basement, and he did not have keys to the basement,
    which he believed was locked.  He was 61 years old at the time and suffering
    from asthma.  He was therefore too weak to do anything physical other than
    taking care of the yards.

[19]

With one exception, the thrust of this
    evidence is similar to what trial counsel says was explained to her during one
    of her three interviews with the appellant.  At paras. 11 and 12 of her
    affidavit she states:

11. During the interview Mr. Zheng
    explained his version of events.  He explained that he was brought to Windsor
    in December of 2009 to be the caretaker of a house that was owned by an
    individual that he owed money to due to gambling debts.  I was advised by Mr.
    Zheng that he lived at the home and took care of it, up until his arrest.  He
    mowed the lawn in the summer and shovelled snow in the winter.  He further
    advised me that he was aware that a lot of things were moved into the house
    January 29, then to the basement on January 30; although he indicated that he
    did not assist in transporting the plants.  He also advised me that men in
    uniforms came into the house and changed the pipes.  He stated that the
    electricity, the heating and hot water systems were changed.

12. Mr. Zheng advised that he was in the house for a year and
    did nothing with this type of activity.  He said that he suspected something
    illegal and planned to move out at the end of February.  He explained that he
    did not report the activities that he perceived to be illegal because he does
    not speak English.

[20]

Trial counsel also deposed that Mr.
    Zheng had not advised her that he travelled back and forth to Toronto monthly
    and in fact stated that he lived at the house.  He never described himself as a
    guest.

The Appellants Case In Respect of Ineffective
    Assistance of Counsel

[21]

The appellants central allegations in
    respect of his ineffective assistance of counsel claim are these: trial
    counsel: (i) failed to spend enough time meeting with him in preparation for
    and at trial; (ii) failed to advise the appellant of his right to testify and
    of her decision not to call him at trial; (iii) should have called other
    witnesses who were available for the defence; and (iv) should have sought an
    adjournment of the trial in order to clarify the issue of the appellant`s place
    of residence and, having determined that the appellant was living half time in
    the residence, should not have abandoned the appellant`s s. 8
Charter
application attacking the police search of the premises. Other allegations advanced
    by the appellant on this issue need not be addressed because there is simply no
    basis for them in the record.

The Law

[22]

In
R v. Archer
, (2005) 293
    O.A.C. 56, at paras. 119-21, this Court summarized the principles relating to
    an appellate courts analysis of a claim of ineffective assistance of counsel.
    The appellant must demonstrate: (i) that the material facts in support of the
    claim have been established on a balance of probabilities, where those facts
    are contested; (ii) that counsels acts or omissions amounted to incompetence;
    and (iii) that counsels ineffective representation caused a miscarriage of
    justice.  Trial counsels performance at trial is to be reviewed on a
    deferential basis because, as this Court said in
R v. White
(1997), 114
    C.C.C. (3d) 225, at p. 247, even among the most skilled counsel, no two
    lawyers will defend an accused in the same way.  In
Archer
, the Court
    said:

Incompetence is measured against a
    reasonableness standard.  That assessment is made having regard to the
    circumstances as they existed when the impugned acts or omissions occurred.
Hindsight
    plays no role in the assessment.  Allegations of incompetent representation
    must be closely scrutinized.  Many decisions made by counsel at trial will come
    to be seen as erroneous in the cold light of a conviction
.  The
    reasonableness analysis must proceed upon a strong presumption that counsels
    conduct fell within the wide range of reasonable professional assistance:
R
    v. G.D.B.
(2000), 143 C.C.C. (3d) 289, AT P. 298 (S.C.C.) [Emphasis added.]

[23]

In our view, the appellants
    ineffective assistance of counsel claim cannot meet these criteria.

Meeting with the Appellant

[24]

Trial counsel met with the appellant,
    with an interpreter, on three separate occasions.  Her Legal Aid dockets
    confirm two of these and she was not cross-examined on her assertion that there
    was a third.

[25]

The appellant complains that trial
    counsel did not meet with him for long enough.  However, it is not the length
    of the meetings that counts; it is whether they sufficed for trial counsel to
    understand the clients position and for the client to understand the process
    and issues.

[26]

Here, it is clear from the excerpts
    from trial counsels affidavit cited above that she was aware very early on of
    the appellants version of events, including his statement that he lived at the
    premises where the marijuana was found.  As explained below, it is also clear
    that there was a full discussion between trial counsel and the appellant
    concerning his right to testify and the question of the s. 8
Charter
application.

[27]

We would not give effect to this
    allegation.

The Appellant`s Right to Testify

[28]

The ground relating to the appellant`s
    right to testify cannot succeed either, because the appellant has not met the
    first of the
Archer
criteria; he has not established the material facts
    in support of that claim on the balance of probabilities.

[29]

Trial counsel swore an affidavit in
    which she denied each of the appellant`s allegations.  In particular, she swore
    that she and the appellant had discussed during a break in the trial  in the
    presence of an interpreter  whether or not [he] should testify and that she
    advised him not to testify but that it was his decision:

I advised him that based on what
    he had told me and what he was insisting on testifying to, that he risked being
    convicted of all counts
.  I explained
    again that the test is knowledge and control and given that he wished to
    testify that he lived there but did not have anything to do with the grow op,
    but that he knew it was there, he risked being convicted by admitting knowledge
    and control.  I explained to him that at that point, the Federal Prosecutor
    could only prove that he was in the house at the time they knocked on the door
    and that by testifying, he would give evidence that he was there for a much
    longer period of time.  I explained to him that it did not matter if he had the
    keys in his hand or not when he was arrested because he was in the house in his
    pajamas and clearly staying for at least the night.  I further told him that if
    he admitted that the bedroom was the one that he stayed in, that he risked
    being convicted of the electrical diversion since a large group of wires were
    routed right through the closet.
I told him he should not testify but that
    it was his decision.
[Emphasis added.]

[30]

This advice cannot be said to have been
    unreasonable.  Indeed, it seems to us to have been sound.  As noted earlier,
    trial counsel was not cross-examined on her affidavit describing her meetings
    with the appellant.

[31]

In contrast, the appellants
    recollection of what was said in this connection was unclear at best, even
    allowing for his difficulties with the English language.  He conceded that
    trial counsel had recommended against his testifying because it would only make
    things worse.  He could not remember what he had said when trial counsel
    advised him not to testify.  He did not deny that she had told him it was his
    decision whether to do so or not.

Other Witnesses

[32]

The appellant also complains that trial
    counsel failed to call a neighbour of the premises and the landlord of the
    premises as defence witnesses.  In our view this decision fell within a
    reasonable range of decisions.  It is not clear what the evidence of these potential
    witnesses would have been, but at the very least it would not have detracted
    from the fact that the appellant was the sole occupant of a marijuana grow
    house at the time, wearing his pajamas at 5:30 in the afternoon.  Indeed, it may
    well have placed the appellant in the premises for a considerably longer period
    of time than the Crown was able to prove at that time.  This would not have
    assisted the appellant on the issue of knowledge and control, as trial
    counsels advice referred to above pointed out.

The Section 8 Application

[33]

At the outset of trial, counsel brought
    an application under s. 8 of the
Charter
to exclude the evidence
    obtained by the police through the unwarranted search of the premises just
    prior to the appellants arrest.  The trial began on a blended hearing with the
voir dire
on the
Charter
application being heard at the same time
    as the trial evidence.  After the evidence pertaining to the
voir dire
,
    defence counsel and the trial judge engaged in a discussion about the
Charter
application and the potential problem of showing the appellants status to
    bring it if he were not a resident.  The trial was adjourned for a period of
    time to enable defence counsel to consult with the appellant.

[34]

Trial counsel, the appellant and an
    interpreter had a discussion about the application as well as the discussion
    referred to above concerning the risks of the appellant testifying at trial.
    Upon resuming, defence counsel abandoned the
Charter
application.

[35]

The appellant alleges that trial
    counsel was negligent in not pursuing further information about his residency
    to enable him to establish standing and to proceed with the
Charter
application.  We do not agree.

[36]

As trial counsel points out in her
    affidavit, pursuing the s. 8 challenge would require the appellant to assert
    standing (based on residence) and on the issue of knowledge and control the
    [only] evidence adduced at that point put [the appellant] in the house for
    only a short period of time.  In addition, trial counsel had heard the Crowns
    evidence on the
voir dire
at that point, and was in a position to judge
    the likelihood of success on the application.  We note, as well, that even if
    the evidence obtained through the unwarranted search had been excluded, the
    police had returned and one a second search on the basis of a proper warrant.
    Presumably that search would have yielded the same results.

[37]

Evidence establishing that the
    appellant was in fact resident in the house would have made the inference that
    he had the necessary knowledge and control to establish the possession charge
    much more compelling.  In those circumstances, the decision to abandon the
Charter
application was a reasonable one.

Sentence

[38]

Although the appellant is a first-time
    offender, the 10-month sentence imposed by the trial judge falls within the
    range of sentences for similar offences.  This was a sophisticated marijuana
    grow operation, involving at least 343 marijuana plants.  See
R v. Doan
,
    2011 ONCA 626;
R v. Ha,
2008 ONCA 749; and
R. v. Nguyen
, 2006
    O.J. No. 1745 (C.A.). In any event, we are advised that the sentence has been
    served.

[39]

In the circumstances, we would not
    grant leave to appeal sentence.

DISPOSITION

[40]

In the result, the appeal against
    conviction is dismissed.  Leave to appeal sentence is refused.

R.A. Blair J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree J.C.
    MacPherson J.A.

Released: May 01, 2014


COURT OF APPEAL FOR ONTARIO

CITATION: Rajmohan v. Norman H. Solmon Family Trust, 2014
    ONCA 352

DATE: 20140505

DOCKET: C57972

Juriansz, Tulloch and Strathy JJ.A.

BETWEEN

Rajadurai Rajmohan

Plaintiff

and

Norman H. Solmon Family Trust
and Norman
    Harry Solmon

Defendants (
Appellant
)

and

Dilani Gunarajah and
Therese
    Selvamahal Edward Chandran as trustee of the Estate of Thambirajah Edward
    Chandran

Third Parties (
Respondent
)

Cameron J. Wetmore, for the appellant

Charles Sinclair, for respondent

Heard: April 28, 2014

On appeal from the order of Justice Victoria R.
    Chiappetta of the Superior Court of Justice, dated October 21, 2013.

ENDORSEMENT

[1]

The appellant appeals from the order of the motion judge dismissing its
    third party claim against the respondent on a motion for summary judgment. The
    appellant is the assignee of mortgages that the plaintiff granted to the late
    Norman Solmon. The respondent is the estate trustee of the late Mr. Chandran,
    who acted for Mr. Solmon on the mortgages. Mr. Chandran also acted for the
    mortgagors on the transaction. More than two years after the death of Mr.
    Chandran, the appellant filed its third party claim alleging solicitors
    negligence. The motion judge dismissed that claim on the basis that it was
    time-barred by s. 38 (3) of the
Trustee Act
, R.S.O. 1990, c. T.23.
    Section 38 (3) of the
Trustee Act
provides that an action against an
    executor or administrator of a deceased person shall not be brought more than
    two years after the death of the deceased.

[2]

Before the motion judge, the parties agreed that the
Trustee Act
would bar the appellants third party claim unless either of the doctrines of
    fraudulent concealment or special circumstances applied. The motion judge
    determined that neither of these doctrines applied. For the reasons that
    follow, we would dismiss the appeal.

A.

Fraudulent concealment

[3]

The motion judge carefully considered the rationale and requirements of
    the doctrine of fraudulent concealment as set out by this court in
Giroux
    Estate v. Trillium Health Centre
(2005), 74 O.R. (3d) 341 (C.A.), affg
    (2004), 69 O.R. (3d) 689 (S.C.). Justice Moldaver stated, at para. 29, that the
    doctrine prevents unscrupulous defendants who stand in a special relationship
    with the injured party from using a limitation provision as an instrument of
    fraud. As the motion judge observed in
Giroux
, three elements must be
    established to make out the doctrine:

a)

the defendant and plaintiff are engaged in a special relationship with
    one another;

b)

given the special or confidential nature of the relationship, the
    defendants conduct amounts to an unconscionable thing for the one to do to the
    other; and

c)

the defendant conceals the plaintiffs right of action (either actively,
    or as a result of the manner in which the act that gave rise to the right of
    action is performed).

[4]

In the circumstances of the present case, the motion judge was satisfied
    that the solicitor-client relationship between Mr. Solmon and Mr. Chandran was
    sufficient to qualify as a special relationship within the meaning of
Giroux
.
    She also found that Mr. Chandrans omissions were only apparent on a review of
    his file and so the concealment requirement was satisfied as well. However, she
    found the unconscionability requirement was not met because Mr. Chandans
    conduct was merely negligent and she would not characterize it as
    unconscionable.

[5]

On appeal, the appellant submits that Mr. Chandrans negligent conduct
    flowed from a breach of his fiduciary duties to Mr. Solmon, and the serious
    breach of his fiduciary duties rendered his conduct unconscionable. The
    appellant argues that Mr. Chandran breached his fiduciary duty to Mr. Solmon by
    failing to obtain his written consent to the dual retainer as well as to the
    advancement of the mortgage funds when the conditions stipulated in Mr.
    Solmons written instructions had not been satisfied.

[6]

The argument, while effectively advanced, founders on the motion judges
    findings of fact. The motion judge found that Mr. Solmon probably gave verbal approval
    to both the dual retainer and the advancement of the funds. Given these
    findings of fact, the motion judge was entitled to characterize Mr. Chandrans
    conduct in the circumstances as negligent, but not unconscionable.

[7]

Further, we do not accept the appellants alternative argument that
    these findings of fact reflect overriding and palpable errors by the motion
    judge. We cannot interfere with the inferences that the motion judge drew from
    the manner in which Mr. Chandran and Mr. Solmon had worked together in earlier
    transactions, and Mr. Solmons considerable experience in the lending business.
    The Supreme Court, in
Hryniak v. Mauldin
, 2014 SCC 7, has recently
    stressed that deference is owed to a motion judges findings of fact as well as
    findings of mixed fact and law made on summary judgment.

[8]

The appellant further submits that the delay it experienced in gaining
    access to Mr. Solmons client file constitutes a further breach of Mr.
    Chandrans fiduciary duties. Counsel argued that Mr. Chandran failed to obtain
    Mr. Solmons written consent before leaving the file with the solicitor who
    took over Mr. Chandrans practice upon his retirement. We agree with the motion
    judge that the delay in making the file available was occasioned by the new
    solicitors unilateral action. Neither Mr. Chandran nor the estate trustee
    caused that delay.

[9]

We are not persuaded that the motion judge made any reversible error in
    concluding the doctrine of fraudulent concealment did not apply in the
    circumstances of this case.

B.

Special circumstances

[10]

The
    applicable limitation period is prescribed by the
Trustee Act
and not
    the
Limitations Act, 2002
, S.O. 2002, c. 24, Sch. B. The appellant
    submits the doctrine of special circumstances continues to be available and
    permits the court to add parties to an existing action after the expiration of
    the limitation period. Thus, it argues that because the plaintiffs action was
    commenced within two years of Mr. Chandrans death, the court could allow it to
    institute its third party claim after the expiration of two years. We do not
    agree. A third party claim is itself an action under the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, s. 1.03(1). The doctrine of special
    circumstances, if it applies, does not allow a party to commence a third party
    claim after the expiration of a limitation period:
Joseph v. Paramount
    Canada's Wonderland
, 2008 ONCA 469, 90 O.R. (3d) 401, at para. 28.

C.

Conclusion

[11]

The
    appeal is dismissed. The respondents costs are fixed in the amount of $8000
    all-inclusive, as agreed by counsel.

R.G. Juriansz J.A.

M. Tulloch J.A.

G.R. Strathy J.A.