COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Kusi, 2015 ONCA 638

DATE: 20150922

DOCKET: C58124

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ransford Nash Kusi

Appellant

John Norris and Meara Conway, for the appellant

Kevin Wilson, for the respondent

Heard: September 15, 2015

On appeal from the sentence imposed on December 3, 2013
    by Justice Alan D. Cooper of the Ontario Court of Justice.

ENDORSEMENT

[1]

Upon his arrival from Ghana at the Toronto
    Pearson International Airport on March 31, 2013, the appellant, Ransford Nash
    Kusi, was arrested for importing 1.37 kg. of heroin into Canada. He pleaded
    guilty to importing heroin, a Schedule I substance, contrary to s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19
. On
    December 3, 2013, the appellant was sentenced to 10.5 years imprisonment, less
    credit for pre-sentence custody equivalent to 1 year. The appellant seeks leave
    to appeal his sentence and, if leave is granted, appeals his sentence.

[2]

The appellant advances three main grounds of
    appeal: (i) the sentencing judge failed to give sufficient reasons for
    rejecting the appellants evidence that he had acted under pressure; (ii) the sentencing
    judge erred in finding that the appellant was a principal in the importation
    scheme, as opposed to a courier; and (iii) the sentencing judge erred by
    departing from the length of sentence discussed by this court in
R. v.
    Mensah
(2003)
,
170 O.A.C. 244, and imposing
    an unfit sentence
.

[3]

As to the standard of appellate review, absent
    an error in principle, failure to consider a relevant factor, or an
    overemphasis of the appropriate factors, a court of appeal should only
    intervene to vary a sentence imposed at trial if the sentence is demonstrably
    unfit:
R. v. M.(C.A.
),
[1996] 1 S.C.R. 500
, at
    para. 90.

First Ground of Appeal: The failure to give
    sufficient reasons for rejecting the appellants evidence that he had acted
    under pressure

[4]

The appellant operated a heavy equipment import
    business in Ghana. He testified that in 2008 he lost a cash deposit provided to
    him by a business client for a piece of equipment. According to the appellant,
    over the ensuing four-and-a-half years, the client pressed the appellant for
    re-payment of the lost cash, including threatening the appellant and his
    family. The appellant testified that when, in March 2013, his client had asked
    him to import drugs into Canada, he felt he had no choice but to agree. At the
    sentencing hearing, the appellant submitted that the duress or pressure under
    which he had acted should mitigate the sentence imposed.

[5]

The appellant submits that the sentencing judge made
    adverse credibility findings against him that led him to reject his evidence
    about acting under pressure without providing adequate reasons.

[6]

We see no merit in this submission. Although the
    sentencing judges reasons were brief, they explained why he made adverse
    credibility findings against the appellant, including why he rejected the
    appellants evidence that he had acted under pressure  i.e., there was no
    other evidence about the existence of the client; the appellants position that
    he had acted under pressure was undercut by his testimony that he would not
    have acceded to his clients request had he known the substance was heroin, not
    cocaine; and, the appellants experience as a sophisticated international
    businessman rendered unbelievable his contention that he did not know there
    would be penal consequences for importing cocaine into Canada. Those findings
    were firmly based in the evidence and provided adequate reasons for the
    sentencing judges findings about the appellants lack of credibility.

[7]

The appellant also submits that the sentencing judges
    conclusion that the appellant wasnt in complete duress signifies that he mistakenly
    thought the appellant was relying on the evidence of pressure as a defence to
    the charge, not for the purpose of mitigating the sentence.

[8]

We disagree. The exchanges between the
    sentencing judge and defence counsel during closing submissions disclose that the
    sentencing judge clearly understood that the appellant was relying on the
    evidence of pressure as a mitigating factor for purposes of sentencing.

Second Ground of Appeal: The finding that the
    appellant was a principal in the importation scheme

[9]

The sentencing judge found that the appellant
    knew what the drug was, and that he knowingly imported it into Canada as part
    of a sophisticated operation. He continued: [The appellant] may have been
    acting with others, but he certainly was a principal in the case as far as Im
    concerned. The appellant submits the sentencing judge erred in finding that he
    acted as a principal and in using that finding as an aggravating factor in
    fashioning the sentence.

[10]

We disagree.

[11]

The sentencing judges characterization of the
    appellant as a principal must be understood in the context of the submissions
    made at the sentencing hearing. Crown counsel had submitted that, while the
    appellants role in the drug importation scheme was not an aggravating factor,
    the appellant was not entitled to the mitigation of sentence that might arise
    upon a finding that he was an unsophisticated courier in the scheme. In the
    course of those submissions, Crown counsel referred the sentencing judge to the
    case of
R. v. Holder
(1998)
,
21 C.R.
    (5th) 277
(Ont. C.J.
(Gen. Div.)
)
    where, at paras. 34-35, Hill J. held that evidence that the offender had acted
    as a courier could operate as a mitigating circumstance in sentencing. Hill J.
    contrasted a courier  a lesser player in the organization, an employee, a
    runner or a mule  with a principal, who was a more active participant,
    more substantially involved, likely to receive more profit and certainly more
    intricately involved in domestic sub-distribution of the narcotic or controlled
    substance.

[12]

The sentencing judge obviously did not treat the
    appellant as an unsophisticated mule or runner, for he described the
    appellant as a sophisticated businessman who travelled around the world, who
    knew what the drug was, and knowingly imported it into Canada. Ample evidence
    supported those findings. Although the sentencing judge could have explained
    more precisely the impact of the appellants role in the importation scheme on
    sentencing, it is clear from his reasons that he did not regard that role as
    one entitling the appellant to a mitigation of sentence and, at the same time, that
    he accepted the Crowns position that the appellants role was not an
    aggravating factor.

Third Ground
    of Appeal: Unfit sentence

[13]

The appellant submits that the sentencing judge
    erred by failing to apply the length of sentence imposed by this court in its
    2003 decision in
Mensah
. In that case, the offender had been convicted
    of importing 1.038 kg. of heroin. He was a first offender and was treated as a
    courier. On appeal, this court imposed a sentence of nine years imprisonment,
    less credit for pre-sentence custody. The appellant submits that in the present
    case the appropriate length of sentence is seven years.

[14]

We see no error in the sentence of 10.5 years
    imposed by the sentencing judge. He took into account, as mitigating factors,
    the appellants guilty plea, his lack of criminal record and his prospects for
    rehabilitation. As well, the sentencing judge specifically referenced this
    courts discussion in
R. v. Sidhu,
2009 ONCA 81, 94 O.R. (3d) 609, at
    paras. 14 and 20, about the relevance of the quantity of the drug involved to the
    sentencing process. In that case, at para. 14, this court held that first
    offender couriers who import large amounts of high-grade heroin into Canada for
    personal gain should expect to receive jail sentences in the 12 to 17-year
    range. This court went on to say that lesser amounts will often attract
    similar, if slightly lower, penalties.  The examples of such lower penalties,
    given at para. 20 in
Sidhu,
disclose that, in
    the case of a courier, even a quantity of about 1 kg. of heroin could attract a
    sentence in the 9 to 11-year range.

[15]

Here, in the light of the trial judges finding
    concerning the appellants role in the heroin importation scheme and the
    quantity of the drug involved, the sentence imposed of 10.5 years imprisonment,
    less credit for pre-sentence custody, was not demonstrably unfit, and we see no
    basis for appellate interference.

Disposition

[16]

For the reasons set out above, we grant the
    appellant leave to appeal sentence, but dismiss the sentence appeal.

E.A. Cronk J.A.

Gloria Epstein J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Layugan, 2015 ONCA 606

DATE: 20150909

DOCKET: C60614

Feldman, MacPherson, and Miller J.J.A

BETWEEN

Her Majesty the Queen

Respondent

and

Marlon Layugan

Appellant

Paul Calarco, for the appellant

Joanne Stuart, for the respondent

Heard: September 8, 2015

On appeal from the judgment of Justice Brian P. OMarra
    of the Superior Court of Justice, dated June 19, 2015, dismissing the
    application for
certiorari
and setting aside the committal order of
    Justice N. Kozloff of the Ontario Court of Justice, dated November 1, 2013.

ENDORSEMENT

[1]

The appellant, Marlon Layugan, finished his shift at Fiera Foods around
    midnight on December 14, 2011. He went to the parking lot and drove his car
    down a factory laneway. His car struck a 69 year old fellow employee wearing
    dark clothes. This accident was not the appellants fault.

[2]

The appellant stopped his vehicle. He did not get out of the vehicle.
    Several seconds later, the appellant drove down the laneway.

[3]

A tractor trailer that had paused as the appellants vehicle approached
    continued down the laneway. The tractor trailer struck the unconscious victim
    and dragged him almost 100 meters. When the driver noticed that his vehicle was
    not moving properly, he stopped and discovered the victims lifeless body stuck
    between the wheel and mud flap.

[4]

About one minute after leaving the scene, the appellant returned and
    accused the driver of the tractor trailer of killing the victim. Other
    employees arrived but were unable to revive the victim. The appellant left
    again, not waiting for the police to arrive and not telling anyone that he was
    the first driver to strike the victim.

[5]

After a preliminary inquiry, the appellant was ordered to stand trial on
    charges of failing to stop at the scene of an accident knowing that bodily harm
    had been caused to a person, unlawful act manslaughter, and criminal negligence
    causing death.

[6]

The appellant applied for
certiorari
to quash the order to
    stand trial on the manslaughter and criminal negligence charges. On June 19,
    2015, OMarra J. dismissed the application. The appellant appealed this
    decision. The appeal was expedited for hearing yesterday because the trial is
    scheduled to begin September 15, 2015.

[7]

The appellant contends that in upholding the committal the application
    judge committed three errors.

[8]

First, the appellant submits that the application judge erred by
    defining legal causation too broadly in the context of this case.

[9]

We do not accept this submission. The application judge properly applied
    the reasonably foreseeable approach set out in
R. v. Maybin
, [2012]
    2 S.C.R. 30. He said:

On the evidence presented on the preliminary hearing, it would
    be open to a jury to find that the conduct of the applicant was not so
    independent of the act of the truck driver that it was no more than part of the
    unfolding of events.

The conduct of the applicant in failing to stop and assist the
    victim in these circumstances was inherently dangerous. It carried with it the
    reasonably foreseeable consequence of immediate and substantial harm to the
    victim. The death of the victim occurred in the ambit of the risk created by
    the applicant. He ought to have reasonably foreseen such harm.

[10]

We
    agree with this analysis. The tractor trailer drivers act was a natural event
    and, therefore, closely tied to the theory of foreseeability: see
Maybin
,
    at para. 50.

[11]

Second,
    the appellant asserts that the application judge erred in applying a temporal
    connection test, rather than a control or direction test, to the issue of legal
    causation.

[12]

We
    disagree. This is not a control or direction case. The tractor trailer
    driver committed no intentional act. The appellants control or direction in relation
    to the tractor trailer driver is irrelevant.

[13]

Third,
    the appellant contends that the application judge erred in his interpretation
    of what could constitute wanton or reckless disregard in the context of the
    criminal negligence charge.

[14]

We
    do not accept this submission. In our view, in the circumstances of this case
    as described above, the application judge did not err in concluding that the
    appellants act (leaving the scene knowing that the victim was lying on the
    ground and that a moving tractor trailer was nearby) carried the reasonably
    foreseeable risk of immediate and substantial harm to the victim. Hence the
    committal for trial on the charge of criminal negligence causing death was
    appropriate.

[15]

The
    appeal is dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mailhot, 2015 ONCA 637

DATE: 20150921

DOCKET: C57454

Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Mailhot

Appellant

Matthew Mailhot, appearing in person

Louis P. Strezos, as duty counsel

Eric Siebenmorgen, for the respondent

Heard and orally released:  September 15, 2015

On appeal from the conviction entered by Justice F.L.
    Forsyth of the Ontario Court of Justice, dated September 11, 2012 and the
    sentence imposed on June 27, 2013.

ENDORSEMENT

[1]

In our view, the witnesses were qualified to give opinion evidence
    identifying the appellant as the kicker in the video shown in court.  The
    witnesses were acquainted, to some extent, with the appellant and had viewed a
    video of the assault immediately after the assault occurred.  They also saw the
    appellant immediately after viewing that video.  All of these circumstances,
    referred to by the trial judge, placed the witnesses in a better position than
    the trial judge to make an identification based on the video shown in the
    courtroom.

[2]

We see no reason to doubt the provenance of the video shown in the
    courtroom or to question the failure to produce the entire actual cell block
    video at trial.  The reasons of the trial judge make it clear that the parties
    agreed as to what would be shown to the witnesses in court.  We are also
    satisfied from the record that the entire cell block video was available.

[3]

We have considered the exculpatory evidence highlighted by Mr. Strezos,
    duty counsel, in his submissions.  Two of the three pieces were in fact
    addressed and analyzed by the trial judge in his reasons.  The third, an
    officers identification of someone other than the appellant, was referred to
    in passing by the trial judge in his summary of the evidence, but was not
    separately addressed   by the trial judge in his analysis of the evidence.
    Trial judges are not required to review every piece of evidence in the course
    of their analysis.  It cannot be said that this evidence was so central as to
    make the failure to specifically refer to that evidence in the course of
    analysis as fatal to the conviction.

[4]

The conviction appeal is dismissed.

[5]

The appellant has served the custodial term of his sentence and does not
    wish to pursue the sentence appeal.  The sentence appeal is dismissed.

Doherty J.A.

M.H. Tulloch J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Owens, 2015 ONCA 652

DATE: 20150928

DOCKET: C59914

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Zachry Owens

Respondent

Mabel Lai, for the appellant

James Zegers, for the respondent

Heard: August 26, 2015

On appeal from the decision of the Summary Convictions
    Appeal Court dated December 30, 2014 by Justice Gisele M. Miller of the
    Superior Court of Justice, allowing the appeal from the conviction entered on December
    20, 2013 by Justice Julia A. Morneau of the Ontario Court of Justice.

Hourigan J.A.:

A.

Overview

[1]

The respondent was charged with operating a motor vehicle with blood
    alcohol in excess of the legal limit. At trial he brought an application to
    exclude breath sample evidence on the basis that his right to counsel under s. 10(b)
    of the
Charter
had been breached. The trial judge dismissed the
    application, holding that the respondent had never invoked his right to
    counsel, and convicted the respondent.

[2]

On appeal, the summary conviction appeal judge held that the trial judge
    erred in law in her s. 10(b) analysis by focusing on whether the
    respondents right to counsel had been invoked rather than on whether there had
    been a valid waiver of the right. The appeal judge found that the respondents s. 10(b)
    rights had been breached because there was no unequivocal waiver of the right
    to counsel, excluded the breath sample evidence pursuant to s. 24(2) of
    the
Charter
, and entered an acquittal.

[3]

In my view, the appeal judge erred in law by failing to first consider
    whether the respondent had invoked his s. 10(b) rights, because it is only
    in circumstances where a detainee has invoked his rights that the issue of
    waiver arises. The trial judge found as a fact that the respondent did not
    invoke his right to speak to counsel. This finding was open to the trial judge
    on the evidence and as a result there was no basis for appellate interference.
    Accordingly, the order of the appeal judge must be set aside and the conviction
    entered by the trial judge restored.

B.

Background Facts

[4]

The objective facts of the respondents interaction with the police are
    not contentious. The respondent was sitting in his parked pick-up truck, out of
    gas at the side of the highway, when he was approached by two police officers, responding
    to an earlier 911 call alerting them to the respondents erratic driving. The
    police formed a reasonable suspicion that the respondent had been drinking and
    demanded that he provide a breath sample. He did so, and the screening device
    registered a fail. This gave the police reasonable grounds to arrest the
    respondent and demand that he provide further breath samples at the police
    station.

[5]

Upon arrest, the police advised the respondent of his right to counsel
    using the standard language from the O.P.P. issued card. The arresting officer
    asked the respondent: Do you understand? and the respondent answered: Yes. The
    arresting officer then asked the respondent: Do you wish to call a lawyer
    now? and the respondent replied: No, not right now. The respondent was then
    taken to the police station where he provided breath samples into an
    Intoxilyzer device that registered a reading of 160 mg of alcohol in 100 mL of
    blood. When the respondent was returned to the arresting officer, that officer
    again asked whether the respondent wished to speak to counsel. The respondent
    replied: No, I have nothing to hide. The respondent did not ask to speak to a
    lawyer at any point while in police custody.

[6]

The perspectives of the arresting officer and the respondent regarding
    these events differ. The arresting officer testified that he interpreted the
    respondents reply of No, not right now to mean that the respondent did not
    want to speak to a lawyer at that instance and presence and that is why he
    asked the follow up question at the police station. However, the arresting
    officer also testified that it was his usual practice to ask a detainee more
    than once if he or she wishes to contact counsel because he understood it to be
    important. It was his evidence that the respondents replies did not indicate
    to him that the respondent wanted to speak to a lawyer during their interaction.

[7]

In contrast, the respondent testified that he replied as he did when he
    was first advised of his right to counsel because he did not understand how he
    could call counsel now as it was 2:00 a.m. and he was handcuffed in the back
    of a police cruiser. The respondent agreed, however, that he had told the
    arresting officer that he understood his rights. He further testified that he
    did not raise the issue of speaking with counsel at any point because he felt that
    he was not in a position to make requests of the police and should instead
    follow their lead. The respondent also testified that he wanted the opportunity
    to speak privately to counsel and assumed that he would be given that
    opportunity when he was taken to the police station. He explained his comment
    about having nothing to hide as meaning that, given that the breath samples
    had already been taken, the cat was out of the bag and that there was no
    point in speaking to a lawyer then and there.

C.

Decisions Below

(1)

Decision of the Trial Judge

[8]

The trial judge found that the informational component of s. 10(b)
    was satisfied when the arresting officer read from the O.P.P. issued card.

[9]

The trial judge then reviewed the circumstances of the interaction
    between the respondent and the police to determine whether the right to counsel
    had been invoked. She noted that there was nothing in the evidence to suggest
    that the police were acting officiously or in an intimidating manner. There was
    also no evidence to suggest that the respondent was confused or did not
    understand his right to counsel. She further found that the arresting officer
    did not mislead the respondent. The trial judge concluded that the respondent
    did not invoke his right to consult with counsel.

[10]

The
    trial judge dismissed the
Charter
application and admitted the breath
    sample evidence. She found proof beyond a reasonable doubt that the respondent
    was operating a motor vehicle with more than 80 mg of alcohol in 100 mL of
    blood and entered a finding of guilt accordingly.

(2)

Decision of the Appeal Judge

[11]

The
    respondent appealed his summary conviction. The sole issue on appeal, as at
    trial, was the admissibility of the breath sample evidence in light of the
    respondents claim that his s. 10(b) rights were breached.

[12]

The
    appeal judge found that the trial judge focused on the wrong legal question and
    erred in law when she failed to consider whether the respondents words No,
    not right now amounted to a clear and unequivocal waiver of the right to
    counsel. The appeal judge concluded that they did not as No, not right now implied
    a future exercise of the right. As the respondent did not unequivocally waive
    his rights, the collection of breath samples by the police before the
    respondent had a meaningful opportunity to contact counsel amounted to a violation
    of the respondents s. 10(b) rights.

[13]

Having
    found a breach of the respondents s. 10(b) rights, the appeal judge
    conducted the analysis mandated by
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353, to determine whether the breath samples should be excluded pursuant
    to s. 24(2) of the
Charter
. Under the first stage of the
Grant
analysis, she found that the
Charter
-infringing state conduct was
    serious because, once at the police station, the arresting officer deliberately
    delayed offering the respondent an opportunity to contact counsel until after
    the breath samples were taken. This stage favoured exclusion. The second stage
    also favoured exclusion, as the effect of the breach was to deny the respondent
    the opportunity to make an informed decision about providing incriminating
    evidence to police. It is unclear from her reasons what conclusion the appeal
    judge reached regarding the third stage of the
Grant
analysis, being
    societys interest in the adjudication of the case on its merits. Ultimately, the
    appeal judge found that given the serious and deliberate nature of the breach,
    the admission of the breath sample evidence would bring the administration of
    justice into disrepute. She allowed the appeal, set aside the conviction, and entered
    an acquittal.

D.

Positions of the Parties

[14]

The
    Crown seeks leave to appeal on the ground that the appeal judge erred in law by
    finding that the issue of waiver arose without the detainee first establishing
    that he invoked his right to counsel. The Crown argues that this erroneous
    analytical approach has significant ramifications for the administration of
    justice, particularly in the Ontario Court of Justice, where the decision is
    binding appellate authority. The Crown also argues that the trial judges finding
    of fact that there was no invocation of the right to counsel was correct and is
    owed deference. In the alternative, the Crown submits that if this court finds
    that the summary conviction judge erred in her analytical approach but that the
    respondents s. 10(b) rights were nonetheless breached, the breath sample evidence
    should not have been excluded under s. 24(2) of the
Charter
.

[15]

The
    respondent submits that leave to appeal should not be granted because the law
    is clear: a detainee must invoke the right to counsel, and the standard for
    waiver of that right is high. The respondent does not argue that the summary
    conviction appeal judge was correct in her analytical approach to the issue.
    Rather, he submits that the statement No, not right now implies a future
    exercise of the right to counsel and that he thereby invoked his right to
    counsel.  Thus, the arresting officer failed in fulfilling his implementational
    duty under s. 10(b) of the
Charter
to provide the respondent with
    an opportunity to contact counsel after his rights were invoked. Further, the
    respondent submits that the appeal judge conducted the three-stage
Grant
analysis thoughtfully and thoroughly and was correct in excluding the evidence.

E.

Issues

[16]

This
    appeal raises the following issues:

1.

Should leave to appeal be granted?

2.

Did the appeal judge err in finding a breach of the respondents s. 10(b)
    rights?

3.

Should the evidence have been excluded under s. 24(2) of the
Charter
?

F.

Analysis

(1)

Leave to Appeal

[17]

The
    relevant factors to be considered when deciding whether to grant leave to
    appeal in summary conviction proceedings are: (i) the significance of the
    proposed question of law to the administration of justice, and (ii) the
    strength of the appeal:
R. v. R. (R.)
, 2008 ONCA 497, 90 O.R. (3d)
    564, at para. 37. Leave may be granted if the appeal is arguable, but the
    question has broader significance to the administration of justice; or, leave
    may be granted if there is a clear error,  even though the question is not
    one of general significance:
R. v. Manchulenko
, 2013 ONCA 543, 116
    O.R. (3d) 721, at para. 45;
R. (R.)
, at para. 37.

[18]

In
    my view, in the present case both factors favour granting leave.

[19]

First,
    it is important that lower courts have guidance regarding the correct
    analytical approach to applications under s. 10(b) of the
Charter
.
    The issue raised in this appeal, specifically, concerns whether a detainee is
    obligated to establish an invocation of his or rights as prerequisite to a
    consideration of the issue of waiver. This is an issue that frequently arises
    in the context of drinking and driving offences, but has broader implications
    for any investigation in which a properly informed detainee elects not to
    invoke his or her right to counsel. Thus, the proposed question of law has
    broad significance for the administration of justice in Ontario.

[20]

Second,
    as discussed further below, I am also of the view that the appeal is
    meritorious. The law requires a properly informed detainee to invoke his or her
    right to counsel before any implementation duties on the part of the police are
    triggered. In addition, I agree with the submission of the Crown that logically
    there can be no waiver of a right to consult counsel until there has been an
    invocation of the right; waiver must be tethered to an existing request to
    consult counsel.

[21]

For
    the foregoing reasons, I would grant leave to appeal.

(2)

Section 10(b) Breach

[22]

In
    her analysis, the appeal judge went straight to the issue of waiver of the
    implementational duties under s. 10(b), bypassing any consideration of
    whether the respondent had invoked his right to consult with counsel and never
    considering the trial judges findings with respect to this issue. Indeed, the
    appeal judge held that the trial judge erred in law by deciding the
Charter
application on the issue of invocation instead of waiver. In my view, it was
    the appeal judge who erred in her approach. The issue of waiver of s. 10(b)
    rights only arises when the accused has established on a balance of
    probabilities that he invoked his right to counsel.

[23]

Professor
    D. Stuart discusses the development of the law regarding the interaction
    between the invocation of the right to counsel and the corresponding police implementation
    duties in
Charter Justice in Canadian Criminal Law
, 6th ed. (Toronto:
    Carswell, 2014), at p. 429:

In
Manninen
, the Supreme Court held that the right to
    counsel leads to correlative obligations on the police. The Court left open the
    question of whether the police duties were dependent upon the accused asserting
    the right as Manninen had done. The Ontario Court of Appeal in
Anderson
had earlier held that the police duties only arose where the accused had in any
    manner chosen to invoke or exercise his right to retain and instruct counsel.
Anderson
has been strongly criticized as unduly weakening the right to counsel by only
    protecting those accused who are knowledgeable, thoroughly understanding and
    assertive. The language of obligation throughout
Manninen
and its
    strong ruling on the facts suggested that the Supreme Court might well reverse
Anderson
.
    In
Baig
(1987), the Supreme Court did exactly the opposite in adopting
    the
Anderson
proposition that the duties depend on the accused
    asserting his right.

[24]

The
    Supreme Court has been consistent since
R. v. Baig
, [1987] 2 S.C.R.
    537, in holding that implementation duties are not triggered unless and until
    a detainee indicates a desire to exercise his or her right to counsel:
R.
    v. Bartle
, [1994] 3 S.C.R. 173, at p. 192;
R. v. Willier
, 2010
    SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33;
R. v. Taylor
, 2014 SCC
    50, [2014] 2 S.C.R. 495, at paras. 23-24. This court has also held that
    implementation obligations arise only when detainees express a wish to exercise
    their right to counsel:
R. v. Fuller
, 2012 ONCA 565, 295 O.A.C. 309,
    at para. 17.

[25]

The
    Supreme Court has also made clear that police implementational obligations
    flowing from s. 10(b) are not absolute. Absent invocation of the right to
    counsel and reasonable diligence in its exercise by the detainee, police duties
    to provide a reasonable opportunity to consult counsel and to refrain from
    soliciting evidence will either not arise in the first place or will be
    suspended:
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at para.
    27.

[26]

While
    the onus rests with the Crown to prove that a detainee has unequivocally waived
    his right to consult counsel, and the standard required for an effective waiver
    is very high, the issue of waiver arises only if a detainee first asserts the
    right:
R. v. Prosper
, [1994] 3 S.C.R. 236, at pp. 274-75;
Sinclair
,
    at paras. 27-28. Further, absent proof of circumstances indicating that
    the accused did not understand his right to retain counsel when he was informed
    of it, the onus has to be on him to prove that he asked for the right but it
    was denied or he was denied any opportunity to even ask for it:
Baig
,
    at p. 540, citing
R. v. Anderson
(1984), 10 C.C.C. (3d) 417 (Ont
    C.A.), at p. 431.

[27]

Thus,
    once the trial judge found that the police had complied with the informational
    component of s. 10(b), the next question for determination was not whether
    the Crown had established that the respondent had
waived
his right to
    consult counsel, but whether the respondent had established that he
invoked
his right to consult counsel and thereby triggered the implementational duties.

[28]

As
    stated by Rosenberg J.A. in this court, the question of whether a detainee
    asserted a desire to consult with counsel is essentially a question of fact:
R.
    v. Backhouse
(2005), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 77-78. The
    appeal judge was obliged to first acknowledge the finding of fact by the trial
    judge that there had been no invocation of the right to counsel.  Next, she was
    required to defer to that finding absent a palpable and overriding error:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10. The appeal
    judge made no acknowledgement of the factual finding and conducted no analysis
    of its validity.

[29]

In
    my view, the trial judges finding that the respondent did not invoke his right
    to consult counsel contains no palpable and overriding error that would permit
    appellate interference. On the facts of this case, it was open to the trial
    judge to find that the arguably ambiguous statement No, not right now did not
    qualify as an invocation of the right to counsel. The respondent testified that
    he answered Yes to the arresting officers question Do you understand?, and
    further that he understood his right to counsel when it was given to him by the
    arresting officer. He further testified that he did not ask to speak to counsel
    at any

point during his interaction with the police. While the
    arresting officer asked the

respondent a second time whether he wished to contact
    counsel, the officer testified that it was his standard practice to ask more
    than once, and that at no point did he believe that the respondent wished to
    speak with a lawyer.

[30]

The
    trial judge indicated that she did not believe the respondents explanation for
    why he declined to contact counsel when he was asked at the police station.
    Further, she found that the interactions between the police and the respondent
    were polite and non-confrontational, that the arresting officer did not mislead
    the respondent as to his rights, and that the respondent was not confused.

[31]

Given
    this basis in the evidence, the trial judges factual finding that the
    respondent did not invoke the right to consult counsel should have been
    deferred to by the appeal judge. She erred in ignoring this finding and deciding
    the case on the basis of a waiver analysis.

(3)

Section 24(2) Analysis

[32]

Given
    my conclusion that there was no breach of s. 10(b), it is unnecessary to
    consider the summary conviction appeal judges decision to exclude the evidence
    under the
Grant
analysis.

G.

Disposition

[33]

For
    the foregoing reasons, I would allow the appeal, set aside the order of the
    summary conviction appeal judge and restore the conviction entered by the trial
    judge.

Released: September 28, 2015 JL

C.W.
    Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robson, 2015 ONCA 634

DATE: 20150918

DOCKET: C58289

Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Robson

Appellant

Richard Niman, for the appellant

Lisa Mathews, for the respondent

Heard:  September 17, 2015

On appeal from the decision of Justice James W. Sloan of
    the Superior Court of Justice, dated January 7, 2014, dismissing the appeal
    from the conviction of Justice J.E. LeRoy of the Ontario Court of Justice,
    dated December 4, 2012 and the sentence imposed on January 25, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We do not accept that the unusual fact situation of this case requires
    this court to grant leave.  The law of entrapment is well settled.  Its
    application to these facts is not controversial.  The merit of a further appeal
    is not apparent to this court.

[2]

Leave to appeal refused.


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. Tyler, 2015 ONCA 599

DATE: 20150908

DOCKET: C57981

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Edward Tyler

Appellant

J. Scott Cowan, for the appellant

Amy Rose, for the respondent

Heard: August 25, 2015

On appeal from the convictions entered on April 10, 2013,
    and the sentence imposed on September 20, 2013 by Justice Anne Mullins of the Superior
    Court of Justice, sitting with a jury.

Pardu J.A.:

[1]

This is an appeal from convictions on two counts of invitation to sexual
    touching of a child. The jury acquitted the appellant of sexual assault. The
    appellant argues that on the facts of this case these verdicts are necessarily
    inconsistent, and submits that the convictions on the charges of invitation to
    sexual touching must be set aside.

[2]

The complainant testified that when she was 13 years old the appellant
    began making her masturbate him and perform oral sex on him, that he tried to digitally
    penetrate her, and forced himself on top of her. The complainant said that the
    appellant would tell her to put her hand or her mouth on his penis, or kiss it.
    She said the sexual contact occurred 38 or 39 times. The appellant denied
    participating in any sexual communication or contact.

[3]

The trial judge correctly instructed the jury as to the elements of the
    offences. She instructed the jury that each of the following had to be
    established beyond a reasonable doubt:

Count 1: Invitation to Sexual
    Touching

1

The appellant invited the complainant to touch his penis with her mouth.

2

This touching was for a sexual purpose.

Count 2: Initiation to Sexual
    Touching

1

The appellant invited the complainant to touch his penis with her hand

2

This touching was for a sexual purpose.

Count 3: Sexual Assault

1

The appellant intentionally touched the complainant with his fingers or
    penis

2

That touching took place in circumstances of a sexual nature.

[4]

For the purpose of sentencing, the trial judge interpreted the jurys
    verdict as a finding that the invitations to touching for a sexual purpose were
    made by the appellant, but that actual physical contact did not occur. Consent
    was no defence in this case because of the complainants age.

[5]

If the complainant did perform oral sex or masturbate the appellant, it
    is common ground on appeal that his participation in these events would have
    amounted to a sexual assault by him.

[6]

The appellant argues that there was no suggestion on the evidence that
    the complainant did not comply with the invitations to sexual touching uttered
    by the appellant. Therefore, the appellant submits, the acquittal on the sexual
    assault count cannot be reconciled with the convictions on the invitation to
    sexual touching counts.

The Legal Test

[7]

The standard of review applied to jury verdicts is whether the verdict
    could reasonably have been rendered by a properly instructed jury acting
    judicially: [I]n deciding whether the verdict is one which a properly
    instructed jury could reasonably have rendered, the reviewing court must ask
    not only whether there is evidence in the record to support the verdict, but
    also whether the jurys conclusion conflicts with the bulk of judicial
    experience (
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para.
    28).

[8]

The test to be applied by a reviewing court to determine whether jury
    verdicts are inconsistent is whether the verdicts are supportable on any
    theory of the evidence consistent with the legal instructions given by the
    trial judge (
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381, at
    para. 7). On a multi-count indictment against a single accused, the verdicts
    will be supportable if the trial judges instructions were proper legal instructions
    that could have led the jury to accept a theory of the evidence producing these
    verdicts (
R. v. S.L.
, 2013 ONCA 176, 300 C.C.C. (3d) 100, at para.
    5). As indicated in
Pittiman
, at para. 6, the authority to set aside a
    verdict on the ground of inconsistency is based on the jurisdiction accorded by
    s. 686(1)(a)(i) of the
Criminal Code
to set aside a verdict on the
    ground that it is unreasonable or cannot be supported by the evidence. The
    court noted, at paras. 6-7:

Hence, before an appellate court may interfere
    with a verdict on the ground that it is inconsistent, the court must find that
    the verdict is
unreasonable
. The appellant bears
    the onus to show that no reasonable jury whose members had applied their minds
    to the evidence could have arrived at that conclusion:
R. v.
    McLaughlin
(1974), 15 C.C.C. (2d) 562 (Ont. C.A.).

The onus of establishing that a verdict is
    unreasonable on the basis of inconsistency with other verdicts is a difficult
    one to meet because the jury, as the sole judge of the facts, has a very wide
    latitude in its assessment of the evidence. [Emphasis in original.]

Analysis

[9]

There is no necessary logical inconsistency between the conviction on
    the invitation to sexual touching counts and the acquittal on the sexual
    assault count. The jury could have accepted some, none or all of the
    complainants evidence. If the jury concluded that the invitations had been
    extended for a sexual purpose but that no contact actually occurred, these
    verdicts would have resulted. These verdicts can be reconciled on a rational
    and logical basis, however, looking at the record through the lens of judicial
    experience, it seems unlikely that the jury would have taken that view of the
    evidence.

[10]

It
    is more likely that the jury did not understand that participation by the
    appellant in physical contact of a sexual nature between the complainant and
    the appellant amounted to an assault, even if it resulted from the complainant
    complying with the appellants invitation. They may not have understood that the
    requirement that the Crown prove that he intentionally touched the
    complainant with his penis included this kind of physical contact. This
    misunderstanding, coupled with a doubt on whether the appellant digitally
    penetrated the complainant as she alleged, could have resulted in the acquittal
    on the sexual assault charge.

[11]

The
    trial judge accurately summarized the evidence, and her instructions on the law
    were correct, so far as they went.

[12]

Trial
    counsel did not object to any aspect of the jury charge now challenged on
    appeal. Had the trial judge expressly told the jury that compliance with the
    invitation to sexual touching amounted to a sexual assault by the appellant,
    this would have likely enlarged the instances of conduct potentially forming
    the basis for conviction on the sexual assault count. If the trial judge erred
    in failing to do so, this error enured to the benefit of the appellant. It does
    nothing to undermine the convictions for invitation to sexual touching. These
    convictions were reasonable and were amply supported by the evidence.

[13]

There
    is no reason to believe that the verdicts were the product of any unjustifiable
    compromise.

[14]

Accordingly,
    for these reasons, the appeal is dismissed.

Released: September 8, 2015                                          G.
    Pardu. J.A

(JL)                                                             I
    agree John Laskin J.A.

I
    agree C.W. Hourigan J.A.