COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sinasac, 2015 ONCA 735

DATE: 20151030

DOCKET: C61029

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Sinasac

Appellant

Paolo Giancaterino and Marco Sciarra, for the appellant

Katherine Zanutto, for the respondent

Heard: October 28, 2015

On appeal from the sentence imposed on June 30, 2015 by
Catherine A. Kehoe
of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his sentence, principally on the ground that the
    trial judge exceeded the Crowns position without giving the appellant notice
    and an opportunity to make further submissions. The trial judge imposed a
    sentence of 15.8 months less pre-sentence custody. The Crown had asked for a
    sentence of either 13 or 14 months less pre-sentence custody. Thus the trial
    judge exceeded the Crowns position by either 1.8 or 2.8 months.

[2]

Our court has said that notice should be given as a matter of fairness
    when a trial judge proposes to exceed the Crowns submission by a significant
    amount. We do not consider even a 2.8 month increase to be significant.
    Moreover, from the trial record it does not appear that the appellant pleaded
    guilty in reliance on the Crowns position on sentence.

[3]

Even, however, if the trial judge ought to have given the accused notice
    she was contemplating jumping the Crowns position, in our view the sentence
    she imposed was fit. The aggravating considerations the Crown lists at para. 35
    of her factum fully justify the sentence. The appellant had multiple
    convictions for impaired driving, multiple breaches of court orders and a
    history of domestic violence.

[4]

Accordingly, for these brief reasons, though leave to appeal sentence
    is granted, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Stein, 2015 ONCA 720

DATE: 20151027

DOCKET: C60829

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Stein

Appellant

Richard N. Stern, for the appellant

Vanita Goela, for the respondent

Heard and released orally: October 20, 2015

On appeal from the sentence imposed on May 1, 2015 by
    Justice Marquis S. Felix of the Ontario Court of Justice.

ENDORSEMENT

[1]

On his plea of guilty to possession of powder cocaine for the purpose of
    trafficking, the appellant, a mature adult, was sentenced to a term of
    imprisonment of 12 months. He seeks a reduction in his sentence to a term of
    imprisonment that does not exceed six months less one day.

[2]

At trial, counsel for the appellant (not Mr. Stern), initially sought a
    non-custodial sentence, a period of probation with terms akin to those commonly
    included in a conditional sentence order, a disposition that was not legally available.

[3]

Trial counsel for the Crown initially sought a sentence of imprisonment
    in the range of 18 months to 2 years less one day. Later, Crown counsel changed
    her position to seek a custodial sentence of 12 to 18 months in a provincial
    reformatory.

[4]

Our authority to vary a sentence imposed at trial is not without limit.
    Absent an error in principle, a failure to consider a relevant factor or
    overemphasis on an appropriate factor, our intervention is limited to instances
    in which the sentence imposed is demonstrably unfit.

[5]

The appellant says that the trial judge made several errors that
    resulted in the imposition of an unfit sentence. Among others, he says the
    trial judge failed to give appropriate effect to the appellants post-traumatic
    stress disorder and the immigration consequences he would suffer, if sentenced
    to a term of imprisonment of six months or more.

[6]

He further submits that the trial judge misapprehended the applicable
    range of sentence, or at the very least, misapplied the range associated with
    crack cocaine, to a case that involved powder cocaine. In addition, he says
    that the trial judge failed to consider alternatives to incarceration.

[7]

We do not agree.

[8]

The trial judge, in careful and considered reasons, took into account
    the appellants post-traumatic stress disorder, as well as the collateral
    consequences of the sentence he was about to impose. His reasons reflect no
    error in the weight he assigned to those factors. The sentence he imposed was
    within the applicable sentencing range and reflects a proper blend of the
    governing sentencing objectives, principles and factors. We see no basis upon
    which to interfere.

[9]

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

David
    Watt J.A.

C.W.
    Hourigan J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tainsh,
    2015 ONCA 679

DATE: 20151007

DOCKET: C60353

Sharpe J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle A. Tainsh

Appellant

Kyle A. Tainsh, in person

Erin Dann, duty counsel

Michelle Campbell, for the respondent

Heard: October 5, 2015

ENDORSEMENT

[1]

This is an application for appointment of counsel pursuant to s.684 of
    the Criminal Code.

[2]

The appellant was convicted of five counts of robbery involving
    convenience stores and similar locations. All of the robberies were captured on
    video surveillance. The defence at trial conceded that the evidence could be
    applied across counts. There was no direct identification evidence but the
    trial judge convicted the appellant because of accumulation of factors
    including the following:

(1)

The appellant owned and drove a
    car similar to that shown in two of the videos.

(2)

The appellants build and height
    resembled that of the person that committed the robberies.

(3)

The appellant resided in an
    apartment complex where a cash tray of one of the robberies was found.

(4)

A number of items, personal
    clothing and two pellet guns were found in the appellants apartment, which
    corresponded to items worn and used by the robber.

[3]

The focus of the s.684 application is on the evidence that the person
    who committed the robberies wore black running shoes with white stripes. The
    appellant was wearing Adidas Gazelle shoes with white stripes when he was
    arrested. A police officer testified that he had owned several pairs of Adidas
    Gazelle shoes and that the shoes worn by the robber in the video surveillance
    were Adidas Gazelle shoes.

[4]

The submission is made that the trial judge erred in admitting this
    evidence without first qualifying the police officer as an expert.

[5]

The crown concedes that the financial criteria for a s.684 application
    is met but resists the application on the grounds that the appeal is without
    merit and that it can be fairly argued without the assistance of counsel.

[6]

Despite the very capable argument presented by Ms. Dann, I am not
    persuaded that a s.684 application should be granted. In my view, the issues in
    this appeal are relatively straight forward and of a nature that can be fairly
    and properly dealt with by this court, if it proceeds as an inmate appeal.

[7]

The point about the evidence of the officer in relation to the shoes
    will be, I think, difficult to sustain. Case law including
R. v. Graat
,
    [1982] 2 S.C.R. 819, and the decision of this court in
R. v. Hill
(1986), 32 C.C.C. (3d) 314, hold that evidence very similar to this can be
    given by a lay witness.

[8]

Moreover, in his reasons, the trial judge indicates that he made the
    finding that the shoes of the accused matched the shoes on the video,
    irrespective of the officers testimony, although he adds that he did find that
    evidence compelling.

[9]

Accordingly, the s.684 application is dismissed. Appeal to be argued
    November 30, 2015.

Robert J. Sharpe
    J.A.


WARNING

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

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

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

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

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

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

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

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

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

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

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

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tippett, 2015 ONCA 697

DATE: 20151019

DOCKET: C51754

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stanley James Tippett

Appellant

Alison Craig and Gabriel Gross-Stein, for the appellant

Alison Wheeler, for the respondent

Heard: March 19, 2015

On appeal from the convictions entered on December 23,
    2009 by Justice Bruce A. Glass of the Superior Court of Justice, sitting
    without a jury, and from  the sentence imposed on October 31, 2011, with
    reasons reported at 2009 CanLII 90055 and 2011 ONSC 6461.

Feldman J.A.:

[1]

The appellant was convicted of a number of offences arising out of the
    kidnapping and sexual assault of a 12-year-old girl. He was tried by a judge
    sitting without a jury. The appellant appeals his conviction on a number of
    grounds relating to the reasons of the trial judge including alleged
    misapprehension of some evidence and failure to advert to other evidence, some
    of which the appellant submits was potentially exculpatory.

[2]

Following his conviction, the appellant was designated a dangerous
    offender and given an indeterminate sentence. He also appeals from that
    sentence.

[3]

For the reasons that follow, I would dismiss both appeals.

THE CONVICTION APPEAL

Facts

[4]

R.S. was 12 years old in August 2008 when she attended a party with some
    older friends in Peterborough. After leaving the gathering, she and two other
    girls, L. and W., were trying to get downtown. They were all drunk, but R.S.
    was so impaired she could not stand and was lying in the middle of the street. L.
    went to arrange a ride.

[5]

The appellant came upon R.S. and W. between midnight and 1 a.m. on
    August 6. He moved R.S. off the road. After the appellants arrival, W.
    wandered off. L. returned and interacted with the appellant. L. and R.S. ended
    up in the appellants van and headed downtown. L. told the appellant that R.S.
    was only 12 years old. L. got out of the van at a park and the appellant told
    her he would take R.S. to get medical assistance.

[6]

At approximately 2 a.m., a neighbour near Courtice High School heard a
    girls voice screaming please, no. The neighbour called 911. Constable
    Harding of Durham Regional Police was dispatched at 2:21 a.m. and arrived at
    the school at 2:25 a.m. Another neighbour heard a scream between 2:00 and 2:20
    a.m. When the officer arrived, he saw a person come out of the adjacent woods.
    The person ignored the officers direction to stop, got into the appellants
    van, which was parked by the school, and drove off. Constable Harding chased
    the van and was able to see the driver for a few seconds. He later identified
    the appellant as the driver. He was unable to catch the van and was ordered to
    stop the chase at 2:29 a.m.

[7]

As the officers credibility and reliability in identifying the
    appellant is one of the grounds of appeal, I will deal in more detail with the
    facts surrounding the identification when I discuss that issue.

[8]

After the chase was called off, Constable Harding went back to the
    school, arriving at 2:35 a.m. At 2:47 a.m., R.S. stumbled out of the woods. She
    was unclothed from the waist down, the front of her shirt was torn, and she was
    soaked and muddy. She was also incoherent, crying and mumbling. She had red
    marks above her eye and around her mouth and abrasions on her limbs. At the
    hospital, she was found to have a toxic level of alcohol in her blood as well
    as some anti-depressants. Her jeans and underwear were found in Oshawa the
    following morning, not far from where the appellants van was also discovered. At
    trial, R.S. testified that she had no memory of the events that took place that
    night.

[9]

The appellant testified. His story was that once he dropped L. off at
    the park, he heard two men shouting, standing next to a black car. One of them
    used R.S.s name. The appellant thought they were her friends and drove over to
    them. One of the men banged on the car and told the appellant to open the door.
    When he opened it, one of the men got into the car and pulled out a knife,
    while the other opened the drivers side door and put a gun to the appellants
    face. While the man with the knife tried to wake up R.S., the other forced the
    appellant into the back of the van.

[10]

After
    a brief conversation about oxys, the men drove the van southbound on Highway 115.
    The appellant estimated that they drove for about 55 minutes before pulling over
    and asking the appellant for money. He gave them change from his pocket and
    pointed them to an emergency wallet he had in the van, which contained about
    $200. Then one of them grabbed the appellant, held him in a headlock, and threw
    him out of the van into a ditch. The men took off in the van, leaving the
    appellant behind. In the course of this interaction, the battery for his
    hearing aid was knocked out.

[11]

The
    appellant tried to call his wife on his cell phone but could not get a signal.
    He walked around for 45 minutes to an hour before connecting with his wife at
    2:46 a.m. Because he told her he was having trouble hearing, she told him not
    to call the police. As he said he was near train tracks, she reminded him about
    his uncle, who lived in Manvers beside the tracks.

[12]

The
    appellant followed the tracks and eventually got to Base Line Road, where he
    recognized Mikes Transmission auto-body shop. He called his wife, who called a
    taxi for him.

[13]

The
    taxi driver testified that he picked up the appellant at around 6 a.m. in the
    parking lot of Millwork on Base Line Road, which was several kilometres from
    where R.S.s clothes were later found. He testified that the appellant told him
    he had worked a night shift in Scarborough, that his van had been stolen two
    days earlier, and that a friend had given him a lift but his truck broke down
    and the friend had gone with the tow truck. The appellant denied this
    conversation with the taxi driver. The appellant directed the taxi to a street
    in Manvers, where he was dropped off at 6:25 a.m. He paid the fare in cash from
    his wallet. Two days later, the taxi driver called the police after recognizing
    the appellant from his picture on the news.

[14]

At
    his uncles house in Manvers, the appellant made some phone calls. One was to
    his girlfriend, another to his mother, and a third to the police. He told all
    three he had been carjacked, but he gave different details of the event and of
    the timing. He called the police at 7:40 a.m. An officer testified that the
    appellant told the police that he had been at his uncles since 1:00 a.m. and
    that he had not called earlier because he was upset. The appellant denied that
    he said this.

[15]

The
    appellant was arrested near his uncles home around 8:40 a.m. He was with his
    uncle in his uncles car. The appellant was wet and dirty with grass on his
    clothing. While being arrested, he asked to have his wallet and money turned
    over to his wife. His wallet contained $360. He also had a change purse with
    $13.65 and a set of keys that connected to a key fob found in his van.

[16]

That
    van was found by police on Browning Street in Oshawa at 3:40 a.m. Earlier that
    night, Josephine Coulson, a Browning Street resident, was woken by loud screeching
    noises, looked out her window and saw the van parked 3 or 4 houses from hers.
    She observed a man standing by the van, then leave the van, then return and
    leave again. Her ability to identify the man and the trial judges treatment of
    her evidence will be discussed in more detail below.

[17]

When
    the van was investigated, the police found the drivers side door unlocked with
    the keys in the ignition. There was vomit in the car and a pair of white
    sandals on the floor in front of the passenger seat. Two condoms knotted
    together were found on the back floor behind the drivers seat.

[18]

Forensic
    testing on the appellant and R.S. was inconclusive. No semen was found in R.S.s
    mouth, vagina or rectum. R.S.s DNA was found on the inside of both condoms, as
    was the DNA of at least one male, although this DNA was not suitable for
    identification comparison. Similarly, trace amounts of semen and saliva that
    were found on R.S.s underwear were not suitable for comparison, nor were small
    amounts of sperm cells from two people that were found on her tank top.
    Finally, traces of the appellants saliva were found in his underwear but no
    semen was found.

The trial judges reasons

[19]

The trial judge read his written reasons for conviction in court. They
    consisted of 53 paragraphs. The trial judge did not attempt to outline all of
    the evidence presented at the trial, which lasted ten days and involved nearly
    thirty witnesses. His approach was to describe the original meeting between the
    appellant and R.S., then to pose and address a number of questions regarding
    the events based on the totality of the evidence. He then made findings on the
    substantive elements of the offences with which the appellant was charged.

[20]

One
    question was How was [R.S.] found?  In addressing this question, the trial
    judge reviewed the evidence of Constable Harding, including Constable Hardings
    observations of the driver of the van and the driving during the police chase. The
    trial judge stated that when Constable Harding was driving beside the van, he
    saw the side profile of the driver and then the drivers full face when the
    driver turned toward him. The trial judge then said, The officer identified
    Stanley James Tippett as the driver noting that the physical features of his
    head and face were very distinctive.

[21]

Another
    question was Where was Stanley Tippett after being on Collison Avenue in
    Peterborough? The trial judge reviewed the appellants version of events from
    the carjacking to his arrival at his uncles home in Manvers. He also reviewed cell
    tower evidence of the movement of the appellants cell phone during the night.

[22]

The
    last question was How reliable is the identification evidence regarding Stanley
    James Tippett? Before answering this question, the trial judge rejected the
    appellants account. He based that conclusion on the cell phone/cell tower
    evidence; the identification by Constable Harding; and the unlikelihood of the
    appellants account of the carjacking, including, for example, that the
    appellant still had his cell phone and wallet with all his money when arrested.
    The trial judge also rejected the appellants story that he lost the battery to
    his hearing aid, based on his testimony that he could hear the 401 highway
    after being dropped off by the carjackers, and the evidence of the police
    officer who took the appellants 7:30 a.m. call that the caller had no trouble
    hearing him.

[23]

On
    the issue of identification, the trial judge noted that the appellants head
    has a distinctive look because of his Treacher Collins Syndrome. He found that
    a person would be more likely to remember the appellant as a result. He applied
    that reasoning to accept the identification made by the two girls who were
    originally with R.S. and saw the appellant, as well as to Constable Harding and
    the taxi driver.

[24]

The
    trial judge concluded that the Crown had proven beyond a reasonable doubt that the
    appellant was the driver of the van throughout the events of the night and he
    was the man who took the taxi from Baseline Road. He found that the appellants
    testimony did not raise a reasonable doubt about whether he was the driver
    throughout.

[25]

The
    trial judge then made his findings on the substantive issues relating to the
    counts listed on the appellants indictment, which included kidnapping, sexual
    assault, sexual interference, and the driving offences. As the
actus reus
of each of the offences had been made out, the major issue was who committed
    the offences. The trial judge found that it was the appellant who was the
    perpetrator of all of the offences. The condoms in the van had R.S.s DNA on
    them. It was the appellants van and he was the driver of the van throughout.
    Therefore it was the appellant who committed all of the offences against R.S. and
    the dangerous driving.

Issues on the conviction appeal

[26]

The
    appellant states that the trial judge misapprehended the evidence on two key
    issues: the identification of the appellant and the DNA evidence. He submits
    that the trial judge misapprehended or ignored three aspects of the
    identification of the appellant: the evidence of Constable Harding, the cell
    tower evidence and the evidence of Josephine Coulson. The appellant submits
    that these misapprehensions or omissions, taken alone or together, are enough
    to merit a new trial.

Analysis

[27]

A
    trial judge is required to consider all of the evidence in relation to the
    ultimate issue of guilt or innocence. However, as the Supreme Court recently
    affirmed in
R. v. Vuradin,
2013 SCC 38, [2013] 2 S.C.R. 639, at para.
    17, trial judges are not obliged to discuss all of the evidence on any given
    point or answer each and every argument of counsel. While the failure to
    consider all of the evidence is an error of law, unless the reasons
    demonstrate that this was not done, the failure to record the fact of it having
    been done is not a proper basis for concluding that there was an error of law
    in this respect:
R. v. Morin
, [1992] 3 S.C.R. 286, at p. 296.

[28]

The
    overall thrust of the appellants submissions was that the trial judge
    misapprehended or failed to advert to central evidence that the appellant
    relied on at his trial as exculpatory. The appellant acknowledged that the
    trial judge was not required to refer to every piece of evidence in his reasons
    but submitted that the trial judge did not sufficiently explain how he
    reconciled his findings with the appellants evidence or theory of the case.

[29]

I
    would not accept this submission. While the trial judges reasons were concise,
    they did not demonstrate a failure to consider all of the evidence going to the
    ultimate issue,
nor did they demonstrate a
material
misapprehension of the evidence
which played an essential part in the reasoning process resulting in the
    convictions
.

Misapprehension of the identification evidence

(1)

Identification of the driver by Constable Harding

[30]

Constable
    Harding identified the appellant as the driver of the van based on having seen
    him for several seconds during the pursuit of the van on August 6. The
    appellants submission is that the trial judges reasons were not responsive to
    the credibility and reliability issues emerging from Constable Hardings
    identification of the appellant as the driver of the van. He also submits that
    the trial judge effectively failed to apply the necessary caution to stranger
    identification and the frailties associated with it.

[31]

Constable
    Harding described how he had two chances to see the drivers face when he was
    chasing him. Besides facial hair, he noticed that the drivers face was very
    distinct in its features and his eye placement was not normal. However, he did
    not write down these observations of abnormality in his notes at the time. The
    way he later identified the appellant was by recognizing him from his picture
    in the newspaper. He testified that there was no doubt. It was unmistakeable
    the  the appearance was that of the party I did see in the car. Constable
    Harding also identified the appellant in a photo line-up, though none of the
    other 11 people in the line-up had facial deformities.

[32]

In
    cross-examination, Constable Harding was challenged on the fact that his notes
    did not say that he got a good look at the appellant the second time he pulled
    up alongside him. He wrote that the driver was heavy-set, a white male, late
    30s or early 40s, darker colour, wearing a white or yellow shirt, and had
    some facial hair. He made no observation of any facial abnormality. Also, in
    the audio recording of his conversation with headquarters during the chase,
    Constable Harding made no mention of facial deformity. He said he only had a
    glimpse of the driver and that his ability to identify him was limited.

[33]

When
    challenged about how certain he was about his identification of the appellant
    in light of his contemporaneous descriptions and notes, Constable Harding
    maintained that because of the distinctiveness of the appellants facial
    structure and eye placement, which he had never seen on another person, he was
    100 percent sure about his identification. He maintained that he was able to
    identify the driver from that night because of the drivers abnormal look,
    although he did not record it.

[34]

In
    dealing with Constable Hardings identification, the trial judge stated at paras.
    18 and 38:

The officer had noted that the person was heavier set with a
    white t-shirt.  He determined that the driver of the van was a male person.

I am satisfied that the witnesses who have identified Mr.
    Tippet have not organized their thoughts in an unreliable manner to identify
    the defendant.  In other words, there has not been collusion.  Mr. Tippett has
    a more unique head structure resulting from Treacher Collins Syndrome.  As one
    officer said over the police radio, when Constable Harding would see Mr. Tippett,
    he would know him.  I am persuaded that the head structure of Mr. Tippett is
    different than most persons so that when an individual saw a person affected by
    the Syndrome, the viewing person would be more likely to remember the person.
    This applies to [W., L.], Constable Harding, and [the taxi driver].  Their
    identification is not coincidental.

[35]

The
    appellant submits that the trial judge misapprehended the problem with the
    evidence by referring to collusion, which was not alleged, and by failing to refer
    to the cross-examination or to address the fact that Constable Harding did not
    refer to any facial deformities of the driver until several weeks after the
    offences occurred, despite the fact that they are very distinctive.

[36]

I
    would not give effect to this submission. The trial judges reasons were not
    lengthy and detailed. Rather, he covered the issues and stated his conclusions
    on them. Identification of the perpetrator was the only live issue before him.

[37]

The
    appellant gave an exculpatory account of what occurred. The trial judge had to
    decide if the appellants account raised a reasonable doubt and, if not,
    whether the Crown evidence proved beyond a reasonable doubt that the appellant
    was the perpetrator. The trial judge specifically rejected the appellants account
    as unbelievable.

[38]

The
    trial judge then accepted the identification evidence of all of the people who
    were close to the appellant and saw his face, including R.S.s friends, the
    taxi driver, and Constable Harding. He did so based on the distinctiveness of
    the appellants facial features, and adverted to the issue of stranger
    identification by noting that a person viewing such features would be more
    likely to remember them.

[39]

The
    appellant appears to be raising two objections on this issue. The first is
    inadequacy of the reasons. However, the reasons explain sufficiently why the
    trial judge accepted the identification by Harding. He was not required to
    review and discuss each potential problem when his overall conclusion addressed
    the result he had reached having heard the evidence: see
R. v. Braich,
[2002]
    1 S.C.R. 903, 2002 SCC 27
,
at paras.
    38-42.

[40]

The
    second objection appears to be that in light of Constable Hardings initial
    failure to mention the appellants distinctive features, together with the
    problems with stranger identification, the trial judge should not have accepted
    his evidence. To the contrary, the trier of fact decides both the credibility
    and the weight to be given to eyewitness identification evidence. The trial
    judge is presumed to know the law. He was entitled to accept Constable
    Hardings identification for the reasons he gave.

[41]

The
    trial judges reference to collusion was a misstatement, as the appellant
    correctly points out that collusion among witnesses was not alleged. However,
    the context of the paragraph indicates that the trial judges intent was not to
    refer to collusion among witnesses but rather, as he had explained, to dispel
    any concern that the witnesses might have, in their own minds, unreliably
    identified the appellant.

(2)

The cell tower evidence

[42]

The
    appellant submits that the trial judge misapprehended the significance of the
    evidence regarding the cell towers and the tracking of the appellants cell
    phone in relation to his account of his whereabouts throughout the night.

[43]

Dealing
    with the cell tower evidence, the trial judge stated at para. 35 of his
    reasons:

I find that Mr. Tippetts account of the evening is
    unbelievable.  He is the one who had the cell phone from which there was
    considerable communication during the course of the night.  The cell phone
    tower maps entered into evidence display a path from Peterborough, on into
    Oshawa and in the Courtice area.  There is no suggestion that another person
    used this cell phone.  He could have made the calls and travelled through the
    pattern of the phone towers if he were driving the van for much of the night.
    He could not have walked to all of those areas.  His explanation for this
    conflict in his evidence is that cell signals can bounce in a variety of
    directions so that they are not reliable.  For Mr. Tippett to be correct, there
    would have had to be many unusual phone recordings for cell phone towers.  I
    find that Mr. Tippetts suggestion is too far-fetched.  The defendant was in
    the presence of [R.S.] at 1:00 a.m. and he was seen at the Courtice High School
    at 2:20 a.m. when Constable Harding saw him.  Only minutes after Constable
    Harding saw Mr. Tippett at the school, [R.S.] was observed in a state of
    considerable undress.

[44]

The
    appellant submits that on both his theory and the Crowns theory of the case,
    he was walking for part of the night. He submits that the trial judges reasons
    indicate a misunderstanding of the two theories and thus the meaning of the
    cell tower evidence.

[45]

I
    do not accept the suggestion that the trial judge misunderstood this evidence.
    On all accounts, the appellant ended up in Oshawa on foot where he took a taxi
    to his uncles house. The trial judge was addressing and rejecting the
    appellants suggestion in cross-examination that he was dropped by the carjackers
    in an area with no cell coverage and that the signals bounced to towers where
    he was not.

(3)

The trial judges failure to advert to the evidence of Josephine Coulson

[46]

The
    appellant also submits that the trial judges deficient treatment of Constable
    Hardings identification was compounded by the failure to make reference to the
    potentially exculpatory identification evidence of Josephine Coulson.

[47]

Ms.
    Coulson, an 82-year-old woman who lived in Oshawa, testified that she was woken
    in the early morning of August 6 by a screeching noise, which caused her to get
    up and look out her bedroom window. She did not recall whether she put on her
    glasses. She saw a van across the street, about three houses away, and a man
    standing by the drivers side door. The man looked in the back of the van, he
    had a plastic bag in his hand, he appeared to lock the doors because the lights
    flashed, he then went north, then came back, he opened the car doors  and
    looked in both sides, then walked away again.

[48]

Ms.
    Coulson testified that the man wore a light coloured shirt and no hat. She was
    equivocal about the colour of his trousers, testifying, I think they were
    light coloured, too, but I cant remember.  Ms. Coulson said she had a side
    view of the man. She stated that though there were two street lights outside,
    two large maple trees blocked their light. She went back to bed and was awoken
    again later by police cars.

[49]

Ms.
    Coulson saw only one man and did not get a good look at his face. In an
    interview with police, she was asked if she could identify the man, but she said
    she was unable to do so because what she had seen was too far away.

[50]

In
    cross-examination, she acknowledged that she had told a police officer that she
    thought the person she saw was fairly tall, but then she said that because she
    is short everyone seems tall. She also agreed that she had said he had a
    muscular build and that she had said that the man she saw did not resemble the
    picture shown on television of the appellant. However, she qualified that
    observation by saying that the light wasnt good so it was hard to say. She
    also said the man she saw did not have a dark moustache as the picture did.
    Similarly, she stated that in the picture on television, the mans hair looked
    dark, while she thought the man she saw had light hair, but again she qualified
    that by saying it was hard to really distinguish.

[51]

This
    evidence was potentially exculpatory had it been accepted by the trial judge
    for that purpose. However, the failure of the trial judge to mention it, in the
    context of these reasons, can only mean that the witnesss uncertainty about nearly
    every aspect of what she may or may not have seen was not of any assistance to
    the trial judge. On that basis, it was not necessary for the trial judge to
    specifically state in his reasons that he was giving no weight to her evidence
    on identification. As noted above, unless the reasons demonstrate that [a
    consideration of all the evidence in relation to the ultimate issue] was not
    done, the failure to record the fact of it having been done is not a proper
    basis for concluding that there was error in law in this respect:
R v.
    Walle,
2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46, citing
R v.
    Morin
at p. 296
.

[52]

In
    oral argument, counsel also suggested that because Ms. Coulson did not see
    flashing lights the second time the man left the car, if that indicated that
    the car did not lock the second time, then there might have been a second
    person left in the car. In my view, that suggestion is no more than speculation
    and the trial judges failure to advert to it is no error.

Misperception of the DNA evidence

[53]

The
    Crown concedes that the trial judge erred when he stated that R.S.s bra, her
    tank top and her undershirt tested positive for her DNA alone. In fact, a very
    small amount of sperm from two donors was found on her tank top. The appellant
    submits that this represented a serious misapprehension of the evidence by the
    trial judge because finding sperm from two men was consistent with the
    appellants car-jacking story.

[54]

Although
    there was an error by the trial judge, in the context of the evidence in this
    case I do not agree that the error had significance. When examined, the
    evidence could not support the appellants story.

[55]

The
    number of sperm cells was very small, there was no seminal fluid, and there
    were no sperm cells or seminal fluid on R.S.s other top clothing consisting of
    her bra, a green t-shirt, and a black hoodie. In those circumstances, the sperm
    cells on the tank top were unlikely to be reflective of recent sexual contact
    because the sperm would have to have landed only on the one piece of clothing
    and not the others, and the seminal fluid and the rest of the sperm cells from
    two men would all have to have been washed away by wetness or vomit. There was another
    explanation given in evidence, which the trial judge did advert to in respect
    of the unidentifiable semen on R.S.s underwear, which was that semen could be
    transferred from clothing to other clothing in the laundry.

[56]

The
    trial judge rejected the appellants car-jacking story as incredible and
    far-fetched. He viewed it as the appellants one way out of the problem he
    faced, which was that he was known to have picked up R.S. in the same van that
    drove away from the place where R.S. was found by police. As the trial judge
    noted, at para. 36, it made no sense that the two alleged carjackers, having
    kidnapped the appellant at knifepoint and gunpoint, would subsequently allow
    him to leave the van unharmed together with his wallet and cell phone. In this
    context, the addition of the sperm cell evidence would not have raised the
    carjacking story to the level of a reasonable doubt: see
R. v. S.J.
, 2015
    ONCA 97, at paras. 71-98, leave to appeal refused [2015] S.C.C.A. No. 146; and
R.
    v. Kirkham
, 2013 ONCA 437, at para. 7.

Conclusion on the trial judges reasons

[57]

The
    trial judges reasons were succinct, but they dealt with the issues in the case
    and allow for meaningful appellate review:
R. v. R.E.M.
, 2008 SCC 51,
    [2008] 3 S.C.R. 3, at para. 57. None of the objections raised by the appellant
    amount to legal error. Even if any of them had amounted to legal error, this is
    a case where it would be appropriate for the court to apply the curative
    proviso in s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, which allows convictions to be upheld despite errors of law, provided the
    error has not resulted in a substantial wrong or miscarriage of justice. As in
R.
    v. Rawn
, 2015 ONCA 396, the Crowns evidence was overwhelming, and like
    the Steve as driver story in that case, the appellants version of events was
    completely unbelievable.

THE SENTENCE APPEAL

Facts and decision below

[58]

The
    appellant was convicted of the following offences arising out of the abduction
    and sexual assault of R.S.: sexual assault, sexual interference, kidnapping,
    dangerous driving, failure to stop for police, breach of recognizance and
    breach of probation.

[59]

Following
    the convictions, the Crown filed its notice that it would seek a dangerous
    offender designation under s. 753 of the
Criminal Code
. The evidence
    at the dangerous offender hearing focused on two assessments of the appellant:
    one from Dr. Klassen for the Crown and one from Dr. Gojer for the appellant.

[60]

The
    trial judge found the appellant to be a dangerous offender under ss.
    753(1)(a)(i), (ii) and (b). He had been convicted of a serious personal injury
    offence constituting a threat to the life, safety or physical or mental
    well-being of others. The judge was satisfied that there was evidence
    establishing a pattern of behaviour by the appellant, including his conduct
    with R.S., that showed a failure to restrain his behaviour.  He found there is
    a likelihood of causing death or injury to others or inflicting severe
    psychological damage to others through failure in the future to restrain his
    behaviour, as well as a likelihood of causing injury, pain or other evil to
    other persons through failure in the future to control sexual impulses. The
    appellant also presented a pattern of persistent aggressive behaviour showing a
    substantial degree of indifference to reasonably foreseeable consequences to
    others of his behaviour.

[61]

Having
    found the appellant to be a dangerous offender, the trial judge had to determine
    the appropriate sentence. Once a dangerous offender finding has been made, a
    judge is obliged to impose an indeterminate sentence unless there is a
    reasonable expectation that a determinate sentence with or without a long-term
    supervision order would adequately protect the public against the commission
    by the offender of murder or a serious personal injury offence:
Criminal
    Code
, s. 753(4.1).

[62]

Relying
    on the evidence adduced during the dangerous offender hearing, including the
    evidence from Dr. Klassen and Dr. Gojer, the trial judge found that he was
    obliged to impose an indeterminate sentence. Based on the appellants history
    of violence, his manipulation of women and girls, and his psychiatric
    diagnoses, his risk of reoffending was significant. Dr. Klassen said this risk was
    moderately high while Dr. Gojer said it was moderate.

[63]

Both
    doctors expressed concern about the appellant living in the community. He would
    need to take anti-androgen medication to reduce his sex drive. He would also
    need a number of other treatments and tight supervision. Dr. Gojer reported
    that the appellant has a personality disorder with anti-social traits. The
    trial judge summarized his evidence:

[
54
] Dr. Gojer reported that Mr. Tippett has
    a personality disorder with antisocial traits. The defendants personality is
    based on deceit, lying, manipulative behaviours leading to aggressive and
    intrusive behaviours including sexually aggressive acts. Mr. Tippett seeks
    attention, affection and sexual gratification.

[
55
] The tendency to lie constantly is a
    concern. He told Dr. Gojer that he would take treatment for his lying and with
    some hesitation he would take sex drive reduction medication.

[64]

The
    appellant had told Dr. Gojer that he would take treatment, but he did so
    reluctantly. The trial judge rejected these assurances because of the
    appellants tendency to lie. He concluded, at para. 67:

I am left with the impression that it is wishful thinking to
    suggest that Stanley James Tippett could receive treatment that would manage
    his risk within the community in a way that could protect the public consistently
    in the future. See
R. v. G.L.

2007 ONCA 548 (CanLII)
,
    [2007] O.J. No. 2935 and
R. v. Jones
[2008] O.J. No. 2067.

[65]

Because
    there was no definite time frame within which the appellant could be treated,
    his risk of re-offending would continue for an indefinite time, which was not
    good enough for a long term supervision process.

[66]

The
    trial judge observed that if the appellant were on long term supervision and
    did not take his recommended medication, the remedy would be charging him with
    a breach. After serving any sentence imposed, he would resume serving his
    sentence in the community. By contrast, if he did the same while on parole from
    an indeterminate sentence, his parole could be revoked until a new release plan
    that would protect the public could be organized.

[67]

The
    appellant also stated in court at the end of the sentencing hearing that he
    would follow any direction by the court. However, the trial judge rejected this
    assurance as a final grasp at avoiding a harsh sentence. Dr. Gojer had stated
    that the appellant was very reluctant to take the anti-androgen medication. The
    trial judge concluded that the appellant would say whatever he thought he
    needed to say in order to obtain his release.

[68]

The
    trial judge noted that the appellant had completed treatment programs while
    serving previous penitentiary sentences, yet he had committed the more serious
    predicate offence of sexual assault and kidnapping of a 12-year-old girl while
    still on probation.

[69]

The
    trial judge concluded:

[75] A dangerous offender proceeding is one focused on
    protection of members of society. If a sentence less than an indeterminate sentence
    can protect society, the court should make such a sentence. However, that is
    not the conclusion I can reach with Stanley James Tippett. Society can only be
    protected and not at risk if he is sentenced to an indeterminate sentence. No
    doubt, the predicate offences would draw a lengthy penitentiary sentence. Such
    a sentence followed by a long-term supervision order would cover many years,
    but coupled with that would be a need for Mr.Tippett to take anti-androgen
    medication. Both Dr. Klassen and Dr. Gojer noted that Mr. Tippett would have to
    be using this medication if he were to return to living in the community, but I
    dont believe Mr. Tippett when he says he would follow any direction given by
    the court. If that were to occur, the public would be at considerable risk.

[
76
] The defendant has demonstrated a pattern
    of behaviour that is violent. A serious personal injury offence when kidnapping
    a young girl and taking her a considerable distance from her home community
    infers an intention to avoid detection in Peterborough. Removing much of her
    clothing in the midst of the night and being stopped when police responded to a
    citizen calling after hearing a cry for help adds to the serious nature of his
    conduct. Mr. Tippett is likely in the future to demonstrate a failure to
    control his sexual impulses. He is one who is a prime person to cause injury,
    pain or other evil upon others.

Issue and analysis

[70]

On
    appeal, the appellant asserts that in concluding that he could not trust the
    appellants assurances about taking anti-androgen medication, the trial judge
    failed to take into consideration the appellants history of compliance with
    counselling while in penitentiary on a number of previous occasions in 2006 and
    2008.

[71]

There
    is no merit to this submission. The trial judge specifically referred to the
    fact that the appellant had participated in treatment programs before and had
    gone on to escalate his violent behaviour when he was released. The trial judge
    considered the possibility of a long term supervision order and how it could
    operate in the appellants case. He gave full and careful reasons for his
    conclusion that the appellant could not be supervised in the community and why
    compliance with medication could not be assured in the appellants case: the
    appellant was reluctant to take the medication, and his assurances that he
    would take it were unreliable. The finding of unreliability was based not only
    on the appellants tendency to lie, but also on his escalated violent behaviour
    following his programs in penitentiary.

[72]

The
    trial judges assessment and conclusion is entitled to significant deference on
    appeal, absent clear legal error, clear and material factual error, or an
    unreasonable finding:
R. v. Sipos
,
    2014 SCC 47, at paras. 23-27;
R. v. Simon
, 2008 ONCA 578, at para. 90
. I see no
    error in his analysis or his conclusion.

CONCLUSION

[73]

I
    would dismiss both the appeal against conviction and the appeal against sentence.

Released: AH Oct 19, 2015

K. Feldman J.A.

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

I agree. Paul
    Rouleau JJ.A.


WARNING

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

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

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

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. W.Y.,
    2015 ONCA 682

DATE: 20151009

DOCKET: C59782

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

W. Y.

Respondent

Roger Shallow, for the appellant

Michael Dineen, for the respondent

Heard: October 5, 2015

On appeal from the sentence imposed by Justice J.W. Bovard
    of the Ontario Court of Justice, dated November 27, 2014.

ENDORSEMENT

[1]

Following his plea of guilty, the respondent was sentenced to five
    years imprisonment for having committed a number of sexual offences against his
    14-year-old daughter: sexual touching (1 count); invitation to his daughter to
    touch his body with her mouth for a sexual purpose (2 counts); and sexual
    intercourse (1 count).  The offences took place between June 18, 2013 and July
    30, 2013.

[2]

The Crown seeks leave to appeal, and, if leave is granted, requests that
    a sentence of at least 8 years be imposed.

[3]

The sentencing proceeded by way of an agreed statement of facts from
    which we have extracted the following summary. After being unknown to his
    daughter, the respondent had contact with her in April 2013 for approximately a
    week when she and her mother visited him. At the end of the school year, the mother,
    who was having difficulty with her daughter, reached out to the respondent,
    hoping that a relationship with him would help the daughter improve her
    lifestyle choices. The daughter left her home in the United States to live with
    the respondent for the summer.

[4]

Within days, the respondent initiated sexual activity with his daughter.
    He told her to think of him as her boyfriend, and not her father. Over the next
    approximately six-week period, the respondent had intercourse with his daughter
    nearly daily. He also had his daughter perform oral sex on him twice and once
    took pictures of her while making her pose naked.

[5]

At the end of this period, the respondent, an alcoholic, took his
    daughter to meet her older, half-sister.  Everyone was drinking. The younger
    daughter drank too  to the point of vomiting. The respondent and his younger
    daughter stayed overnight, sleeping on the living room couch. During the night,
    the older daughter went into the living room to check on her younger
    half-sister. She saw her father performing oral sex on her half-sister and
    digitally penetrating her. She contacted the police, who arrested the
    respondent.

[6]

The Crown submits that the sentencing judge erred in principle by
    misidentifying the range of appropriate sentences for the sexual offences
    committed by the respondent and, as a result, imposed a sentence that was
    manifestly unfit. In particular, the Crown argues that the sentencing judge found
    that he was bound by the sentencing range of three to five years identified in
R.
    v. B.(J.)
(1990), 36 O.A.C. 307 (C.A.) and that he erred in doing so. The
    Crown submits that the correct range was identified by this court in
R. v.
    D.(D.)
(2002), 58 O.R. (3d) 788 (C.A.). In that case, Moldaver J.A. held
    that adult offenders, in a position of trust, who sexually abuse innocent young
    children on a regular and persistent basis over substantial periods of time can
    expect to receive mid to upper single digit penitentiary terms.  The Crown
    relied on both decisions in its sentencing submissions.

[7]

In addition, the Crown submits that the sentencing judge failed to give
    sufficient consideration to the fact that the respondent was a repeat offender.
    He had two prior convictions for sexual offences against children: one in 1987
    for sexually assaulting a 9-year-old girl he was babysitting, on two occasions,
    and one in 1988, again for sexually assaulting a 9-year-old girl he was
    babysitting. In both cases, the respondent touched the victim's vagina.

[8]

We are not persuaded that the sentencing judge felt bound to impose a
    sentence that did not exceed five years. Thus, in our opinion he did not err in
    principle. He thanked counsel for the authorities they submitted because it
    gave him a "good idea of the range of sentences that the courts consider
    in cases such as this one." The sentencing judge described
B.(J.)
as "the most helpful case". In
B.(J.)
, the court noted that
    a number of factors will determine the appropriate length of sentence within
    the range for a sexual assault. These include the age of the victim, the
    duration and frequency of the sexual assaults, the criminal record of the
    offender, the effects on the victim and the presence or absence of collateral violence
    or remorse. The court also noted that the ordinary range will be exceeded when
    the circumstances cry out for a more severe penalty.

[9]

While the sentencing judge did not specifically advert to
D.(D.)
in his reasons, he imposed a sentence at the bottom of the range identified in
    that case. In
D.(D.)
, a
t
    para. 44, Moldaver J.A. (as he then was) wrote:

[W]hen adult offenders, in a position of trust, sexually abuse
    innocent young children on a regular and persistent basis over substantial
    periods of time, they can expect to receive mid to upper single digit
    penitentiary terms. When the abuse involves full intercourse, anal or vaginal,
    and it is accompanied by other acts of physical violence, threats of physical
    violence, or other forms of extortion, upper single digit to low double digit
    penitentiary terms will generally be appropriate. Finally, in cases where these
    elements are accompanied by a pattern of severe psychological, emotional and
    physical brutalization, still higher penalties will be warranted.

[10]

A
    brief outline of the facts in these two cases is of assistance in appreciating how
    they compare with the instant case. In
B.(J.)
, the accused commenced
    having sexual intercourse with his stepdaughter when she was only six years
    old. The abuse continued weekly, and sometimes more frequently, until she was
    fourteen. The victim was threatened with punishment if she did not comply and
    there was an instance of violence, apart from the sexual assaults. The
    accused's criminal record included a charge of attempted rape of an eight-year-old
    girlfriend of the victim. The accused's sexual abuse of his stepdaughter persisted
    after he had served his sentence for attempted rape. Because of this, the
    appellants counsel conceded that a sentence beyond the usual five-year range
    was required. The court upheld the sentence of eight years imposed by the sentencing
    judge.

[11]

In
D.(D.)
, the accused coerced four boys  ranging in age from 5 to 8
    years  to engage in all manner of sexual activity for periods of time ranging
    from two to seven years. The accused stood in a position of trust towards the
    boys. He employed violence, threats of violence and extortion. In one instance,
    he held a boy over his thirtieth-floor balcony and warned him that he would be
    thrown off if he complained to anyone. The court upheld a sentence of nine
    years and one month.

[12]

In
    this case, the appellants conduct was insidious. He abused his teenage
    daughter who had come to him for help. The acts also included full sexual
    intercourse, nearly daily. His final assault on his daughter in the home of his
    older daughter, after permitting her to consume alcohol to the point where she vomited,
    is particularly disturbing. Further, the abuse stopped only because his older
    daughter caught him. That said, without minimizing the appellant's conduct
    towards his troubled and vulnerable daughter, in the context of cases involving
    sexual abuse perpetrated by persons in a position of trust, these offences
    occurred over a relatively compact period of time. The undeniably major breach
    of trust is attenuated to some extent, relative to other cases of sexual abuse
    by a parent, by the fact that the respondent really had no prior relationship
    with his 14-year-old daughter before she came to live with him. The respondent
    did not employ physical violence, threats of violence or extortion. He pled guilty
    and expressed remorse and a desire for treatment. The sentencing judge was
    alive to these circumstances, as well as the fact that the respondents related
    criminal record was very dated.

[13]

In
R. v. P.M.
,
2012 ONCA
    162, 282 C.C.C. (3d) 450, Rosenberg J.A., writing for the majority, after a
    thorough analysis of the case law, recognized the upward trend in the
    sentencing of sexual offenders in a position of parental trust and adopted and
    reasserted the principles set out in
D.(D
.)
. He explained that
B.(J.)
must now be read with
D.(D.)
. At para. 46, he wrote:

[T]he court signalled in
D.(D.)
that the sexual abuse
    of a child will attract lengthy penitentiary sentences. In my view, where a
    father has committed repeated acts of incest with his daughter over many
    months, as in this case, it will be highly unusual for the court to impose a
    penitentiary sentence of less than five to six years. Such a range is more
    consistent with this court's decision in
D.(D.)
and is also more
    consistent with amendments to the
Criminal Code
since
B.(J.)
was decided.

[14]

While
    in our view, the sentence imposed was at the bottom of the range, we are not
    persuaded that the individual circumstances of the case render it manifestly
    unfit.

[15]

We
    therefore grant leave to appeal but dismiss the appeal.

Alexandra
    Hoy A.C.J.O.

K.M.
    Weiler J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ramdial v. Davis, 2015 ONCA 726

DATE: 20151029

DOCKET: C59917

Gillese, van Rensburg and Miller JJ.A.

BETWEEN

Chandra
    Ramdial

Applicant (Appellant)

and

John Frederick Davis, by his Litigation Guardian
    Richard John Davis

Respondent (Respondent)

Uma Kancharla, for the appellant

Erin Melnyck, for the respondent

Heard: October 6, 2015

On appeal from the order of Justice J. Christopher Corkery
    of the Superior Court of Justice, dated December 15, 2014.

Gillese J.A.:

[1]

Parties enter into a negotiated settlement agreement to resolve all
    claims arising from the breakdown of a marriage. Both sides are represented by
    legal counsel throughout. Financial disclosure precedes the negotiation process
    but without formal valuations of certain properties. In the absence of formal valuations,
    could the motions judge determine whether the settlement agreement was in
    substantial compliance with the general objectives of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.)? That is the critical question raised on this
    appeal.

[2]

In my view, the answer to that question is yes. As a result, I would
    dismiss this appeal.

BACKGROUND

[3]

Ms. Ramdial (the appellant or Ms. Ramdial) and John Frederick Davis
    (the respondent) were married on September 3, 1995. They separated in early 2012.
[1]
At the time of separation, Ms. Ramdial was 67 years of age and the respondent
    was 81. Both were retired. Based on their financial statements, it appears that
    the appellants annual income was approximately $22,000 and the respondents
    annual income was approximately $40,000. They have no children together, although
    each has adult children from prior marriages. The parties jointly own the
    matrimonial home, which is located in Newcastle, Ontario.

[4]

Since the time of separation, Ms. Ramdial alone has lived in the
    matrimonial home. The respondent has continued to pay the monthly mortgage,
    property taxes and house insurance premiums on the matrimonial home. Since
    April 2012, the respondent has lived in a full-care nursing home, the cost of
    which has exceeded his annual income. He has borne full financial
    responsibility for the expenses of the nursing home.

[5]

In 2010, the respondent had triple bypass surgery and was very ill. After
    he was discharged from the hospital until January 14, 2012, Ms. Ramdial had
    complete control over the respondents pension income, personal savings and
    other assets that he had acquired prior to the marriage (the asset control period).

[6]

In August 2012, the respondent was declared incapable of managing his
    property pursuant to s. 6 of the
Substitute Decisions Act
, S.O. 1992,
    c. 30.

[7]

Ms. Ramdial subsequently commenced matrimonial proceedings related to
    the breakdown of her marriage to the respondent. In those proceedings, she
    sought spousal support and other financial relief.

[8]

Richard John Davis (Mr. Davis) is the respondents son. In August
    2013, the court ordered Mr. Davis to be his fathers litigation guardian. The court
    order also required the parties to make certain financial disclosure.

[9]

In addition to being his fathers litigation guardian, Mr. Davis is the
    designated continuing power of attorney for his father.

[10]

Prior
    to being designated as his fathers attorney, Mr. Davis had concerns about
    whether Ms. Ramdial mismanaged his fathers income and assets during the asset
    control period. After being so designated, Mr. Davis investigated his fathers
    finances and concluded that his concerns were well-founded.

[11]

For
    approximately two years after separation, attempts were made to resolve the
    outstanding issues arising from the parties separation and the breakdown of
    their marriage. All such attempts failed.

[12]

On
    February 14, 2014, the parties participated in a day-long mediation. Ms. Ramdial
    attended with her former legal counsel. Mr. Davis attended with the
    respondents legal counsel. The mediator was a retired Superior Court judge
    with extensive experience in the field of family law. The choice of mediator
    was that of Ms. Ramdial and her lawyer, to which Mr. Davis and the respondents
    counsel agreed.

[13]

Before
    the mediation was undertaken, the parties made financial disclosure. All of the
    appellants requests for financial disclosure were satisfied. However, there
    were no formal valuations of the matrimonial home or of the parties jointly-owned
    properties in Trinidad. Mr. Davis took the position at the mediation that Ms.
    Ramdial had misappropriated significant sums of money from the parties joint
    bank accounts during the asset control period. Ms. Ramdial steadfastly denied
    these allegations.

[14]

By
    the end of the mediation, the parties and their solicitors had mutually
    negotiated and drafted a written agreement that resolved, on a final basis, all
    outstanding matters in the matrimonial litigation (the Settlement Agreement).
    The parties then met separately with their respective lawyers to review and execute
    the Settlement Agreement.

[15]

Under
    the terms of the Settlement Agreement, the respondent was to:

i.

pay the appellant $40,000 in full satisfaction of spousal support (past,
    present and future) by May 3, 2014;

ii.

transfer his half-interest in the parties jointly owned properties in
    Trinidad to the appellant;

iii.

secure a discharge of all registered encumbrances on the matrimonial
    home against the appellant by May 3, 2014;

iv.

take all steps forthwith to ensure that the appellant is the beneficiary
    of the proceeds and investments held with Manulife and MacKenzie, and of the
    respondents British military pension and his British government pension and
    forthwith provide proof of same;

v.

transfer registration of the Honda vehicle registered in the
    respondents name to the appellant; and

vi.

be responsible for the house insurance on the matrimonial home.

The appellant was to:

i.

assume the cost of the transfer of the Trinidad properties;

ii.

transfer her interest in the matrimonial home to the respondent by May
    3, 2014;

iii.

permit the respondents designate to attend at the matrimonial home to
    pick up his possessions on March 1, 2014; and,

iv.

be responsible for the cost of utilities of the matrimonial home to the
    time of closing.

[16]

Approximately
    a month after the Settlement Agreement was executed, Ms. Ramdial discharged her
    counsel and notified Mr. Davis that she intended to resile from it.

[17]

Mr.
    Davis then moved for summary judgment pursuant to rules 16(1) and 16(6) of the
Family
    Law Rules
, O. Reg. 114/99, to enforce the terms of the Settlement
    Agreement. Ms. Ramdial, with the assistance of new counsel, brought a
    cross-motion to have the Settlement Agreement set aside on the basis of duress,
    unconscionability, undue influence, and ineffective assistance of counsel.

[18]

The
    two motions were heard together. Before the motions judge, Mr. Davis indicated
    that he would not rely on the allegation of misappropriation of funds by Ms.
    Ramdial and she indicated, in reply, that she would not rely on undue influence
    as a ground to set aside the Settlement Agreement.

[19]

By
    order dated December 15, 2014 (the Order), the motions judge granted Mr.
    Davis motion and dismissed Ms. Ramdials motion. He found there was
    insufficient evidence of duress, unconscionability, and/or an improvident
    bargain to warrant setting aside the Settlement Agreement.

[20]

Ms.
    Ramdial appeals.

THE ISSUES

[21]

The
    appellant raises two issues on appeal. She submits that the motions judge erred
    by: (i) failing to order a trial of the issues raised on the motions, and (ii) failing
    to consider whether the substance of the Settlement Agreement complied with the
    objectives of the
Divorce Act
.

ANALYSIS

Issue #1  Did the motions judge err by failing to order a trial
    of the issues raised on the motions?

[22]

The
    appellant argues that there are gaps in the record relating to the matters in
    issue and those gaps created an uncertainty which could not be resolved without
    the benefit of a trial. Thus, she contends, the motions judge erred in failing
    to order a trial of the issues raised on the motions.

[23]

In
    my view, this submission reflects a misunderstanding of the operation of rule
    16(6) of the
Family Law Rules
.

[24]

Rule
    16(6) provides that if there is no genuine issue requiring a trial of a claim
    or defence, the court shall make a final order for summary judgment.

[25]

As
    the party bringing the motion for summary judgment, the respondent had the
    burden of showing no genuine issue requiring a trial. As the responding party,
    the appellant had to comply with the dictates of rule 16(4.1), which required
    that she tender evidence of specific facts showing a genuine issue requiring a trial.
    The responding party may not rest solely on mere allegations or denials, but
    must set out, in an affidavit or other evidence, specific facts showing that
    there is a genuine issue requiring a trial.

[26]

Rule
    16 (4.1) reads as follows:

In response to the affidavit or other evidence served by the
    party making the motion, the party responding to the motion may not rest on
    mere allegations or denials but shall set out, in an affidavit or other
    evidence, specific facts showing that there is a genuine issue for trial.

[27]

Each
    party had to put its best foot forward with respect to the existence or
    non-existence of material issues to be tried:
Papaschase Indian Band No.
    136 v. Canada (A.G.)
, 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11, citing
Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.
(1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434;
Goudie v. Ottawa (City)
,
    2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.

[28]

Further,
    in
Corchis v. KPMG Peat Marwick Thorne
, [2002] O.J. No. 1437 (C.A.),
    at para. 6, this court affirmed that the responding party to a motion for summary
    judgment has an obligation to lead trump or risk losing.

[29]

While
    these cases rely on the summary judgment rules in the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, they apply also to the summary judgment
    rules in the
Family Law Rules: Brusch v. Brusch
, 2007 ONCA 612, at
    para. 1.

[30]

Thus,
    once the respondent discharged his burden of showing that there was no genuine
    issue requiring a trial, the appellant bore an evidentiary burden to respond
    with evidence of specific facts showing that there was a genuine issue
    requiring a trial. The motions judge found that Ms. Ramdial failed to meet that
    evidentiary burden.

[31]

I
    agree with the motions judge.  Accordingly, he made no error in making an order
    for summary judgment.

Issue #2  Did the motions judge err by failing to consider
    whether the substance of the Settlement Agreement complied with the objectives
    of the
Divorce Act
?

[32]

Miglin
    v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, is the starting point for
    deciding this issue. While
Miglin

dealt with spousal support
    agreements in the context of a divorce, it offers guidance for the conduct of
    negotiations for separation agreements generally, including negotiations for
    the division of matrimonial assets:
Rick v. Brandsema
, 2009 SCC 10, [2009]
    1 S.C.R. 295, at para. 39.

[33]

In
Miglin
, the parties executed a final agreement that addressed all
    matters surrounding the breakdown of their marriage, including mutual releases
    from any future claims for spousal support. Some years later, the wife applied
    for spousal support under the
Divorce Act
. The trial judge ordered
    spousal support. That order was upheld on appeal (and varied to remove the
    five-year term) but reversed by a majority of the Supreme Court.

[34]

Justices
    Bastarache and Arbour, writing for the majority in
Miglin
, explained
    that where parties execute a negotiated agreement in the family law context and
    that agreement is called into question, the court should engage in a two-stage
    inquiry. The second stage is not relevant in the present case because it
    applies when there has been a change in the parties circumstances after the
    execution of the agreement. It will be recalled that in this case, the
    appellant sought to resile from the Settlement Agreement within a month of its
    execution. She did not argue a change in circumstances nor was there any
    evidence of such a change. Thus, I will address only the first stage of the
    inquiry.

[35]

The
    first stage of the inquiry consists of two steps.

[36]

In
    the first step, the court should look to the circumstances in which the
    agreement was negotiated and executed to determine whether the applicant has
    established a reason to discount the agreement:
Miglin
, at para. 80.

[37]

If
    the court is satisfied that the circumstances under which the agreement was
    negotiated were satisfactory, it must proceed to the second step. In the second
    step, the court considers the substance of the agreement. It must determine the
    extent to which the agreement takes into account the factors and objectives
    listed in the
Divorce Act
, thereby reflecting an equitable sharing of
    the economic consequences of marriage and its breakdown. Only a significant
    departure from the
Divorce Act
objectives will warrant the courts
    intervention. The court must not view spousal support arrangements in a vacuum,
    however. It must look at the agreement in its totality, bearing in mind that
    all aspects of the agreement are inextricably linked and that the parties have
    a large discretion in establishing priorities and goals for themselves:
Miglin
,
    at para. 84.

The Circumstances of Negotiation
    and Execution

[38]

Ms.
    Ramdials position on this matter is based on the circumstances in which the
    Settlement Agreement was negotiated. She alleges that she was vulnerable and
    under duress in the mediation process.

[39]

These
    allegations appear to be based on two matters. First, Ms. Ramdial has diabetes
    and says she was suffering from its effects during the mediation process. Second,
    she contends that both her counsel and the mediator failed in their obligations
    and pressured her into executing the Settlement Agreement.

[40]

The
    motions judge was aware that Ms. Ramdial is a diabetic and that she claimed to
    have been vulnerable at the mediation as a result of that condition. At pages
    2-3 of his reasons, the motions judge states:

As evidence of such vulnerability [Ms. Ramdial] provided an
    affidavit stating that she suffers from diabetes, the symptoms of which include
    dizziness, blurred vision and severe headaches. And she stated that while
    waiting for the mediator to arrive, as a result of her not eating for a
    substantial period of time, she was feeling dizzy and overwhelmed.

[41]

However,
    assuming that Ms. Ramdial was vulnerable despite being represented by counsel
    throughout, the motions judge found no objective evidence to suggest that Mr.
    Davis or his counsel took advantage of or exploited that vulnerability. That
    finding was fully open to the motions judge.

[42]

The
    motions judge also addressed the appellants contention that she executed the
    Settlement Agreement under duress. As the motions judge noted, vulnerability cannot
    be equated to duress. Duress is the coercion of a persons will through
    illegitimate pressure, with one party dominating the will of another at the
    time that a contract is executed:
Gordon v. Roebuck
(1992), 9 O.R.
    (3d) 1 (C.A.);
Stott v. Merit Investment Corp.

(1988), 63 O.R.
    (2d) 545 (C.A.), leave to appeal refused, [1988] S.C.C.A. No. 185.

[43]

The
    motions judge found no evidence of duress in the mediation process or execution
    of the Settlement Agreement.  On the record, that finding was virtually
    inescapable.

[44]

The
    motions judge was fully alive to the
Miglin
dictates in this step of
    stage one.  He considered all of the circumstances relating to the negotiation
    and execution of the Settlement Agreement, not limiting himself to the specific
    allegations based on vulnerability and duress.  He concluded that nothing in
    those circumstances gave rise to a basis on which to interfere with the Settlement
    Agreement.

[45]

I
    agree with the motions judge.  Prior to the mediation, the parties had
    exchanged sworn financial statements and draft net family property statements. All
    of the appellants requests for financial disclosure had been fulfilled. Both parties
    had prepared extensive mediation briefs. Both parties were represented by legal
    counsel prior to the mediation and throughout the mediation process. The
    mediation was conducted by an experienced mediator. Both parties were actively
    involved in the negotiations that took place during the mediation. Both parties
    met separately with their respective lawyers to review and execute the
    Settlement Agreement.

The Substance of the Settlement
    Agreement

[46]

The
    appellant submits that the motions judge failed to consider the substance of
    the Settlement Agreement, as required by the second step of the first stage of
    the
Miglin

test. Indeed, she says that the motions judge could
    not consider the substance of the impugned agreement because he did not have
    before him valuations of the matrimonial home and the Trinidad properties. Without
    that information, she contends, it was not possible for the motions judge to
    have determined whether the Settlement Agreement met the overall objectives of
    the
Divorce Act
.

[47]

I
    do not accept this submission.

[48]

As
    the party seeking to set aside the Settlement Agreement, the appellant bore the
    burden of proof to show some legitimate basis on which to set it aside. She
    offers no concrete suggestion as to how the Settlement Agreement fails to meet
    the objectives of the
Divorce Act
.

[49]

To
    the extent that the appellant contends that the Settlement Agreement results in
    some unfairness in the equalization of property, that submission is purely
    speculative. She adduced no evidence to support that contention. The appellant
    could have obtained formal valuations for the properties prior to the mediation
    or the summary judgment motion and chose not to. All requests that she made for
    financial disclosure were met. The motions judge was entitled to conclude that
    the appellant had put her best foot forward. He found nothing to suggest that
    the Settlement Agreement was unconscionable or unfair to the appellant.

[50]

Again,
    I agree with the motions judge.

[51]

The
    court should treat the parties reasonable best efforts, as reflected in their negotiated
    agreement, as presumptively dispositive. It should set aside the wishes of the
    parties as expressed in that agreement only where the applicant shows that the
    agreement fails to substantially comply with the overall objectives of the
Divorce
    Act
. Those objectives include certainty, finality and autonomy:
Miglin
,
at para. 78.

[52]

The
    Supreme Court reiterated the need for courts to respect private arrangements
    made for the division of property on marriage breakdown, particularly where the
    agreement was negotiated with independent legal advice, in
Hartshorne v.
    Hartshorne
, 2004 SCC 22, [2004] 1 S.C.R. 550, at para. 9. While such
    agreements are not immune to scrutiny, they are to be set aside only where
    there is evidence establishing that the circumstances in which the agreement
    was negotiated were not satisfactory or that the agreement was not in substantial
    compliance with the objectives of the
Divorce Act
. There is no such
    evidence in this case.

DISPOSITION

[53]

Accordingly,
    I would dismiss the appeal with costs to the respondent fixed at $13,000, all
    inclusive, deductible from the amount which the respondent is to pay the
    appellant pursuant to the Settlement Agreement.

Released: October 29, 2015 (E.E.G.)

E.E. Gillese
    J.A.

I agree. K. van Rensburg
    J.A.

I agree. B.W. Miller J.A.

[1]
The parties differ on whether the date of separation is before or after the
    appellants trip to Trinidad, which took place between mid-January 2012 and early
    February 2012.


COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. 2248606 Ontario Inc. (Fine
    Packaging), 2015 ONCA 686

DATE: 20151013

DOCKET: C59610

Gillese, Huscroft and Miller JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

2248606 Ontario Inc. c.o.b. as Fine Packaging,
    Gurjinder Pooni,
Canadian Industrial Equipment Ltd.,
    Shahan Hussain and Imran Hussain also known as Iram Hussain
and the
    Canadian Imperial Bank of Commerce

Defendants (Appellants)

No one appearing for the appellants

Natalie Marconi, for the respondent

Heard: October 7, 2015

On appeal from the judgment of Justice Sidney N. Lederman
    of the Superior Court of Justice, October 15, 2014.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is dismissed with costs to the respondent fixed
    at $35,000, all inclusive. Order to go as sought.