COURT OF APPEAL FOR ONTARIO

CITATION: Parkhill Excavating Limited v. Royal &
    Sunalliance Insurance Company of Canada, 2016 ONCA 832

DATE: 20161108

DOCKET: C61276

LaForme, Hourigan and Pardu JJ.A.

BETWEEN

Parkhill Excavating Limited

Plaintiff (Appellant)

and

Royal & Sunalliance Insurance Company of
    Canada

Defendant (Respondent)

AND BETWEEN

Parkhill
    Excavating Limited,

Arthur
    Thomas Barker and Randy Arthur Barker

Plaintiffs (Appellants)

and

Economical Mutual Insurance Company

Defendant (Respondent)

AND BETWEEN

BGS
    Homes Inc. and B.G. Scugog Inc.

Plaintiff

and

Board of
    Health for the Haliburton,

Kawartha,
    Pineridge District Health Unit,

The
    Corporation of the City of Kawartha Lakes,

Parkhill Excavating Limited,

Arthur Thomas Barker and Randy Arthur Barker

Defendants
(
Appellants
)

and

Northbridge General
    Insurance Corporation

Third Party (Respondent)

Lawrence G. Theall and Camille Dunbar, for the appellants, Parkhill
    Excavating Limited, Arthur Thomas Barker and Randy Arthur Barker

Marcus B. Snowden and Sébastien A. Kamayah, for the
    respondent, Economical Mutual Insurance Company

Mark M. O'Donnell, for the respondent, Royal &
    Sunalliance Insurance Company of Canada

Emily Stock, for the respondent, Northbridge General
    Insurance Corporation

Heard: September 29, 2016

On appeal from the judgments of Justice Susan E. Healey
    of the Superior Court of Justice, dated October 13, 2015.

Hourigan J.A.:

Introduction

[1]

The issue for determination on this appeal is whether the respondent
    insurance companies are obliged to provide a defence to Parkhill Excavating
    Limited (Parkhill), Arthur Thomas Barker and Randy Arthur Barker (together the
    appellants) under their respective Commercial General Liability (CGL)
    insurance  policies to an action commenced by BGS Homes and B.G. Scugog Inc.
    (BGS).

[2]

The motion judge ruled that the respondents are not obliged to provide a
    defence to the litigation. For the reasons that follow, I am of the view that
    the motion judge erred in law in her analysis of the issue, and that the
    respondents do have an obligation to provide a defence. Accordingly, I would
    allow the appeal, set aside the judgment below, and grant the appellants a
    declaration compelling the respondent insurers to provide a defence under their
    CGLs, subject to a determination of whether coverage is excluded under the
    Professional Services Exclusion and excluding a defence regarding the allegations
    of fraud, deceit and dishonesty as against Arthur Barker.

Facts

[3]

In 2004, BGS retained Parkhill to design, install and supervise the
    construction of 36 septic systems in homes it built and sold. Parkhill
    performed the work from 2004 to 2010.

[4]

In May 2010, the local health unit wrote to 25 homeowners warning them
    of potential problems with their sewage septic systems installed by Parkhill. Between
    May and August 2011, the health unit issued Orders to Comply under the
Building
    Code Act
, 1992, S.O. 1992, c.23
to 36 homeowners, which identified various contraventions, including: non-compliant
    filter medium, inadequate area of sand fill, improper grading in the vicinity
    of the sewage system, deficient pump chambers, and inadequate tank sizes. BGS
    and Tarion Warranty Corporation replaced the 36 septic systems in August 2011.

[5]

In 2012, BGS sued Parkhill for negligence and breach of contract
    relating to deficiencies arising from Parkhills design and installation work on
    the 36 septic systems (the Underlying Action). BGS alleges that from 2004 to
    2010 the appellants supplied and installed incorrect and non-compliant filter
    mediums, also known as filter sand, in the septic systems of all 36 homes. As
    well, BGS alleges that the calculations and designs Parkhill used to obtain the
    permits for the septic systems in 11 of the homes did not conform to the
    features of the houses, as larger tanks and septic beds were required under the
Building Code Act
.

[6]

The appellants have defended the Underlying Action and have commenced a
    third party claim against Robert E. Young Construction Ltd. (Young
    Construction). Young Construction is a wholesaler of sand and gravel products,
    including septic filter mediums. Young Construction supplied the allegedly
    deficient filter sand used in the septic systems in issue.

[7]

Parkhill carried CGLs from three insurance companies from 2004 to 2010.
    The policies issued by Economical Mutual Insurance Company (Economical)
    covered the period from October 10, 2003 to October 10, 2006; the policies
    issued by Royal & Sunalliance Insurance Company of Canada (RSA) covered
    the period from October 10, 2006 to October 10, 2007; and the policies issued
    by Northbridge General Insurance Corporation (Northbridge) covered the period
    from October 10, 2007 to October 10, 2010.

[8]

The appellants allege that each of the respondent insurers was on risk
    for a share of the relevant time and has a duty to defend them in the
    Underlying Action. The insurers deny that they have a duty to defend the
    appellants, relying on various exclusion clauses in their policies.

Judgment Below

[9]

The appellants commenced an action seeking an order or alternatively a
    declaration compelling the three respondent insurers to provide a defence to
    the Underlying Action. They then brought a motion for summary judgment. The motion
    judge found that the claim as pleaded fell within the coverage afforded by the
    CGLs. She held, at para. 43: The allegations in this case are of defective or
    faulty workmanship or materials, and therefore may constitute property damage
    caused by an occurrence, thereby triggering coverage.

[10]

Economical argued that it was not on risk during the relevant time and,
    therefore, there was no coverage under its policy. However, the motion judge
    found that Economical was on risk at the time of the occurrence. She reasoned
    that the Underlying Action seeks damages for costs incurred to remedy the
    defective septic systems installed. The faulty and defective workmanship in
    designing and installing the septic systems was the occurrence giving rise to
    the claim. Since the design and installation of the septic system occurred from
    2004 to 2010, and Economical was on risk from October 2003 to October 2006, the
    claim fell within the policy period.

[11]

Once the appellants proved that the claim fell within the coverage, the
    onus shifted to the respondent insurers to establish that an exclusion applied
    to preclude coverage. The motion judge found that the Your Work Exclusion in
    the respondents policies applied.

[12]

There are two versions of the Your Work Exclusion in the relevant
    policies. Version A is in Economicals policy and in Northbridges policy for
    2007-2010. It provides: Insurance does not apply to [] [p]roperty damage to
    your work arising out of it or any part of it and included in the
    products-completed operations hazard.

[13]

Version B is set out in RSAs policy and in Northbridges policy for
    2010-2012. That exclusion states: Insurance does not apply to [] [p]roperty
    damage to that particular part of your work arising out of such work or any
    part of such work and included in the products completed operations hazard.

[14]

The motion judge held, at para. 48, that the definition of your work
    in the policies applies to Parkhills work, and is captured within the
    definition of products-completed operations hazard.

[15]

With that ruling, the onus shifted back to the appellants to prove that
    the Subcontractor Exception to the Your Work Exclusion brought the otherwise
    excluded claim back into coverage. This exception to the exclusion states that
    the exclusion does not apply if the damaged work or the work out of which the
    damage arises was performed on your behalf by a subcontractor.

[16]

The motion judge found that the exception did not apply because the appellants
    had failed to discharge the burden necessary to demonstrate that Young
    Construction was a subcontractor, rather than a supplier. In making this
    determination, the motion judge relied on the characterization and nature of
    the relationship between Parkhill and Young Construction set out in the third
    party pleadings against Young Construction.

[17]

Given her finding on the Your Work Exclusion, the motion judge did not
    consider the alternative argument advanced by the respondents that coverage is
    also excluded under the Professional Services Exclusion in their respective
    CGLs.

Issues

[18]

This appeal raises the following issues:

(i) Whether the motion judge erred in not finding that the mere
    possibility that consequential damages are claimed in the Underlying Action triggered
    a duty to defend?

(ii) Whether the motion judge erred in holding that the Your
    Work Exclusion applies?

(iii) Whether the motion judge erred in holding that the
    Subcontractor Exception does not apply?

[19]

It is common ground among the parties, and I accept, that the
    standard of review on the motion judges analysis of the standard form
    insurance contracts in issue is correctness:
Ledcor Construction Ltd. v.
    Northbridge Indemnity Insurance Co
.,
    2016 SCC 37, and
MacDonald v. Chicago Title Insurance Co.
    of Canada
, 2015 ONCA 842, 127 O.R. (3d) 663, leave to
    appeal refused October 21, 2016 (S.C.C.).

[20]

The parties also agree that if the motion judge
    erred in her analysis of issue (i) above, then it is unnecessary to consider
    the remaining issues. As will be discussed below, it is my view that the motion
    judge did err in her consideration of issue (i). It is, therefore, unnecessary
    to consider issues (ii) and (iii).

[21]

In their factum the appellants seek an order
    allowing them to retain their own defence counsel at the expense of the
    respondent insurers. This relief was not requested on the motion below and was
    not addressed by the motion judge in her reasons. Accordingly, it will not be
    considered on this appeal.

Analysis

(i)

Legal Principles

[22]

The legal principles governing an analysis of
    whether an insurer has a duty to defend are well established. The insured has
    the initial onus of establishing that the allegations made by a plaintiff
    against it, if proven, would bring the claim within the insurance policy. The
    duty to defend is not dependent on the insured actually being liable or the
    insurer actually being required to indemnify. All that is required to trigger
    the duty is the mere possibility that a claim falls within an insurance policy
:
    Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada
, 2010 SCC 33, [2010] 2 S.C.R. 245, at para. 19. In considering this
    question, the pleadings shall be given the widest latitude to determine whether
    the mere possibility of a claim within the policy exists:
Nichols v.
    American Home Assurance Co.,
[1990] 1 S.C.R. 801, at p. 812.

[23]

Once the insured has satisfied the initial
    burden, the onus shifts to the insurer to establish that the claim falls
    outside of coverage as a consequence of the operation of an exclusion clause.
    Exclusion clauses preclude coverage when the claim otherwise falls within the
    initial grant of coverage:
Progressive
, at
    para. 27.

[24]

If the insurer can bring the claim within an
    exclusion, the burden then shifts back to the insured to establish that its claim
    falls within an exception to the operative exclusion clause. Exceptions do not
    serve to create coverage; they only bring an otherwise excluded claim back
    within coverage where the claim initially fell within the coverage:
Progressive
, at para. 28.

[25]

With respect to Your Work Exclusions, the case
    law generally establishes that where the claim is limited to the direct costs
    of repairing or replacing the defective work, such exclusions apply:
March
    Elevator Co. v. Canadian General Insurance Co.
, [1995]
    I.L.R. 1-3227 (Ont. Gen. Div.), at para. 27,
Alie v. Bertrand & Frère
    Construction Co.
, (2002) 62 O.R. (3d) 345 (C.A.), at para. 27. However, if
    consequential damage is alleged, the exclusion applies only with respect to the
    cost of repairing the insureds faulty work, and there is coverage for the consequential
    damage:
Progressive
, at para. 63.

(ii)

Principles Applied

[26]

The respondent insurance companies submit that
    the true nature of the Underlying Action is that the plaintiff is attempting to
    recover the costs it was forced to incur in correcting the deficiencies in
    Parkhills work. They submit that there is no allegation of any consequential
    damage, whether express or implied, in the Underlying Action.

[27]

This submission is inconsistent with the motion
    judges finding at para. 37 of her reasons:

The damages sought in the underlying action
    are approximately four times what Parkhill was paid to install the septic
    systems. The plaintiffs in the underlying action claim losses arising from
    deficiencies in the septic system.  At para. 44 of the claim, it is
    alleged that the [b]uilder has incurred costs and continues to incur costs performing
    remedial work necessary to satisfy the orders to comply.  Paragraph 51 of
    the claim alleges that the plaintiffs are expected to have to perform further
    remedial work at their own expense.  Paragraph 82 refers to the cost of
    remedial work including the higher cost of remedying work once the homes had
    been sold.  Accordingly, in addition to the question of whether defective
    work can be an accident, which has been answered affirmatively by
Progressive
    Homes
at paras.  42-50,
it is not at all clear from the claim that the damages sought
    are restricted only to the replacement of the allegedly deficient systems due
    to the work performed by Parkhill.
[Emphasis added.]

[28]

The motion judges finding that the damages claimed in the Underlying
    Action may not be restricted to the cost of replacing the allegedly deficient
    systems was well grounded in the pleadings. As she noted, the statement of
    claim makes repeated reference to remedial work. In particular, the claim for
    the increased cost of remedying work once the homes have been sold by
    implication engages consequential damages claims. There is no basis for
    appellate interference with this finding.

[29]

Having made that finding, the motion judge should have concluded that
    there was a mere possibility that claims for consequential damages were being
    asserted in the Underlying Action. That should have ended the analysis. The
    duty to defend would have been established as the potential consequential
    damages claims could not be excluded by the Your Work Exclusion (see
Progressive
,
at para. 63). The motion judge erred in
    going on to consider the applicability of the Your Work Exclusion because the
    exclusion could not apply to the consequential damages claims. It was, of
    course, also unnecessary to go on to consider the Subcontractor Exception to
    the exclusion.

Disposition

[30]

The motion judge erred in her analysis of the duty to defend. She should
    have concluded, based on her own factual findings, that there was a mere
    possibility that claims for consequential damages were being asserted in the
    Underlying Action, and thus the duty to defend had been established.
    Accordingly, I would allow the appeal, set aside the order below and grant a
    declaration that the respondent insurance companies are obliged to provide a
    defence to the Underlying Action.

[31]

There are two caveats to the foregoing. First, the motion judge did not
    consider the respondent insurance companies alternative argument that coverage
    is excluded by the Professional Services Exclusion. The declaration granted
    herein does not affect the rights of the respondents to advance that argument
    in this action or on a summary judgment motion.

[32]

Second, on the motion it was conceded that there is no obligation to
    defend Arthur Barker with respect to the allegations of fraud, deceit and
    dishonesty as against him.

[33]

The parties agreed that if successful the appellants are entitled to
    costs of the motion below on a full indemnity scale and I would so order. If
    there is any issue on the quantum of those costs, the parties may make brief
    written submission to this court. With respect to the costs of the appeal, the
    appellants are entitled to costs in the agreed upon amount of $15,000,
    inclusive of fees, disbursements, and taxes.

Released: November 8, 2016 CWH

C.W.
    Hourigan J.A.

I
    agree H.S. LaForme J.A.

I
    agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Parkhill Excavating Limited v. Royal &
    Sunalliance Insurance Company of Canada, 2016 ONCA 882

DATE: 20161122

DOCKET: C61276

LaForme, Hourigan and Pardu JJ.A.

BETWEEN

Parkhill Excavating Limited

Plaintiff (Appellant)

and

Royal & Sunalliance Insurance Company of
    Canada

Defendant (Respondent)

AND BETWEEN

Parkhill
    Excavating Limited,

Arthur
    Thomas Barker and Randy Arthur Barker

Plaintiffs (Appellants)

and

Economical Mutual Insurance Company

Defendant (Respondent)

AND BETWEEN

BGS
    Homes Inc. and B.G. Scugog Inc.

Plaintiff

and

Board of
    Health for the Haliburton,

Kawartha,
    Pineridge District Health Unit,

The
    Corporation of the City of Kawartha Lakes,

Parkhill Excavating Limited,

Arthur Thomas Barker and Randy Arthur Barker

Defendants
(
Appellants
)

and

Northbridge General
    Insurance Corporation

Third Party (Respondent)

Lawrence G. Theall and Camille Dunbar, for the appellants, Parkhill
    Excavating Limited, Arthur Thomas Barker and Randy Arthur Barker

Marcus B. Snowden and Sébastien A. Kamayah, for the
    respondent, Economical Mutual Insurance Company

Mark M. O'Donnell, for the respondent, Royal &
    Sunalliance Insurance Company of Canada

Emily Stock, for the respondent, Northbridge General
    Insurance Corporation

Heard: September 29, 2016

Supplementary reasons to the judgment in
Parkhill Excavating Limited v. Royal & Sunalliance Insurance Company of
    Canada
, 2016 ONCA 832, released on November 08, 2016.

Hourigan J.A.:

ADDENDUM

[1]

The appeal was heard on September 29, 2016 and the judgement was
    released on November 08, 2016. Following the release of the judgment, the panel
    was contacted by counsel and informed of several pieces of pertinent
    information, requiring the amendment of the initial declaration and the release
    of this addendum to the judgement.

[2]

Counsel for Royal & Sunalliance
    Insurance Company of Canada (RSA) informed the Court that RSA had settled the
    claims made by Parkhill Excavating Limited (Parkhill) against it and settled
    its involvement in the appeal prior to the hearing of the appeal. Accordingly,
    RSA was not a respondent to the appeal, and was not a party against whom
    judgment could be rendered. The declaration of November 08, 2016 is thus
    amended, so that it is only the insurers Economical Mutual Insurance Company
    (Economical) and Northbridge General Insurance Corporation (Northbridge)
    who are compelled to provide Parkhill a defence under their Commercial General
    Liability (CGL) policies.

[3]

Counsel for Parkhill informed the Court
    that the respondent insurers had withdrawn any reliance on the Professional
    Services Exclusion prior to the hearing of the appeal. The declaration of
    November 08, 2016 is thus amended, to remove the stipulation that the declaration
    is subject to a determination of whether coverage is excluded under the
    Professional Services Exclusion. The appellants are thus granted a declaration
    compelling Economical and Northbridge to provide a defence under their CGLs,
    excluding a defence regarding the allegations of fraud, deceit and dishonesty
    as against Arthur Barker.

[4]

Counsel for Parkhill further informed
    the Court of an agreement amongst the parties that if the appellants were
    successful, they would be entitled to full indemnity costs of the appeal, in an
    amount to be agreed to or fixed by the panel. The parties are now attempting to
    settle the quantum of costs payable to the appellants amongst themselves. The
    panel directs that any submissions with respect to costs be filed by the
    appellants within 30 days, and any reply by the respondents be filled within 10
    days thereafter. The cost award of $15,000 to the appellants is vacated.

Released: November 22, 2016 GP

C.
    W. Hourigan J.A.

I
    agree H.S. LaForme J.A.

I
    agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2016 ONCA 831

DATE: 20161107

DOCKET: C62382

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Metin Kadir Ahmed

Appellant

Metin Kadir Ahmed, acting in person

Nader Hasan, appearing as duty counsel

Sidney Thompson, for the respondent

Heard: November 1, 2016

On appeal from the sentence imposed on June 21, 2016 by
    Justice Peter H. Wilkie of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pleaded guilty to a charge of conspiracy to traffic
    cocaine arising from an investigation into drug trafficking activities in the
    Niagara region by a group called the Black Pistons Motorcycle Club.  He was
    sentenced to 2 years imprisonment, less 8 months credit for pre-sentence
    custody.

[2]

With the assistance of duty counsel, he appeals against sentence on two
    grounds.  He submits that the sentencing judge erred:

1.

by imposing a
    demonstrably unfit sentence that was outside the range and failed to take into
    account the appellants prospects for rehabilitation; and

2.

by failing to
    give credit for the full period of time that the appellant spent on an
    immigration detention.

[3]

We do not accept these submissions.

The First Ground of Appeal

[4]

The sentence that was imposed was fit and within the range.  This court
    has indicated that the range of sentence for this type of offence is from 6
    months to 2 years:
R. v. Woolcock
, [2002] O.J. No. 4927 (C.A.), at
    para. 15.  The quantity involved in this case was 28 grams of cocaine, which
    places the offence at the high end of the range.  Furthermore, the appellant
    had a criminal record that included a prior conviction for possession of
    cocaine for the purpose of trafficking and two further convictions for
    possession of cocaine.  In addition, although the appellant was not a member of
    the Black Pistons Motorcycle Club, he had an ongoing relationship with it.
    Thus, as the sentencing judge found, there was a link between this offence and a
    larger semi-organised commercial enterprise.

[5]

Moreover, the sentencing judge expressly took into consideration the
    appellants prospects for rehabilitation.  Although he considered there to be
    only a glimmer of rehabilitative potential, given the appellants history, he
    was aware that the appellant had broken away from his co-conspirators and left
    behind that negative peer group by moving to Calgary to live with his father
    and work in his fathers business.

The Second Ground of Appeal

[6]

After the appellant was granted bail on this matter, he was placed in
    immigration detention for seven and a half months.  The sentencing judge gave
    the appellant full credit for the time that the appellant spent in pre-sentence
    custody for this offence but only two months credit for the seven and a half
    months of immigration detention.

[7]

The sentencing judge fully addressed the issue of how much credit should
    be given for the immigration detention.  He noted that sentencing had been
    adjourned on a number of occasions to accommodate the appellants personal
    issues, including obtaining information regarding his immigration status.  He
    referred to the information that he had received on the matter and concluded
    that it was clear that the immigration detention was triggered by factors
    unrelated to the charge for which the appellant was being sentenced.  He
    explained that the appellants application for permanent residence had been
    refused on the ground of serious criminality the year before the charges before
    the court arose.  He indicated that it seemed logical to assume that the
    appellants outstanding bail on this charge would have made it harder for the
    appellant to satisfy his onus in obtaining bail on the immigration detention,
    but stated that the defence had led no evidence on that matter.  Recognizing
    that the impact was speculative, the sentencing judge exercised his
    discretion and gave the appellant two months credit for the period of
    immigration detention.

[8]

In the circumstances, we see no basis for interfering with the
    sentencing judges exercise of discretion.

Disposition

[9]

For these reasons, the appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anang, 2016 ONCA 825

DATE: 20161104

DOCKET: C60560

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Anang

Appellant

Richard Litkowski and Nate Jackson, for the appellant

Maria Gaspar, for the respondent

Heard: September 23, 2016

On appeal from the conviction entered by Justice Brian P.
    OMarra of the Superior Court of Justice on March 20, 2015, and from the
    sentence imposed on June 17, 2015.

ENDORSEMENT

Overview

[1]

Mr. Anang was convicted of possession of heroin for the purpose of
    trafficking and sentenced to four years imprisonment. He appeals from that
    conviction. He also seeks leave to appeal and, if leave is granted, appeals
    from the sentence imposed.

[2]

With respect to his conviction, the appellant submits that the trial
    judge erred:

(i)

by concluding (based on a weak
    tip from a confidential informant, coupled with two otherwise non-criminalised incidents)
    that his arrest was lawful and, therefore, that the search incidental to arrest
    was also lawful and not in breach of his rights under s. 8 and s. 9 of the
Canadian
    Charter of Rights and Freedoms
, when the evidence did not support a
    finding that the police had an objective basis for believing they had
    reasonable and probable grounds for arrest;

(ii)

by failing to exclude the
    evidence that was seized incidental to the arrest pursuant to s. 24(2) of the
Charter
;
    and,

(iii)

by applying an uneven level of
    scrutiny to the evidence of the Crown, in comparison to that of the appellant,
    and misapprehending the evidence at trial.

[3]

With respect to sentence, the appellant submits that a sentence of four
    years imprisonment was unduly harsh in the circumstances and that the trial
    judge erred by:

(i)

relying too heavily on the
    dissenting reasons of Charron J.A. in
R. v. Zamani
(1999), 125 O.A.C.
    358 (C.A.);

(ii)

failing to explain why he
    determined that four years was an appropriate sentence as opposed to some
    lesser penitentiary period; and,

(iii)

placing too much emphasis on the
    aggravating factors.

[4]

We would not give effect to the foregoing submissions.

Background

[5]

Plainclothes members of the Toronto Police Service arrested the
    appellant at gunpoint on November 27, 2012. At the time he was driving alone in
    a Ford Focus in which the police found significant amounts of cash, a black
    leather shoulder bag containing large amounts of heroin, various drug-related
    paraphernalia, and some canisters containing heroin secreted in a false
    bottom.  There was a total of 75 grams of heroin with an estimated street value
    of approximately $18,000.

[6]

The arrest occurred following an investigation that had been triggered
    some time before by a tip from a confidential informant who provided
    information to the police that possibly linked the appellant to the selling of
    heroin. After a search of police data banks, the police connected the appellant
    with an apartment on Goreway Drive in Mississauga and with two vehicles, a BMW
    and a grey Ford Focus.

[7]

On November 27, the police were conducting surveillance at the Goreway
    Drive address when they observed the appellant driving away in the grey Ford
    Focus.  Within a short period of time thereafter they observed two incidents
    that preceded the arrest.

[8]

The first (the CIBC incident) occurred after the surveillance officers
    followed the appellant to a CIBC parking lot and witnessed an individual come
    out of the CIBC building carrying a black bag, approach the front passenger seat
    and re-enter the CIBC building carrying a black bag. One of the surveillance
    officers (but not both) observed a red object sticking out of the black bag
    when the individual exited the bank but did not see a red object sticking out
    of the bag the individual carried when he returned to the bank. The second
    incident (the Summerfield Crescent incident) occurred shortly thereafter when
    the officers followed the appellant to an address on Summerfield Crescent where
    another exchange occurred in the driveway at those premises. Another individual
    came out of the residence carrying  according to one officer  a small green
    object in his hand, entered the car on the passenger side and, a minute or so
    later, exited the passenger side and re-entered the house.

[9]

The appellant reversed out of the driveway and drove away. His car was
    stopped a short distance away and he was arrested at gunpoint. The police
    conducted a search of the vehicle incident to the arrest and discovered,
    amongst other things, the items referred to above, including the heroin and
    cash.

[10]

The
    arrest was ordered by the supervising officer, Detective Kay, who was not
    present during the surveillance operations but who had been receiving ongoing
    live reports of the observations of the various surveillance officers.
    Detective Kay had been a member of the Toronto Police Service for approximately
    24 years and, at the time, was a detective in the Major Crime Unit.  He had
    been a member of the drug squad for seven years and estimated that he had been
    involved in probably a thousand surveillance operations during that time alone.

[11]

On
    the
voir dire
Detective Kay acknowledged that, taken in isolation,
    neither the CIBC incident nor the Summerfield Crescent incident, would have
    provided grounds for arrest, although he found the former incident odd and
    the latter consistent with a drug transaction in which the dealer was operating
    from a standard territory of the drug dealer, namely the dealers car.
    However, taking the two incidents together with the other information he had through
    the confidential informant and the officer who obtained the information from
    the confidential informant about a heroin dealer connected to the Goreway
    address trafficking from his vehicle, he believed he had reasonable and
    probable grounds for the arrest he ordered.

Discussion

Was the
    Arrest Unlawful?

[12]

The
    appellant submits that the trial judge erred in finding that there was
    sufficient evidence that the arrest was objectively reasonable (he does not
    contest that the police had a subjective belief that they had reasonable and
    probable grounds for the arrest).

[13]

The
    existence of reasonable and probable grounds is anchored in the factual
    findings of the trial judge and entitled to deference. Whether those facts
    amount at law to reasonable and probable grounds is a question of law and
    reviewable on a correctness standard:
R. v. Shepherd
, 2009 SCC 35, [2009]
    2 S.C.R. 527, at para. 20.

[14]

The
    trial judge accurately summarized the law relating to the arrest of a person
    without a warrant in accordance with s. 495(1)(a) of the
Criminal Code
.
    He was alive to the requirement that an arresting officer must not only
    subjectively believe that he or she has reasonable and probable grounds for the
    arrest, but that those grounds must also be justified on an objective basis, as
    seen from the perspective of a reasonable person standing in the shoes of a
    police officer with comparable experience to that of the arresting officer. See
R. v. Storrey
, [1990] 1 S.C.R. 241, at p. 249-50;
R. v. Tran
,
    2007 BCCA 491, 247 B.C.A.C. 109, at para. 12. He also recognized that police
    officers may form the grounds for arrest based on information received from
    other sources, and, importantly, that in assessing the objective grounds for
    the arrest, the court must take into account the totality of the circumstances
    relied upon by the arresting officer. See
R. v. Debot
, [1989] 2 S.C.R.
    1140;
R. v. Lawes
, 2007 ONCA 10, at para. 4.

[15]

In
    assessing the totality of the circumstances that Detective Kay  an officer
    whose prior investigations had involved over a thousand drug surveillance
    operations, including the surveillance of drug dealing from a car rather than a
    specific premise  had formed his grounds for arrest based on, the trial judge
    noted (reasons, para. 35):

The arrest in this case was based on the following information
    received by Sergeant Kay:

1. Unspecific information received indirectly from a
    confidential source that the applicant was possibly trafficking in heroin from
    a car. The respondent conceded that this information is close to the level of
    an anonymous tip.

2. The activity observed in the C.I.B.C. parking lot. The
    applicant remained in his car while another man, carrying a black bag, exited
    the bank and approached the passenger side of the car. Surveillance officers
    saw the man place the bag inside the applicants car and very shortly
    thereafter walk away from the car with a black bag. Sergeant Kay viewed this as
    an odd incident but not grounds to arrest the applicant.

3. The second incident shortly thereafter at the residence on
    Summerfield Crescent. The applicant parked his vehicle in the driveway. A man
    came out of the house with something small and green in his hand.  He entered
    the car by the front passenger door. One or two minutes later, the man exited
    the car and walked back to the house.

[16]

After
    reviewing all of this evidence, the trial judge found that, having regard to
    [t]he totality of circumstances, there were objective grounds to believe that
    the applicant was involved in a drug transaction.

[17]

In
    submitting that the trial judge had erred in coming to this conclusion, Mr.
    Litkowski focused his careful submissions on the weaknesses relating to the
    information obtained by the police from the confidential informant. He argued
    that the tip was a pivotal part of the police officers decision to arrest and
    that the trial judge erred in failing to address the questions that need to be
    considered in weighing such evidence, namely (i) whether the information
    received was compelling; (ii) whether the source was credible; and (iii)
    whether the information was corroborated in other respects by the police:
Debot
,
    at p. 1168 and 1172.  He submits that there was little, if any, evidence to
    respond to these issues. The tip itself was lacking in detail. The tipster was
    untested and unproven. The information emanating from him or her was not
    reliable or compelling. For that reason, Mr. Litkowski argues, the trial judge had
    an obligation to assess the evidence surrounding the CIBC and Summerfield
    Crescent incidents with enhanced scrutiny  seeking robust corroboration
    which he failed to do.

[18]

We
    would not give effect to this ground of appeal.

[19]

The
    Crown conceded, and the trial judge proceeded on the basis that the information
    emanating from the confidential informant was weak and that the tip was more
    or less equivalent to an anonymous tip. It was accepted, therefore, that the
    tip did not provide a compelling source of information.

[20]

That
    said, we accept the Crowns submission that, although the confidential source
    information was not compelling or credible enough on its own to justify an
    arrest, it was sufficiently persuasive to warrant further investigation. Taken
    with the information then obtained by the police tying the appellant to the
    Goreway address and the grey Ford Focus he was driving, it provided at least an
    initial tableau of information against which the surveillance officers
    observations of the CIBC incident and the Summerfield Crescent incident could
    be assessed, based on the arresting officers experience.

[21]

Mr.
    Litkowski drew our attention particularly to
R. v. Dezainde
, 2014 ONSC
    1420, a decision of the Superior Court that is the source (at para. 143) of his
    robust corroboration submission. That case involved a similar bare-bones
    tip that the accused was trafficking in heroin from his vehicle together with
    surveillance information over two days involving the observations of about
    eight brief encounters similar to those in the present case. The trial judge in
Dezainde
concluded that the sheer number of incidents formed a pattern
    of conduct that in its totality provided an objective basis for the arrest. He
    commented, however, that if there had only been the tip and one stop or even
    two stops, reasonable grounds would not have existed (para. 144). Mr. Litkowski
    argues that
Dezainde
demonstrates the kind of case  whereas the case
    at bar does not  where the surveillance information [bridged] the gap between
    a mere hunch or suspicion, and reasonable grounds to believe that the Appellant
    was trafficking in heroin (FAP, para 43).

[22]

Each
    case falls to be determined on its own facts, however. In our view, determining
    whether there were objective grounds for an arrest is not a mathematical
    exercise involving the counting of the number of surveillance incidents
    (although more presumably makes the case stronger). Rather it is the nature of
    the information derived from the surveillance, taken in the context of the
    totality of the circumstances and weighed through the perspective of the
    experience of the arresting officer that informs the decision. The trial judge
    in
Dezainde
himself noted that at some point (and I need not
    determine where) in the eight stops found in the truncated summary, any thought
    of innocent coincidence disappears. A pattern of conduct emerges. (para. 144).

[23]

The
    fact that the trial judge here made a similar finding based on a smaller number
    of surveillance incidents is not fatal to his determination that, on the
    totality of the circumstances, objective grounds for the appellants arrest
    existed.  In our view, the record supports his determination and we see no
    error in his finding that Detective Kay had an objective basis, having regard
    to the totality of the circumstances, sufficient to ground the arrest.

Section
    24(2)

[24]

In
    any event, even if the trial judge did err and the arrest was unlawful because
    it violated the appellants
Charter
rights, we would not interfere
    with the trial judges finding that the evidence seized as a result of the
    search incidental to the arrest should not be excluded pursuant to s. 24(2) of
    the
Charter
.

[25]

A
    trial judges decision whether to exclude or not to exclude evidence obtained
    as a result of a
Charter
breach is discretionary and entitled to
    considerable deference:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
    at para. 86.

[26]

Here,
    the trial judge properly approached his assessment of the evidence in
    accordance with the instructions of the Supreme Court of Canada in
Grant
,
    at para. 71. A court is to assess and balance the effect of admitting the
    evidence on societys confidence in the administration of justice having regard
    to (i) the seriousness of the
Charter
breach, (ii) the impact of the
    breach on the appellants
Charter
-protected interests, and (iii)
    societys interest in the adjudication of criminal charges on their merits. As
    the Supreme Court concluded, [t]he courts role on a s. 24(2) application is
    to balance the assessments under each of these lines of inquiry to determine
    whether, considering all the circumstances, admission of the evidence would
    bring the administration of justice into disrepute.

[27]

That
    is precisely the exercise the trial judge conducted.

[28]

With
    respect to the first inquiry, he found that the police had acted on the basis
    of an honest belief and that their conduct could not be characterized as either
    deliberate or egregious even if it had violated the appellants s. 8
Charter
rights. Admitting the evidence would not undermine public confidence in the
    administration of justice. This factor favoured admission.

[29]

The
    impact of the breach, if there were one, was serious however. The appellant had
    been arrested at gunpoint in public. The second inquiry favoured exclusion.

[30]

In
    examining the third factor  societys interest in an adjudication on the
    merits  the trial judge concluded that the evidence (the heroin and cash
    seized in the vehicle) was both reliable and essential to the Crowns case. In
    view of these considerations and the seriousness of the crime, there was a
    significant interest in an adjudication on the merits. The third factor
    favoured admission.

[31]

Having
    conducted these inquiries, the trial judge then conducted the required balancing
    exercise and concluded, after weighing all factors, that the admission of the
    evidence would not, on balance, bring the administration of justice into
    disrepute. He ruled it admissible.

[32]

The
    appellant raises a number of arguments against this finding. Mr. Litkowski
    argues that the violation was serious given the frailties of the tip and the
    tipster, and that courts must be careful not to associate themselves with
    police conduct that is the result of negligence, recklessness, wilful blindness
    or bad faith. He highlights the trial judges finding that the breach had a
    serious impact on his
Charter
rights, and argues that the trial judge
    placed a disproportionate emphasis on the importance of the evidence and the
    seriousness of the crime without giving sufficient consideration to the
    publics interest in a system of justice that is beyond reproach.

[33]

Essentially
    the appellants submissions on this issue invite us to re-weigh and re-assess
    the factors playing into the
Grant
inquiry in a manner that supports
    his view of the evidence. He raises arguments that no doubt were raised before
    the trial judge and which could, perhaps, have been accepted by him. But the
    trial judge came to another conclusion based on his assessment of the
Grant
factors and after having conducted the very type of balancing exercise mandated
    in
Grant
. W
e see no
    error in law or principle in his determination that the evidence should not be
    excluded under s. 24(2), nor do we see any palpable and overriding error of
    fact.

[34]

Accordingly,
    even if the police had lacked an objective basis for arresting the appellant
    and the arrest was therefore unlawful, we would not interfere with the trial
    judges conclusion that the evidence seized should not be excluded.

The
    Trial Proper

[35]

The
    appellant makes two submissions regarding the trial judges reasons on
    conviction. He says, first, that there was a significant disparity in the
    level of scrutiny applied [by the trial judge] to defence and Crown evidence. Secondly,
    he argues that the trial judge misapprehended his evidence with respect to the
    location of the black bag containing the heroin in his vehicle when he first
    became aware of the bag.

[36]

We
    would not give effect to either of these submissions.

[37]

There
    is no basis for concluding that the trial judge engaged in an uneven scrutiny
    of the evidence. He carefully considered the evidence of the appellant as he
    was required to do, and demonstrated in his equally careful review of the
    Crowns case that he was alive to any inconsistencies in the police evidence
    (particularly the difference in the officers recollections with respect to the
    red object seen in the black bag in the hands of the individual exiting the
    CIBC branch and the fact that only one of the surveillance officers reported
    seeing the green object in the hand of the individual involved in the
    Summerfield Crescent incident).

[38]

As
    Doherty J.A. observed in
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont.
    C.A.), at para. 59, the argument that a trial judge has applied a different
    level of scrutiny in assessing the evidence of the accused and the Crown is a
    difficult argument to make successfully:

To succeed in this kind of argument, the appellant must point
    to something in the reasons of the trial judge or perhaps elsewhere in the
    record that make[s] it clear that the trial judge had applied different
    standards in assessing the evidence of the appellant and the [Crown witnesses].

[39]

There
    is nothing in the trial judges approach to his assessment of the evidence here
    that would meet that high threshold for reversible error.

[40]

Nor
    are we persuaded that the trial judge misapprehended the evidence regarding the
    location of the black bag in the vehicle when the appellant found it, or that,
    if the trial judge did, it would have made any material difference in his
    assessment of the appellants evidence.

[41]

In
    his evidence in chief, the appellant said that the bag was located on the floor
    in the back seat of the car when he first found it. In cross-examination, he
    suggested that the bag was on the back seat. The trial judge said that he did
    not accept the appellants evidence that the bag was on the floor of the car
    when he drove away on the morning of the arrest. The trial judge found, based
    on the evidence of the officers, that it was sitting, open, on the front seat
    when he was stopped and arrested by the police.

[42]

To
    the extent that the trial judge may have been mistaken about the appellants
    evidence regarding the initial location of the bag, however, we are satisfied
    that any such mistake was not material to his ultimate finding that the
    appellant had knowledge of the drugs contained in the bag because the bag was
    found, opened, beside him on the front passenger seat. The trial judges
    ultimate reasoning for his finding was that it was unlikely
someone else
with knowledge of the valuable contents of the bag would have left it lying
    around, open in the back seat area of the car. This was an inference he was
    entitled to draw.

Sentence

[43]

In
    arguing that the appellants sentence of four years imprisonment is overly
    harsh, Mr. Jackson makes three points in particular. First, he submits that the
    trial judge erred by relying solely on the dissenting reasons of Charron J.A.
    in
Zamani
, whereas the majority in that case upheld a reformatory
    sentence of two years less a day in circumstances similar to the present case.
    Secondly, although he concedes that a four year sentence is not outside the
    applicable range, he argues that it was incumbent on the trial judge to explain
    why he chose a sentence of four years as opposed, say, to one of two years, and
    that he failed to do so. Finally, he contends that the trial judge overly
    emphasized the aggravating factors in the circumstances without sufficient
    regard to the mitigating factors operating in the appellants favour.

[44]

We
    are not persuaded there is any basis for interfering with the sentence imposed.
    A trial judges sentencing decision reflects a distinctly individualized
    exercise and is subject to a highly deferential standard on review. [A]bsent
    an error in principle, failure to consider a relevant factor, or an
    overemphasis of the appropriate factors an appellate court will not intervene
    unless the sentence is demonstrably unfit or clearly unreasonable:
R. v.
    L.M.
, 2008 SCC 31, [2008] S.C.R. 163, at para. 14;
R v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. In our view, the trial
    judge made none of the proscribed errors and the sentence is neither demonstrably
    unfit nor clearly wrong. Indeed, it is well within the range.

[45]

It
    is the case that the trial judge placed some emphasis on the four year sentence
    that Charron J.A. would have imposed in dissent in
Zamani
whereas, on
    the particular facts of that case, the majority refused to interfere with a sentence
    of two years less a day. However, the majority in
Zamani
was quite
    clear in stating its view that the offence of trafficking in heroin almost
    always attracts a significant jail term and usually calls for a penitentiary
    term and that it would have been open to the judge to impose a sentence of
    three or four years on the facts.

[46]

Nor
    do we accept that a trial judge is required to give a detailed explanation of
    why he or she arrived at one number (say, 3 ½ years), as opposed to another
    (say, 2 or 2 ½ years), apart from justifying why the sentence is fit in the circumstances
    of the case, having regard to all the principles of sentencing.

[47]

Finally,
    the appellant submitted that the trial judge over-emphasized the aggravating
    factors in the case  particularly the quantity and value of the heroin  in
    determining the sentence. We disagree. The trial judge carefully outlined both
    the mitigating and aggravating factors and balanced them in arriving at his
    conclusion that four years imprisonment was an appropriate sentence. He did
    not err in this regard.

Disposition

[48]

For
    the reasons above, we dismiss the appeal as to conviction. Leave to appeal
    sentence is granted, but the sentence appeal is dismissed as well.

K.M. Weiler J.A.

R.A. Blair J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bhangal, 2016 ONCA 857

DATE: 20161116

DOCKET: C58005

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lakhvinder Singh Bhangal

Appellant

John Rosen and Lindsay Daviau, for the appellant

Scott Latimer, for the respondent

Heard:  November 9, 2016

On appeal from the conviction entered on June 28, 2013 by
    Justice Hourigan of the Superior Court of Justice, sitting with a jury, and the
    sentence imposed on December 3, 2013.

ENDORSEMENT

[1]

The appellant was a truck driver. His truck
    drifted into oncoming traffic and collided, head-on, with a mini-van, killing
    the driver.

[2]

The jury apparently accepted the Crowns
    position that the appellant knowingly breached the rules and regulations
    governing truck drivers' sleep
requirements and put
    incorrect information into his driving logs and fell asleep at
the wheel. It convicted the appellant of dangerous driving causing death
    and criminal negligence causing death.

[3]

The trial judge stayed the conviction of
    dangerous driving causing death in accordance with the principle in
Kienapple v. R.
, [1975] 1 S.C.R. 729.
    He sentenced the appellant to five years imprisonment and ordered a
    fifteen-year driving prohibition.

[4]

The appellant appeals his conviction for
    criminal negligence causing death on the basis that the trial judge:  (1)
    failed to adequately  explain to the jury the elements of criminal negligence
    causing death and how that offence differs from the offence of dangerous
    driving causing death; and (2)  failed to adequately relate the evidence to the
    offence. He does not appeal his conviction for dangerous driving causing death.

[5]

He seeks leave to appeal sentence on the bases
    that the trial judge erred in principle by not imposing a lesser sentence than
    would be imposed in a case involving impairment by alcohol and that the
    sentence imposed is demonstrably unfit.  He says a sentence of two to three
    years, and a driving prohibition of five years is a fit sentence.

[6]

In our view, the trial judge properly instructed
    the jury on the elements of criminal negligence causing death and explained the
    difference between that offence and the lesser offence of dangerous driving
    causing death.

[7]

He first instructed the jury about the elements
    of dangerous driving causing death and then told the jury that more was
    required for a person to be guilty of criminal negligence causing death. He
    explained that the appellants conduct must show a wanton or reckless disregard
    for the lives or safety of other people and that the conduct must be a marked
    and substantial departure from what a reasonably prudent person would do in the
    same circumstances. He explained how Crown counsel might prove the required
    marked and substantial departure from what a reasonably prudent person would
    have done.

[8]

In a response to a question from the jury
    seeking clarification about the difference between the offences of dangerous
    driving causing death and criminal negligence causing death, he repeated the
    relevant portions of his charge and added that in the case of criminal
    negligence causing death, the conduct must be more marked than for dangerous
    driving in both the physical and mental elements of the offence. He again
    explained the difference between criminal negligence causing death and
    dangerous driving causing death.  Appellants counsel acknowledged that the
    trial judges response to the jurys question was correct.

[9]

The trial judge reviewed both his charge and his
    proposed answer to the jurys question with counsel in advance. Trial counsel
    did not object to either.

[10]

Nor did the trial judge fail to sufficiently
    relate the evidence to the offence. After first explaining the elements of the
    two offences and the difference between them, the trial judge turned to the
    dangerous driving count. He again reviewed the elements of that offence and
    then summarized the relevant evidence, including the evidence regarding the
    regulation governing the hours that a commercial vehicle driver can be on the
    road driving and the appellants knowledge of the regulation and the evidence
    that the appellant had falsified his drivers log.  Then, the trial judge again
    set out the elements of the offence of criminal negligence causing death.

[11]

Contrary to the appellants submission, the trial judge
    did not err by at this point failing to repeat his summary of the relevant
    evidence and instead instructing the jury that the evidence that he had
    reviewed also applied to this charge. Indeed, highlighting the evidence that
    would support a finding that what the appellant did was a marked
and substantial
departure  as opposed to the marked departure standard applicable in the
    case of dangerous driving  from what a reasonably prudent person would have
    done in the circumstances would likely have harmed rather than helped the
    appellant.

[12]

We are not persuaded that there is any basis to interfere with the
    sentence imposed by the trial judge.

[13]

The trial judge imposed a sentence that in his opinion was fit in the
    particular circumstances of the case. He considered the circumstances of the
    offender, including that the appellant had no criminal record. He specifically
    acknowledged that this case was factually unique from the case that parties had
    submitted to him with regard to the appropriate range of sentences because it
    did not involve the consumption of alcohol and was in the context of the
    commercial operation of a motor vehicle.  He found that the appellant had
deliberately
ignored the driver safety rules, had
    doctored his log books in an effort to avoid his rest obligations and had put
    his economic interests ahead of public safety. He correctly concluded that the
    appellants deliberate course of conduct was a significant aggravating factor.
    Further, he found that there was a clear need for specific deterrence because
    the appellant had received a warning about excess driving only days before the
    accident.

[14]

The sentence that the trial judge imposed is not demonstrably unfit.

[15]

The appeal is accordingly dismissed. Leave to appeal sentence is
    granted, but the sentence appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bienvenue, 2016 ONCA 865

DATE: 20161117

DOCKET: C61239

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marvin Allan Bienvenue

Appellant

Howard L. Krongold, for the appellant

Peter Fraser, for the respondent

Heard and released orally:  November 10, 2016

On appeal from the conviction entered on March 18, 2015
    by Justice Catherine A. Kehoe of the Ontario Court of Justice, and the sentence
    imposed on June 25, 2015.

ENDORSEMENT

[1]

The appellant was convicted of five offences in relation to his
    possession and intent to sell a single handgun on or about February 9, 2013.
    He was also convicted of weapons trafficking on or about April 15, 2013
    contrary to s. 99 of the
Criminal Code
 count seven on the information.

[2]

He was sentenced to three and one-half years imprisonment on each of
    the five counts arising out of the February 9, 2013 incident, to be served concurrently,
    and to three years imprisonment on count seven, to be served consecutively.
    He has abandoned his appeal of the sentence imposed.

[3]

The appellants primary ground of appeal is that the trial judge erred
    in law in relation to count seven when she found that he committed the offence
    of weapons trafficking because he agreed to purchase a gun.

[4]

The offence of weapons trafficking is created by s. 99 of the
Criminal
    Code
.  It provides that an unauthorized
transfer
of a firearm is an offence. Transfer is defined by s. 84(1) as meaning to
    sell, provide, barter, give, lend, rent, sent, transport, ship, distribute or
    deliver.  The Crown concedes, and we agree, that agreeing to purchase a
    firearm does not constitute a transfer of the firearm and that count seven
    should be quashed.

[5]

In
Greyeyes v. The Queen
(1997), 116 C.C.C. (3d) 334 (S.C.C.), the
    Supreme Court held that Parliament intends to distinguish between traffickers
    and mere purchasers of illegal drugs and that purchasing an illegal drug does
    not constitute trafficking for the purpose of s. 2(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.  The definition of transfer
    in s. 84(1) of the
Criminal Code
and the definition of traffic in
    the
CDSA
are substantially similar. Moreover, in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras.
    141-147, the Supreme Court characterized  s. 99 of the
Criminal
    Code
as a weapons trafficking
    offence
The reasoning in
Greyeyes
supports the conclusion
    that transfer  in s. 84(1) does not include offer to purchase a firearm.

[6]

The appellants second ground of appeal is that the trial judge erred by
    failing to stay three of the five convictions arising out of the February 9,
    2013 incident pursuant to the
Kienapple
principle:
Kienapple v.
    The Queen
(1974), 15 C.C.C. (2d) 524 (S.C.C.).  The appellant was
    convicted of the following five offences in relation to that incident:

·

Count
    one  offering to transfer the firearm without legal authorization,
Criminal
    Code
s. 99;

·

Count
    two  weapons possession for a dangerous purpose,
Criminal Code
s. 88;

·

Count
    three  unauthorized possession of a prohibited or restricted firearm,
Criminal
    Code
s. 91;

·

Count
    four  possession of a restricted firearm with readily accessible ammunition,
Criminal
    Code
s. 95; and

·

Count
    six  possession of a firearm for the purpose of trafficking,
Criminal Code
s. 100.

[7]

All of the counts relate to the same firearm.  The appellant submits
    that counts one, two and three should be stayed.  The Crown concedes, and we
    agree, that the convictions on counts two and three should be stayed.  They are
    subsumed by count four.

[8]

The remaining issue on this appeal is whether
Kienapple
requires that count one or count six should also be stayed.

[9]

The
Kienapple
principle provides that where the same
    transaction gives rise to two or more convictions on offences with
    substantially the same elements, the accused should be convicted only of the
    more serious offence.  It is designed to protect against undue exercise by the
    Crown of its power to prosecute and punish.  It applies where there is both a
    factual and a legal nexus between the offences.  The requisite factual nexus is
    established if the charges arise out of the same transaction.  The legal nexus
    is established if the offences constitute a single criminal wrong:  see
R.
    v. Rocheleau
, 2013 ONCA 679, at para. 24.

[10]

The Crown argues that the requisite factual and legal nexus is not
    present in this case.

[11]

It submits that count six is not duplicative of count one in the
    circumstances of this case.  It says that the
actus reus
of count six was
    the appellants possession of the firearm as far back as at least February 6,
    2013, when the appellant moved it from inside his house to his backyard, whereas
    the
actus reus
of count one was his offer to sell the weapon on
    February 9, 2013.  It argues that it should be inferred from the trial judges
    finding that the appellant was fully entrenched in the drug and firearms trade
    that his purpose for possessing the firearm, throughout that time, was to sell
    it.  Therefore, it submits the offences did not overlap precisely in time and
    it is open to this court to maintain convictions on both counts one and six.

[12]

We reject these submissions.

[13]

The trial judge found, at para. 295 of her reasons, that the appellant
    was in possession of the firearm on February 9, 2013 for a dangerous purpose,
    i.e. for protection within the drug trade
or
to
    transfer it.  On February 9, 2013, which was the day after the police executed
    a search warrant on his home, the appellant texted a friend about selling the
    gun that he had hidden in his backyard.  At para. 298 of her reasons, the trial
    judge stated that she had no doubt, based on that text message, that
on February 9, 2013,
the appellant possessed the handgun
    for the purpose of a transfer.

[14]

In light of these findings, the Crowns argument fails.

[15]

We are satisfied that the record supports findings of guilt on both
    counts one and six.  The potential sentence for each is the same.  We accept
    the Crowns position that it is appropriate to stay the conviction on count
    six.

[16]

In the result, an acquittal shall be entered on count seven and the
    appellants total sentence shall be reduced by three years.  Counts two, three and
    six shall be stayed.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carr, 2016 ONCA 837

DATE: 20161107

DOCKET: C59730

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kane Barton Carr

Appellant

Jonathan Dawe, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: November 3, 2016

On appeal from the conviction entered on October 31, 2014
    by Justice Susan E. Healey of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault and break and enter and
    commit an indictable offence. The sole ground of appeal he raises is that the
    trial judge erred by finding that the video statement he gave to police upon
    arrest was voluntary and admissible in evidence.

[2]

The appellants position is that he was induced to make the statement, (which
    was essentially exculpatory) on the issue of consent, by comments made by
    Officer Baker on the approximately two-minute walk as he escorted the appellant
    to the interview room. The appellant alleged that the officer essentially told
    him that they would have to talk and figure things out and afterward he would
    be released. No recording or notes were made by the officer of a conversation,
    which he initially denied, but later acknowledged that he could have said that
    they would be having a conversation to figure things out.

[3]

The trial judge found that the officer did say that they were going to
    have a conversation to figure things out, but that the officer did not suggest
    that he would then release the appellant, and therefore he did not hold out any
    inducement. The trial judge also analyzed the appellants conduct during the
    interview, and concluded, for a number of reasons which she stated, that the
    appellants decision to give the video statement was not causally connected to
    an alleged inducement.

[4]

The appellants main argument is that because the onus to prove
    voluntariness of a statement by an accused is on the Crown, and because there
    was no record made of the alleged conversation, once the trial judge found that
    some statement was made by the officer to the appellant about the upcoming
    interview, the Crown could not prove beyond a reasonable doubt that the
    statement of the appellant was not based on an inducement and therefore was not
    voluntary.

[5]

We do not accept this submission on the facts of this case. While it is
    important for police to record their interactions with accused persons, in this
    case, the conversation was very brief and held in circumstances on the walk to
    the interview room where the officer testified that he normally says nothing
    and believed he had said nothing in this case. Both the officer and the
    appellant testified as to what was said. Although the trial judge could have
    rejected the officers testimony as unreliable (because he had no notes of it),
    in the case of this brief interaction, she was entitled to make findings based
    on the evidence she heard as well as the full context of the arrest and
    interview process, and the interaction between the appellant and the officer,
    including the recorded interview. We see no basis to set aside her findings
    based on the evidence, which she explained fully in her reasons.

[6]

While we agree with the appellant that if an offer of release had been
    made in exchange for the appellants statement, that could have constituted a
quid
    pro quo
in law, we see no error in the trial judges finding that the
    Crown had proved that no such inducement was given.

[7]

The appellant also submits that the trial judge confused two branches of
    the voluntariness analysis, whether an inducement was given and whether the
    appellants will was overborne. While the trial judge did refer to the issue of
    the appellants will being overborne, we do not agree that she applied an
    incorrect test on the issue of whether there was a causal connection between
    the appellants decision to give a statement, and an alleged inducement by the
    officer.

[8]

In the result, the appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

M.L.
    Benotto J.A.