COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Del Mastro, 2017 ONCA 711

DATE: 20170913

DOCKET: C61958

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dean Del Mastro

Appellant

Scott Fenton, for the appellant

Croft Michaelson, Q.C. and Brendan Gluckman, for the
    respondent

Heard: June 22, 2017

On appeal from the judgment of Justice J. Bryan
    Shaughnessy of the Superior Court of Justice, dated April 5, 2016, with reasons
    reported at 2016 ONSC 2071, [2016] O.J. No. 1731, dismissing an appeal from the
    convictions entered on October 31, 2014, by Justice Lisa Cameron of the Ontario
    Court of Justice, with reasons reported at 2014 ONCJ 605, [2014] O.J. No. 5482.

Strathy C.J.O.:

A.

synopsis

[1]

The appellant, Dean Del
    Mastro, the successful candidate for the riding of Peterborough in the 2008
    federal election, was tried in the Ontario Court of Justice on charges under
    the
Canada Elections Act
, S.C. 2000, c. 9 (
CEA
).
[1]
The Crown alleged that he had circumvented election expense limits by using his
    own money to purchase voter canvassing and get-out-the-vote (GOTV) services,
    persuaded the supplier to send him a false invoice and participated with his
    official agent in filing a false election campaign return.

[2]

He was convicted of
    exceeding his election expense limit (count one), of wilfully exceeding his
    personal contribution limit (count two) and of filing a false or misleading election
    campaign return (count three). He was sentenced to 30 days in jail together
    with a four month conditional sentence and 18 months probation. The trial judge
    also imposed a restitution order requiring him to pay $10,000 to the
    Peterborough Electoral District Association.

[3]

Del Mastro appealed his
    conviction and sentence to the Superior Court of Justice. His appeals were
    dismissed by the Summary Conviction Appeal Judge (SCAJ), subject only to a
    variation of his sentence setting aside the restitution order. He now appeals,
    with leave, to this court.

[4]

For the reasons set out
    below, I would dismiss the appeal.

[5]

On the first two counts, I
    reject his submission that the trial judge and the SCAJ erred in their
    interpretation of the
CEA
by failing to consider whether the work for
    which he was billed was actually used by his campaign and whether the amount he
    was billed reflected the commercial value of the work.

[6]

On the third count, it is my
    view that Del Mastro was properly found guilty as a party to an offence
    committed by his official agent. The party liability provisions of the
Criminal
    Code
apply to offences under the
CEA
. All of the provisions of
    the
Code
are incorporated into offences created by other federal
    legislation by virtue of s. 34(2) of the
Interpretation Act
, R.S.C.
    1985, c. I-21, unless that legislation otherwise provides. I find that the
CEA
does not otherwise provide.

[7]

I would decline to consider Del
    Mastros assertion that the trial judge erred in drawing an adverse inference
    from his failure to call certain witnesses. Del Mastro neither sought nor
    obtained leave to appeal on this issue.

[8]

Del Mastro abandoned his
    sentence appeal in oral argument.

B.

the
canada elections act

[9]

To give context to the facts,
    issues and arguments on this appeal, I begin by explaining how the
CEA
regulates election financing and, in particular, campaign spending.
[2]

[10]

The primary purpose of the federal election financing system, embodied
    in the
CEA
, is to ensure that Canadian elections
    are fair and democratic and that all Canadians have a fair and equitable chance
    to be heard and elected. This is achieved, in part, through election expense
    limits and the provision of public financing to qualified candidates through partial
    expense reimbursement. In return, parties and candidates must adhere to strict
    spending and financial reporting rules, with compliance monitored by Elections
    Canada.

[11]

The
CEA

regulates election financing by,
    among other things: (a) limiting political contributions, both in the amount
    that an individual can contribute and by prohibiting contributions from all but
    individuals; (b) imposing election expense limits on individual candidates and
    on registered parties; (c) providing for partial reimbursement, out of public funds,
    of election expenses incurred by candidates and registered parties; and (d)
    requiring candidates and registered parties to disclose their electoral
    campaign expenses and contributions by filing returns within specified time
    limits and by providing for auditing of those returns to demonstrate compliance
    with the legislation.

[12]

By requiring reporting and auditing of campaign contributions and election
    expenses, the
CEA

ensures accountability and
    transparency, thereby enhancing public confidence in the fairness of the
    electoral process.

[13]

The
    election expense limits provide a level playing field for those seeking elected
    office in two ways relevant to this appeal. First, there is a limit on the
    amount of expenses a candidate may incur during an election campaign. In 2008, the
    limit applicable to the Peterborough riding was $92,566. Second, the
CEA
also limits the amount that a candidate may personally contribute to his or her
    campaign. In 2008, the limit was $2,100.

[14]

These
    limits are tied to the definition of election expense. Section 443(1) of the
CEA
provides that [n]o candidate, official agent of a candidate or person
    authorized under paragraph 446(c) to enter into contracts shall incur election
    expenses in an amount that is more than the election expenses limit calculated
    under section 440. Under s. 497(1)(s), any official agent or candidate who
    exceeds the election expenses limit is guilty of a strict liability offence.

[15]

A
    candidate is entitled to partial reimbursement of election expenses, provided
    he or she complies with the reporting requirements (ss. 464, 465). At the
    relevant time, candidates were entitled to reimbursement of 60% of allowable
    election expenses.

[16]

Section
    406 defines an electoral campaign expense of a candidate as an expense
    reasonably incurred as an incidence of the election, including an election
    expense, a personal expense, and any fees of the candidates auditor and costs
    incurred as a result of a recount.

[17]

The
    definition of election expense is set out in s. 407, which is the central
    provision at issue in this appeal. It defines election expense in a general
    way in ss. 407(1):

(1)
An election expense includes any cost
    incurred, or non-monetary contribution received, by a registered party or a
    candidate, to the extent that the property or service for which the cost was
    incurred, or the non-monetary contribution received, is used to directly
    promote or oppose a registered party, its leader or a candidate during an
    election period.

[18]

Section
    407(3) identifies certain expenses that are expressly included within the
    definition, notably, in ss. 407(3)(e), voter surveys:

(3)
An election expense referred to in
    subsection (1) includes a cost incurred for, or a non-monetary contribution in
    relation to,

(a) the production of advertising or promotional
    material and its distribution, broadcast or publication in any media or by any
    other means;

(b)
the payment of remuneration and expenses to
    or on behalf of a person for their services as an official agent, registered
    agent or in any other capacity;

(c)
securing a meeting space or the supply of
    light refreshments at meetings;

(d)
any product or service provided by a
    government, a Crown corporation or any other public agency; and

(e)
the conduct of election surveys or other
    surveys or research during an election period.

[19]

Subsection 407(4) states:

(4) In subsection (1),
cost incurred
means an expense
    that is incurred by a registered party or a candidate, whether it is paid or
    unpaid.

[20]

The
    parties endorse the test for an election expense set out in
Callaghan v.
    Canada (Chief Electoral Officer)
, 2010 FC 43, [2011] 2 F.C.R. 3, revd 2011
    FCA 74, [2011] 2 F.C.R. 80, at para. 120: (i) it must have been incurred by the
    candidate reporting it; (ii) the goods or services for which the expense was
    incurred must be used during the election period; and (iii) the goods and
    services must be used to directly promote or oppose a candidate. The third
    element was referred to in that case as the purpose test.

[21]

Every
    candidate must have an official agent, who is responsible for administering the
    candidates financial transactions for the electoral campaign and for reporting
    them in accordance with the
CEA
(s. 436). The official agent must open
    a separate bank account, in his or her name as official agent, for expenses. All
    financial transactions in relation to the campaign that involve the payment or
    receipt of money are to be paid from or deposited to the account (s. 437(1),
    (3)). After the election, the account must be closed and the official agent
    must provide a final statement of the account to the Chief Electoral Officer (CEO)
    (s. 437(4), (5)). The official agent or the candidates chief financial agent
    must provide the CEO with an audited electoral campaign return showing electoral
    and other expenses and the commercial value of non-monetary contributions
    received by the candidate, among other things (ss. 451-462).
[3]

[22]

It
    is an offence for a candidate or an official agent to provide the CEO with a
    return that he or she knows or ought reasonably to know is false or misleading
    or does not substantially set out the information required to be filed.
[4]

[23]

The
    candidates official agent is the only person permitted to pay expenses or
    accept contributions in relation to the campaign: see ss. 438(2), 438(4). No
    person other than the candidate, his or her official agent, or a person
    authorized to do so by the official agent is permitted to incur expenses in
    relation to the campaign: see s. 438(5).

[24]

With
    this context, I turn to the events giving rise to the charges against the
    appellant and the evidence at trial, as it relates to the issues on appeal.

C.

Background

[25]

The
    appellant does not challenge the underlying findings of fact made by the trial
    judge as confirmed by the SCAJ. His appeal is based on alleged legal errors in
    the interpretation of the
CEA
. Accordingly, I propose to give only a
    brief summary of the material background facts. In the next section, I will
    summarize the key conclusions in the courts below.

[26]

The
    appellant was the incumbent Member of Parliament for the federal riding of
    Peterborough. He ran for re-election in the 2008 federal election. The election
    writ period was from September 7, 2008 to October 14, 2008.

[27]

The
    allegations against the appellant arose from his dealings with Frank Hall
    (Hall), the president of Holinshed Research Group (Holinshed). Holinshed
    conducted voter identification telephone campaigns, contacting potential voters
    to determine whether they were likely to support the candidate. It also
    conducted GOTV services, in which voters identified as favourable to the
    candidate were contacted on election day to encourage them to vote.

[28]

Hall
    testified that the appellant spoke to him before the writ period about using
    Holinsheds services for voter identification and GOTV services in the
    election. Hall sent the appellant a quote for $21,600, excluding GST.

[29]

The
    appellant did not initially pursue the quote, because he thought he would be
    eligible for similar services provided by the Conservative Party. Shortly after
    the start of the election, when the anticipated party support was not
    forthcoming, the appellant renewed discussions with Hall, who sent him a new
    quote from Holinshed, this time for $21,000, including GST. The appellants
    campaign manager, John McNutt (McNutt) faxed back a signed and accepted copy
    of the invoice dated September 15, 2008.

[30]

The
    appellant initially took steps, through his official agent Richard McCarthy
    (McCarthy) to pay the invoice through his campaign account. It was soon realized,
    however, that the payment of Holinsheds invoice would put the appellants
    campaign over his expense limit. Hall was advised that the campaign could not
    pay the invoice. Predictably, Holinshed downed tools and stopped making voter
    identification calls.

[31]

The
    trial judge accepted Halls evidence that on October 2, 2008, the appellant
    told him that he wanted the calling resumed as soon as possible and that he
    would pay for it himself. The appellant asked Hall to work with him on the
    invoicing for Holinsheds services.

[32]

Hall
    testified that on about October 9, 2008, the appellant wrote a personal cheque
    to Holinshed for $21,000. The cheque was back-dated to August 18, 2008  that
    is, a date before the election writ period.

[33]

With
    the funds in hand and its invoice paid, Holinshed resumed voter identification
    calling and also provided GOTV services on election day.

[34]

Two
    months after the election campaign ended, on December 12, 2008, Hall sent the
    appellant an invoice, dated September 14, 2008, in the amount of $1,575, for
    limited voter GOTV.

[35]

Like
    all candidates, the appellants campaign was required to file an electoral
    campaign return with Elections Canada. Both the candidate and official agent
    are required to solemnly declare that the information contained in the return
    is correct and that election expenses have been properly recorded.

[36]

The
    appellants return listed the amount paid to Holinshed as $1,575. His personal
    payment of $21,000 was not reported. The total amount listed for election
    campaign expenses was $91,770, ostensibly just under the election expense limit
    of $92,566. The appellant signed the solemn declaration on February 10, 2009
    and McCarthy signed it on February 11, 2009. The return was then filed with
    Elections Canada.

[37]

Some
    time later, the appellant and Hall had a falling out. Hall went to Elections
    Canada and spilled the beans about the work done by Holinshed for the
    appellants campaign during the 2008 election. These charges ensued.

D.

proceedings and decisions Below

(1)

Trial

[38]

The
    appellant was tried with McCarthy in the Ontario Court of Justice over the
    course of 15 days.

[39]

The
    Crowns position at trial was that the appellants personal payment of $21,000
    to Holinshed was an election expense and that, knowing the payment brought his
    campaign over its spending limit, the appellant and McCarthy attempted to
    conceal the expense, through a false invoice for $1,575.

[40]

The
    defence position was that Holinsheds $21,000 invoice did not reflect the appellants
    discussions with Hall and was signed in error. The defence also took the
    position that in order to prove excessive election spending, the Crown was
    required to prove that the expense was used to directly promote or oppose a candidate
    during the election period. Defence counsel submitted that there was no proof
    that the work done by Holinshed was actually used to directly promote the
    appellant.

[41]

The
    trial judge rejected this argument. She held that the categories of expenses
    identified in s. 407(3) of the
CEA
are deemed to be election expenses.
    Since the voter identification and GOTV work done by Holinshed was a deemed
    election expense under s. 407(3)(e), it was unnecessary to consider the extent
    to which the services were used to directly promote the candidate. If it were
    necessary to decide whether Holinsheds services were used to directly promote the
    appellant, the trial judge found they were.

[42]

The
    trial judge also concluded that it was unnecessary to consider the commercial
    value of the services because commercial value was only relevant for
    non-monetary contributions. In her view, commercial value was not a concept
    that applied to expenses generally.

[43]

The
    trial judge stated that she had concerns about the appellants credibility on the
    contested issues. She noted that there were a number of inconsistencies and
    improbabilities in his evidence.

[44]

The
    trial judge also drew an adverse inference against the appellants credibility
    from his failure to call three witnesses  his brother Doug Del Mastro, who was
    in charge of the campaigns database, Bruce Fitzpatrick (Fitzpatrick), who
    was running the appellants in-house GOTV operation, and McNutt, his campaign
    manager. She found that all three would have been in a position to provide
    evidence on important issues.

[45]

Although
    the trial judge said that she had some hesitation about Halls evidence, her
    hesitation was overcome by the ample corroboration of that evidence.

[46]

The
    trial judge found the appellant guilty on count one, of incurring election
    expenses that exceeded the campaign limit, and on count two, of wilfully
    exceeding his personal contribution limit. She found him guilty on count three,
    as a party to filing a false or misleading electoral campaign return, and on
    count four, of filing an electoral campaign return that did not set out the
    required information. The latter charge was stayed under the principle in
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.

(2)

Summary Conviction
    Appeal

[47]

The
    appellant appealed his convictions and sentence to the Superior Court of
    Justice and the Crown cross-appealed his sentence. The appeals were dismissed,
    with the exception of the restitution order, which was set aside.

[48]

The
    SCAJ rejected the appellants argument that the trial judge was required to
    determine the actual value of the proven telephone work, how much of the telephone
    work was actually done and how much money was actually earned by Holinshed
    during the election period.

[49]

The
    SCAJ held that commercial value is only relevant when it is necessary to
    determine the value of a non-monetary contribution. Since this case did not
    involve a non-monetary contribution, the commercial value of the services was
    not relevant. All that mattered was whether the appellant incurred a cost in
    relation to Holinsheds services during the election period. If so, that cost
    was an election expense under s. 407(3) of the
CEA
.

[50]

The
    SCAJ concluded that the trial judge properly drew an adverse inference from the
    appellants failure to call Fitzpatrick and Doug Del Mastro as witnesses.
    However, she erred in drawing an adverse inference from the failure to call
    McNutt, because he did not testify due to an agreement between the Crown and
    the defence. The SCAJ held, however, that it was appropriate to apply the
    curative proviso under s. 686(1)(b)(iii) of the
Criminal Code
because
    there was no substantial wrong or miscarriage of justice.

[51]

The
    SCAJ also rejected the appellants argument that he could not be convicted as a
    party to an offence under the
CEA
through the application of the
Code
.
    He concluded that by virtue of s. 34(2) of the
Interpretation Act
, all
    the provisions of the
Code
apply to offences created under another Act
    of Parliament, unless Parliament has clearly expressed an intention to the
    contrary. None of the provisions in the
CEA
manifested a clear intention
    of Parliament to preclude resort to the party liability provisions of the
Code
.
    Therefore, it was possible for the appellant to be convicted as a party to an
    offence under the
CEA
.

[52]

The
    SCAJ dismissed the appeal and cross-appeal from sentence, with the exception of
    the $10,000 restitution order. The offences were serious and struck at the
    heart of the democratic electoral process. The trial judges analysis was a
    well-reasoned balancing of the sentencing principles. The SCAJ set aside the restitution
    order, however, because there was no evidence the Peterborough Electoral
    District Association suffered damages.

E.

the issues

[53]

The
    appellant raises three issues:

First
: That the trial judge erred in her interpretation
    and application of the definitions of election expense under s. 407 of the
CEA
,
    and of commercial value under s. 2(1) of the
CEA
, causing her to
    ignore evidence relevant to whether the appellant exceed his campaign expense
    limit.

Second
: That the trial judge erred in determining, on
    counts three and four, that the appellant was liable as a party to the offence
    committed by his official agent, McCarthy, and that the SCAJ erred in finding
    that the third party liability provisions of the
Criminal Code
apply
    to prosecutions under the
CEA
by operation of s. 34(2) of the
Interpretation
    Act
.

Third
: That the trial judge erred in drawing an adverse
    inference from the appellants failure to call three witnesses, namely John
    McNutt, Bruce Fitzgerald and Doug Del Mastro.

F.

ANALYSIS

(1)

The statutory
    interpretation issue

[54]

The appellant submits that statutory interpretation is the core issue
    on the appeal. I agree.

[55]

On the appellants interpretation, the purpose test animating the
    definition of an election expense requires an analysis of the extent to which goods
    or services purchased as an election expense, either generally in s. 407(1)
    or in one of the enumerated categories in s. 407(3), are actually used or
    consumed for the purpose of the election campaign. It also requires, he says,
    an analysis of the commercial value of that property or service.

[56]

In other words, as I will explain shortly, the appellant says that it
    is not enough for the Crown to establish that the candidate spent $100 on
    particular goods or services that would qualify as an election expense. The
    Crown must also establish the extent to which the goods or services were
    actually used in the campaign and the commercial value of the amounts used.

[57]

The appellant relies in part upon the definition of non-monetary
    contribution, a term used in s. 407(1) and (3). That definition, contained in
    s. 2(1), is as follows:

non-monetary

contribution
means the commercial value of
    a service, other than volunteer labour, or of property or of the use of
    property or money to the extent that they are provided without charge or at
    less than their commercial value.

[58]

The
definition of commercial value, in s. 2(1),
    is:

commercial value
, in relation to
    property or a service, means the lowest amount charged at the time that it was
    provided for the same kind and quantity of property or service or for the same
    usage of property or money, by

(a) the person who provided it, if the person is
    in the business of providing that property or service; or

(b) another person who provides that property or
    service on a commercial basis in the area where it was provided, if the person
    who provided the property or service is not in that business.

[59]

The appellant submits that, assuming there was a contract with
    Holinshed to carry out telephone polling services for $21,000, it was necessary
    for the trial judge to determine (a) how much of the polling work was actually performed
    by Holinshed; (b) the extent to which that work directly promoted the
    appellants campaign; (c) the actual commercial value of the proven polling
    work, regardless of what the contract stated or what Holinshed was actually
    paid; and (d) that this value caused the campaign to exceed its limit. The
    courts below erred, he submits, in failing to consider the extent to which
    Halls services were actually
used
by the appellant to promote his campaign. They also erred in determining
    that the application of s. 407(3) made it unnecessary to consider the
    application of s. 407(1), in refusing to admit the evidence of the appellants
    staff concerning the extent to which Holinsheds work was actually used in the
    campaign and in failing to consider the commercial value of Halls services.

[60]

The starting point for the statutory interpretation analysis is
    Driedgers modern principle, first expressed in his 1974 edition and
    repeatedly applied by Canadian courts ever since: see
Re. Rizzo
    & Rizzo Shoes Ltd.
, [1998] 1 S.C.R. 27, at para. 21
.
    That principle holds that:

the words of an Act are to be read in their
    entire context, in their grammatical and ordinary sense harmoniously with the
    scheme of the Act, the object of the Act, and the intention of Parliament.

[61]

As Ruth Sullivan notes, statutory interpretation is a multi-dimensional
    exercise and requires a court to consider whether a particular interpretation
    complies with the legislative text, promotes the intention of the legislature,
    and produces a result that is reasonable and just, in compliance with accepted
    legal norms:
Ruth Sullivan,
Sullivan on the Construction of Statutes
,
    6th ed. (Markham: LexisNexis, 2014), at pp. 7-10.

[62]

As discussed earlier, the purpose of the electoral financing regime
    contained in the
CEA

is to ensure that elections
    are fair to both candidates and electors. The courts have affirmed that
    electoral finance rules and spending limits play a critical role in preserving
    the integrity of the electoral process.
In
Figueroa v. Canada
    (Attorney General)
, 2003 SCC 37, [2003] 1 S.C.R. 912, Iacobucci J.
    described electoral financing, at para. 72, as an integral component of the
    electoral process and said that it is of great importance that the integrity
    of the electoral financing regime be preserved. In
Conservative Fund
    Canada v. Canada (Elections)
, 2010 ONCA 882, 275 O.A.C. 175, leave to
    appeal refused, [2011] S.C.C.A. No. 65, at para. 93, Epstein J.A. concluded
    that spending limits are the primary instrument used by Parliament to promote
    the egalitarian model of elections.

[63]

In
Harper v. Canada (Attorney General)
, 2004 SCC 33,
    [2004] 1 S.C.R. 827,
Bastarache J. spoke of the regulation of
    electoral spending as creating a level playing field for elections. Referring
    to the courts decision in
Libman v. Quebec (Attorney General)
,
[1997] 3 S.C.R. 569, he observed, at para. 61, that spending
    limits are necessary to prevent the affluent from monopolizing election
    discourse. He continued, at para. 62:

The Court's conception of electoral fairness as reflected in
    the foregoing principles [from
Libman
] is consistent with the
    egalitarian model of elections adopted by Parliament as an essential component
    of our democratic society. This model is premised on the notion that
    individuals should have an equal opportunity to participate in the electoral
    process. Under this model, wealth is the main obstacle to equal participation;
    see C. Feasby, "
Libman v. Quebec (A.G.)
and the Administration of
    the Process of Democracy under the
Charter
: The Emerging Egalitarian
    Model" (1999), 44
McGill L.J.
5. Thus, the egalitarian model
    promotes an electoral process that requires the wealthy to be prevented from
    controlling the electoral process to the detriment of others with less economic
    power. The state can equalize participation in the electoral process in two
    ways; see O. M. Fiss,
The Irony of Free Speech
(1996), at p. 4. First,
    the State can provide a voice to those who might otherwise not be heard. The
    Act does so by reimbursing candidates and political parties and by providing
    broadcast time to political parties. Second, the State can restrict the voices
    which dominate the political discourse so that others may be heard as well. In
    Canada, electoral regulation has focussed on the latter by regulating electoral
    spending through comprehensive election finance provisions. These provisions
    seek to create a level playing field for those who wish to engage in the
    electoral discourse. This, in turn, enables voters to be better informed; no
    one voice is overwhelmed by another. In contrast, the libertarian model of
    elections favours an electoral process subject to as few restrictions as
    possible.

[64]

This
    legislative purpose informs the interpretation of ss. 407(1) and 407(3)(e). The
    legislative history of the latter provision also informs its interpretation. It
    was added to the
CEA
by amendment effective January 1, 2004:
An
    Act to Amend the Canada Elections Act and the Income Tax Act
, S.C. 2003,
    c. 19, s. 26. Before that time, Elections Canada had issued a guideline in 1988
    expressing the view that the cost of electoral survey information was not an
    electoral expense because it did not result in the promotion of the party, its
    leader or candidates. The logic of this statement was criticized by the Royal
    Commission on Electoral Reform and Party Financing (the Lortie Commission): Royal
    Commission on Electoral Reform and Party Financing,
Reforming Electoral
    Democracy (Final Report)
(Ottawa: Minister of Supply and Services Canada,
    1991), at p. 155. Thus, the addition of s. 407(3)(e) to the
CEA
was a
    response to the previous interpretation of s. 407(1) that had excluded election
    surveys from the definition of election expense.

[65]

As
    the Lortie Commission observed, at p. 152 of its report, because the concept of
    election expense is such a key component of the spending limits framework,
    its definition must be clear and unambiguous so that candidates and those who
    work on election campaigns, including official agents, know exactly where they
    stand.

[66]

In
    my view, s. 407(1) and s. 407(3)(e) are clear and unambiguous. For convenience,
    I set them out again:

407(1) An election expense includes any cost incurred, or
    non-monetary contribution received, by a registered party or a candidate, to
    the extent that the property or service for which the cost was incurred, or the
    non-monetary contribution received, is used to directly promote or oppose a
    registered party, its leader or a candidate during an election period.

(3)
An election expense referred to in subsection
    (1) includes a cost incurred for, or a non-monetary contribution in relation
    to,

(e)
the conduct of election surveys or other
    surveys or research during an election period.

[67]

Section
    407(1) requires an examination of the extent that the property or service for
    which the cost was incurred  is used to directly promote  a candidate during
    an election period. As the Federal Court observed in
Callaghan
, at
    para. 120, this requires: (i) that the cost be incurred by the candidate, (ii) that
    the property or services be used during the election period and (iii) that the
    property or services be used for the purpose of promoting the candidate. It
    does not matter when the cost was incurred, whether it was paid or not, or when
    it was paid.

[68]

I
    agree with the respondent that the various sub-categories in s. 407(3) can
    properly be regarded as deemed election expenses, because they directly
    promote the candidate during the election period. Under sub-paragraph
    407(3)(e), as with its neighbours (sub-paras. (a) advertising materials, (b)
    remuneration of an official agent, (c) the cost of meeting space and light
    refreshments at meetings), the cost of election surveys or research during an
    election period is deemed to directly promote the candidate during an election
    period. No analysis is required of whether it does so in fact.

[69]

The
    appellants interpretation would add two other requirements to s. 407(1) and
    407(3). First, it would require an examination of the extent to which the
    product or service was actually used or consumed by the candidate. Second, it would
    also require an examination of the commercial value of the product or service,
    apart from its cost. Thus, on this interpretation, a candidate need not report
    the money spent to purchase goods or services. He or she need only report the
    commercial value of that portion of the goods or services that he or she
    actually uses or consumes. The appellant says that the Crown failed to prove
    these amounts in relation to Holinsheds services and that the trial judge
    erred in refusing to permit him to adduce evidence to prove that he did his own
    polling and GOTV work and that he did not really consume much of what Holinshed
    was contracted to provide.

[70]

The
    appellants interpretation can best be understood and evaluated by the examples
    used in his submissions and put to him in argument.

[71]

He
    gave the example of a candidate purchasing election lawn signs for $100. This
    would fall within s. 407(3)(a): production of advertising material. During
    argument, the court suggested the example of a candidate purchasing 100
    cupcakes for a campaign reception, an expense under s. 407(3)(c): supply of light
    refreshments at meetings.

[72]

On
    the appellants interpretation of s. 407(1) and (3), the candidate need only
    account for the value of the lawn signs actually used and the number of
    cupcakes actually consumed at the meeting. Thus, if only half the lawn signs
    were planted in lawns and the rest languished in a workers garage, or only 50
    cupcakes were eaten because attendance at the meeting was less than expected,
    the candidate need only account for half the cost. And, the appellant says, the
    candidate need only account for the commercial value of what was consumed. So
    if he or she paid more than market value for the signs or the cupcakes, he or
    she only need account for the market value of what was used.

[73]

In
    my view, there is nothing in the statutory language that supports this
    interpretation. Nor does it comport with the intention of Parliament. It would
    result in an election expense regime that would be uncertain, unworkable and
    impractical. Candidates and their agents would never know, at any point in
    time, where they stood on their election expense limits because they would have
    no way of knowing what had been or would be consumed and whether its
    commercial value was more, or less, than the amount actually paid. The
    reporting of election finances would become a nightmare if these sort of
    calculations were required. The auditing and investigation of expenses for hundreds
    of candidates across the country would be impractical, time consuming and
    expensive. Instead of being simple and transparent, the reporting, auditing and
    disclosure of election expenses would be confusing and opaque.

[74]

The
    appellant introduces a concept that is not contained in the legislation  a
    requirement to determine the value of the product or service actually used or
    consumed. Sections 407(1) and (3) speak of an expense or a cost incurred.
    In keeping with the object of the legislation, these are simple,
    easily-understood terms that can readily and easily be applied. An invoice can
    be produced to establish an expense.

[75]

The
    appellants argument that the Crown must establish the commercial value of the
    property or service is also flawed.

[76]

The
    term commercial value applies to non-monetary contributions received by a
    candidate and used to promote the candidate during an election period. This is
    evident from the definitions of commercial value and non-monetary
    contribution in s. 2(1) of the
CEA
, which I restate here for
    reference:

commercial value
, in relation to property or a
    service, means the lowest amount charged at the time that it was provided for
    the same kind and quantity of property or service or for the same usage of
    property or money, by

(a) the person who provided it, if the person is in the
    business of providing that property or service; or

(b) another person who provides that property or service on a
    commercial basis in the area where it was provided, if the person who provided
    the property or service is not in that business.

non-monetary contribution
means the commercial value
    of a service, other than volunteer labour, or of property or of the use of
    property or money to the extent that they are provided without charge or at less
    than their commercial value.

[77]

Section
    407(1) draws within the meaning of election expense any non-monetary
    contribution received, to the extent that that contribution is used to
    directly promote the candidate during the election period. This requires a
    determination of the commercial value
of the
    non-monetary contribution
. There is no statutory requirement to
    determine the commercial value of the cost incurred as an election expense.

[78]

It
    is noteworthy that, according to the evidence accepted by the trial judge, the
    appellant and his campaign team realized early in the campaign that they would
    exceed his campaign limit if they incurred the Holinshed expense. This was not
    based on an assessment of the commercial value of the services or on an estimate
    of how much of the services would be consumed. It was based on the invoice that
    Holinshed had given them. The appellants campaign knew almost immediately that
    paying the bill would put the appellant off-side on his expenses. This was why
    the appellant paid the bill personally and then worked with Hall to procure a
    false invoice.

[79]

For
    these reasons, I would reject the appellants ground of appeal based on the
    interpretation of the
CEA
. The Act is clear and unambiguous that the
    various sub-categories under s. 407(3) are deemed election expenses, in the
    sense that these types of expenses are deemed to directly promote the candidate
    during an election period. The measure of this expense is the cost incurred by
    the candidate, not the value of goods or services consumed. The concept of
    commercial value only applies in the context of non-monetary contributions
    and has no application to goods or services purchased by a candidate.

(2)

The party liability
    issue

[80]

This
    ground of appeal relates to counts three and four.

[81]

Counts
    three and four asserted that the appellant, a candidate, and McCarthy, his
    official agent, filed a campaign return that omitted to report a contribution
    from the appellant and omitted to report an election expense of $21,000,
    instead reporting an election expense of $1,575. In so doing, the counts
    alleged, they provided an election return to the CEO that they knew or ought
    reasonably to have known contained a material statement that was false or
    misleading and failed to set out the information required, contrary to ss.
    463(1)(a) and (b), thereby committing offences contrary to ss. 497(3)(v) and
    500(5) of the
CEA
.
[5]

[82]

The
    trial judge found McCarthy guilty of the offences and found the appellant
    liable as a party. The appellant submits, as he did in the court below, that s.
    497(3)(v) applies only to agents and that he cannot be liable as a party to an
    offence committed by McCarthy.

[83]

The
    SCAJ held that the party liability provisions of the
Criminal Code
apply to the
CEA
by virtue of s. 34(2) of the
Interpretation Act
,
    which provides:

34(2) All the provisions of the Criminal Code relating to
    indictable offences apply to indictable offences created by an enactment, and
    all the provisions of that Code relating to summary conviction offences apply
    to all other offences created by an enactment,
except to the extent that the
    enactment otherwise provides
. [Emphasis added.]

[84]

The
CEA
does not expressly otherwise provide. The appellant submits,
    however, that the
CEA
contains a complete code with respect to
    election offences, which impliedly excludes grounds of liability not expressly
    stated. He submits that the offence provisions of the
CEA
are
    exhaustive in defining the persons who may be liable for certain offences as principals
    and the circumstances in which persons other than a principal may be criminally
    liable. He relies on the principle of interpretation
expressio unius est
    exclusio alterius
(to express one thing is to exclude another): see
Sullivan
,
    at p. 248.

[85]

The
    appellant points out that there are specific provisions in the
CEA
dealing with offences committed by numerous individuals and entities, including
    not only candidates and their official agents, but also election officers, returning
    officers, poll clerks, broadcasters, financial agents, and electors, to
    name a few. On the other hand, the statute also creates offences that may be
    committed by any party, preceded by the words, Every person  who . For
    example, ss. 480 and 481 begin with the words Every person is guilty of an
    offence who.

[86]

The
    appellant notes as well that some provisions of the
CEA
expressly
    extend liability to persons other than a principal, for example:

·

s. 320 (a candidate or a
person acting on
    their behalf
);

·

s. 322 (a landlord or
person acting on
    their behalf
);

·

s. 330 (no person shall use,
aid, abet,
    counsel or procure
the use of a broadcast station outside Canada during an
    election with intent to influence voting);

·

s. 351 (a
third party
may not circumvent
    an election expense limit);

·

s. 423(2) (no registered party and
no
    third party
shall collude with each other for the purpose of circumventing
    the maximum amount of permitted election expenses of a registered party);

·

s. 443(2) (prohibits
collusion
between
    a candidate, official agent, person authorized
or third party
for the
    purpose of circumventing the
election expense limits); and

·

s. 478.15(2) (prohibits
collusion
by
    any person to circumvent or attempt to circumvent the expense limit for an
    electoral district referred to in para. 478.14).

[87]

The
    appellant says that had Parliament intended the party liability provisions of
    the
Code
to apply to the
CEA
, it would have been unnecessary
    to spell out with such great particularity the parties who are liable for
    specific forms of misconduct and the circumstances in which criminal liability could
    rest with someone other than the named principal.

[88]

The
    SCAJ found that the law is well settled that s. 34(2) of the
Interpretation
    Act
applies to offences created under another statute unless Parliament
    has clearly expressed a contrary intention: see
Ukrainetz v. Canada
    (Attorney General)
(1995), 128 Sask. R. 308 (C.A.). The fact that the
    statute is silent, or contains some provisions touching on the same matter as
    the
Code
, is not sufficient to manifest a contrary intention: see
R.
    v. Ross
(1991), 68 C.C.C. (3d) 380 (B.C.C.A.), at pp. 382-383;
R v. Multiform
    Manufacturing Co.
, [1990] 2 S.C.R. 624, at pp. 629-630.

[89]

The
    SCAJ expressed his conclusions on this issue, at paras. 150-152:

While the appellant references a few sections of the CEA and
    then submits that the CEA "has its own provisions in which it very
    carefully states which offences are to include party liability", this
    submission finds no support in the text of the CEA.

Simply put, none of the provisions of the CEA that the
    appellant referenced manifest a clear intention of Parliament to preclude
    resort to s. 21 of the Criminal Code in relation to the myriad of offences
    created under the CEA. The CEA is not a complete code. The CEA does not expressly
    oust the provisions of the Criminal Code. This ground of appeal fails.

The trial judge did not err in convicting Del Mastro as a party
    to the offence relating to the filing of the false and misleading campaign return.

[90]

The
    Supreme Court considered s. 34(2) (then s. 27(2)) of the
Interpretation Act
in
R. v. Multiform Manufacturing Co
. The issue in that case was
    whether a provision in the
Bankruptcy Act
, R.S.C. 1970, c. B-3,
    authorizing searches ousted the provisions of the
Criminal Code
for
    obtaining a search and seizure warrant.  The Supreme Court noted, at p. 630,
    that in cases where the statute was silent as to search and seizure powers, it
    could not be said that s. 27(2) did not apply where there was not in the statute
    an 'enactment [that] otherwise provides'.

[91]

Cases
    where the courts have held that a statute otherwise provides generally involve
    more than mere silence or duplication typically, a provision that is clearly
    contrary to the
Code
provisions.

[92]

For
    example, in
Kourtessis v. Minister of National Revenue
, [1993] 2
    S.C.R. 53, La Forest J. held that a provision in the
Income Tax Act
otherwise provided and ousted the
Code
provision.
[6]
The provision at issue involved search warrants. Under the
Income Tax Act
,
    the power to issue a search warrant was vested in a Superior Court or Federal Court
    judge. Under the
Code
, a justice of the peace had the power to issue
    search warrants. Thus, the
Income Tax Act
provision was held to be a
    special provision providing otherwise as contemplated by s. 34(2) of the
Interpretation
    Act
.

[93]

In
Ukrainetz v. Canada
, the Saskatchewan Court of Appeal held that to
    preclude the use of the
Code
requires a clear expression of
    Parliaments intention to do so. The court concluded there was no such clear
    intention. The
Tax Rebate Discounting Act
provided for fines, but did
    not specifically provide that imprisonment could be imposed on default. The
Code
had such a provision and the court concluded it applied because of s. 34(2) of
    the
Interpretation Act
. Thus, the mere absence of a reference was not
    enough to otherwise provide. It had to be clearly expressed.

[94]

The
    same issue of imposing imprisonment on default to pay a fine was addressed by
    the British Columbia Court of Appeal in
R. v. Ross
. Like the Supreme
    Court and the Saskatchewan Court of Appeal, the court concluded that Parliaments
    silence does not otherwise provide.

[95]

The
    court in
Ross
also considered the argument that the fine provisions in
    the
Unemployment Insurance Act
were a complete code and excluded all
    other penalties by virtue of the maxim
expressio unius est exclusio
    alterius
. The court held, at p. 383, that the
expressio unius
maxim was necessarily displaced by the operation of the
Interpretation Act
.

[96]

In
R. v. Raghubeer
, 2006 ONCJ 165, a judge of the Ontario Court of
    Justice considered s. 34(2) of the
Interpretation Act
in the context of
    charges under the
CEA
. The trial judge found that the accused was not
    personally liable, but went on to consider party liability, relying on s. 34(2)
    of the
Interpretation Act
. The accused argued that because the
CEA
provided a definition of group, Parliament intended to oust normal rules of
    party liability. Instead, one could only be liable if one fell within the
    definition of group under the
CEA
.

[97]

The
    trial judge rejected this argument. He held that the definition of group was
    intended to expand the types of entities that could be charged under the
CEA
to include unincorporated associations. This section did not manifest an
    intention to oust the normal penal theory of party liability. It did not
    provide otherwise as required by s. 34(2) of the
Interpretation Act
.

[98]

Consistent
    with these authorities, I am of the view that in order to exclude the
    application of the
Criminal Code
by virtue of s. 34(2) of the
Interpretation
    Act
, there must either be an statement to that effect in the statute or it
    must be excluded by necessary implication as a result of a direct conflict
    between the statutory provision and the
Code
.

[99]

None
    of the provisions of the
CEA
relied upon by the appellant meet the
    threshold of otherwise providing, either expressly or by necessary
    implication.

[100]

Furthermore, the
    appellants reliance on the
expressio unius
principle is misplaced, in
    my view. By virtue of the
Interpretation Act
, all provisions of the
Code
apply, unless the
Act
provides otherwise. The inference from not
    including those provisions is not that Parliament must have intended to exclude
    them, but, by virtue of the
Interpretation Act
, that they apply
    because Parliament would have said otherwise if it did not want them to apply.

[101]

I would
    therefore dismiss the appeal with respect to count three.

(3)

The adverse inference
    issue

[102]

I turn to the
    third issue. As I have noted, the SCAJ found that although the trial judge
    erred in drawing an adverse inference from the appellants failure to call
    McNutt, it was an appropriate case in which to apply the curative proviso.

[103]

The appeal comes
    to this court pursuant to leave to appeal granted under s. 839(1) of the
Code
.
    As Doherty J.A. noted in
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641,
    at para. 24, it is an appeal from the decision of the SCAJ and not a second
    appeal from the trial decision. It is also an appeal limited to questions of
    law alone. In
R.(R.)
, at para. 37, Doherty J.A. summarized the
    principles applicable to leave to appeal under s. 839:

In summary, leave to appeal pursuant to s. 839 should be
    granted sparingly. There is no single litmus test that can identify all cases
    in which leave should be granted. There are, however, two key variables - the
    significance of the legal issues raised to the general administration of
    criminal justice, and the merits of the proposed grounds of appeal. On the one
    hand, if the issues have significance to the administration of justice beyond
    the particular case, then leave to appeal may be granted even if the merits are
    not particularly strong, though the grounds must at least be arguable. On the other
    hand, where the merits appear very strong, leave to appeal may be granted even
    if the issues have no general importance, especially if the convictions in
    issue are serious and the applicant is facing a significant deprivation of his
    or her liberty.

[104]

In this case,
    the appellant sought leave to appeal his convictions on the basis that the
    trial judges errors in the interpretation of the
CEA
raised arguable
    questions of law that had significance to the administration of justice beyond
    the four corners of the case. He did not seek leave to appeal the SCAJs dismissal
    of the adverse inference ground of appeal.

[105]

In granting
    leave to appeal to this court, Gillese J.A. noted that the proposed grounds raised
    by the appellant met the
R.(R.)
test because they related to the
    interpretation of the
CEA
and the application of the
Code
, that
    there was little case law on the subject and that the issues were of importance
    beyond the immediate parties. She also granted the appellant leave to appeal his
    sentence, noting that the sentence appeal raised the issue of whether a
    custodial sentence was demonstrably unfit or otherwise unreasonable for such offences.
    Leave was not granted with respect to the adverse inference issue because it
    was not requested.

[106]

As leave to appeal
    was neither sought nor granted, I would not consider this ground of appeal. I
    would add that in any event, notwithstanding the acknowledged error in relation
    to McNutt, I would not interfere with the SCAJs conclusion that this would be
    an appropriate case for the application of the curative proviso of the
Code
.

G.

DISPOSITION

[107]

For the
    foregoing reasons, I would dismiss the appeal.

Released: GRS  SEP 13 2017

George R. Strathy C.J.O.

I agree. M. L. Benotto J.A.

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

[1]
This was the version in force between July 12, 2008 and December 15, 2011,
    which encompasses the 2008 electoral campaign
.

[2]

Portions of this background summary are taken from an annex to
    the parties Statement of Agreed Facts. See generally Donald J. Bourgeois, with
    Susan B. Campbell,
Election Law in Canada
, (Markham: LexisNexis Canada
    Inc., 2015), at pp. 1-12, 87-107.

[3]
Section 451(1) requires that the official agent of a candidate
    provide to the CEO certain documents in respect of the election including
    (451(1)(a) an electoral campaign return, in the prescribed form, on the
    financing and expenses for the candidates electoral campaign, (b) an auditors
    report, (c) a declaration by the official agent concerning the return, (d) a
    declaration by the candidate concerning the return. Section 451(2) sets out the
    contents of the return, which includes a statement of the election expenses, a
    statement of electoral campaign expenses other than election expenses, a
    statement of contributions received and the number of contributors, and a
    statement of the commercial value of goods or services provided.

[4]
Sections 463(1)(a) and (b)
    provide that: (1) No candidate and no official agent of a candidate shall
    provide the Chief Electoral Officer with a document referred to in subsection
    451(1) or 455(1) that (a) the candidate or the official agent, as the case may
    be, knows or ought reasonably to know contains a material statement that is
    false or misleading; or (b) does not substantially set out the information
    required by subsection 451(2) or required to be updated under subsection
    455(1). Section 497(3)(v) provides that: (3) Every person is guilty of an
    offence who  (v) being an official agent, contravenes paragraph 463(1)(a) or
    knowing contravenes paragraph 463(1)(b) (providing electoral campaign return
    containing false or misleading statement or one that is incomplete). Section
    500(5) set out the punishment for these offences.

[5]

See footnote 4 for the text of the relevant provisions.

[6]

The Supreme Court was divided on the outcome of the appeal,
    but not on this issue.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: R. c. Doirin, 2017 ONCA 755

DATE: 20170927

DOSSIER: C60488

Les juges Sharpe, Rouleau et
    Benotto

ENTRE

Sa Majesté la Reine

Intimée

et

Didier Doirin

Appelant

Sarah Desabrais et Sarah Paré-Wild,
    pour lappelant

Philippe Cowle, pour lintimée

Date de laudience : le
    22 septembre 2017

Décision rendue séance tenante

En appel de la condamnation prononcée le
    10 juin 2014 par le juge Larry  B. OBrien de la Cour de justice de lOntario,
    siégeant sans jury.

MOTIFS DE LA COUR

[1]

Lappelant maintient quil na pas bénéficié de
    lassistance effective de son avocat en première instance. Selon lui, une
    erreur judiciaire a résulté de cette assistance ineffective. Plus spécifiquement,
    neût été de lassistance ineffective de son avocat, lappelant aurait témoigné
    en sa défense lors du procès.

[2]

Lappelant tente de faire admettre son témoignage
    et le témoignage de sa conjointe comme nouvelle preuve en appui de cet argument.
    Il prétend quà la lecture de cette nouvelle preuve, nous devons conclure quil
    existe une probabilité raisonnable quil aurait été acquitté sil avait témoigné.
    Selon lappelant, ce témoignage est de nature à soulever un doute raisonnable
    et aurait pu raisonnablement influencer le résultat du procès.

[3]

À notre avis, lappel doit être rejeté. Après étude
    de la nouvelle preuve déposée par lappelant ainsi que celle déposée par le ministère
    public, nous avons conclu que lappelant na pas subi de préjudice. Ainsi, il
    nest pas nécessaire dexaminer le travail de lavocat pour décider de sa prétendue
    assistance ineffective.

[4]

Nous ne pouvons admettre la nouvelle preuve de
    lappelant en raison de son manque de crédibilité et de son caractère invraisemblable.
    Les contre-interrogatoires de lappelant et de sa conjointe ont démontré que
    leurs affidavits déposés à lappui de lappel contenaient des faussetés sur un
    point central, cest-à-dire le contact entre lappelant et son avocat au cours
    des préparatifs pour le procès.

[5]

De plus, le récit de lappelant au sujet de ce
    qui se serait passé le soir de lenlèvement dont il était accusé manque de
    logique. Lappelant a, dans une certaine mesure, changé son récit au cours de
    son contre-interrogatoire.

[6]

Nous rejetons aussi la suggestion que lavocat
    de lappelant aurait menti dans son affidavit déposé en réponse à lappel ou au
    cours de son contre- interrogatoire. Vu dans son ensemble, le témoignage de
    lavocat parait comme un effort sincère de relater, dans la mesure du possible,
    les évènements selon ses notes et sa mémoire des évènements. Le fait quil ait
    hésité, exprimé certains doutes et quil nait pas retenu toutes ses notes ne
    réduisent aucunement sa crédibilité. Ce témoignage contredit le témoignage de
    lappelant sur des points critiques.

[7]

En conclusion, nous sommes davis que lappelant
    na pas établi la véracité de la preuve dont dépend sa plainte dassistance
    ineffective.

[8]

Nous refusons donc dadmettre la nouvelle preuve
    et rejetons lappel.

« Robert J. Sharpe
    j.c.a. »

« Paul
    Rouleau j.c.a. »

« M.L Benotto
    j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ebagua, 2017 ONCA 706

DATE: 20170911

DOCKET: 59830

MacPherson, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Junior Ebagua

Appellant

Anthony Moustacalis, for the appellant

N. Devlin, for the respondent

Heard: September 8, 2017

On appeal from the conviction entered on December 11,
    2014 by Justice Leslie Baldwin of the Ontario Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

We have reviewed the record and agree with the appellants submission
    that the ineffective assistance of counsel in this case shows that the validity
    of the verdict is undermined and the procedures at trial were unfair resulting
    in a miscarriage of justice. The Crown concedes that the appeal should be
    allowed on this basis.

[2]

As a result the appeal is allowed, the conviction set aside and a new
    trial ordered.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ellacott, 2017 ONCA 681

DATE: 20170905

DOCKET: C58726

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Ellacott

Appellant

Erin Dann, for the appellant

Gavin MacDonald, for the respondent

Heard: April 26, 2017

On appeal from the sentence imposed on March 21, 2013 by
    Justice John A. Desotti of the Superior Court of Justice, with reasons reported
    at 2013 ONSC 798.

Huscroft J.A.:

OVERVIEW

[1]

The appellant, Christopher Ellacott,
[1]
committed a gruesome crime. He sexually assaulted and murdered Velma Thomson, a
    70-year-old woman. He was 15 years old at the time.

[2]

The victim

was small and frail: she weighed approximately 100
    pounds and had suffered a stroke. The appellant was a neighbour, and would
    occasionally help her with chores around her house.

She was found in her
    home, partly nude and lying in a pool of blood. She had defensive wounds and
    had been stabbed in the heart several times. Her jugular vein was cut. The
    evidence suggested that she had been raped and sodomised.

[3]

The appellant committed the crime in 1983 and avoided detection for almost
    three decades. A thumbprint left at the crime scene
was eventually linked to the appellant; he was placed under surveillance
    and samples of his DNA were obtained surreptitiously. The samples matched the
    DNA in the exudate on the victims pubic hairs and semen found on one of her
    slippers. The appellant was charged with the crime.

[4]

By the time he was convicted of first degree murder
[2]
in 2012, the appellant was a middle-aged man. He had lived an apparently
    ordinary life: he had a job, two children, and had not been convicted of any
    further crimes.

[5]

The Crown brought an application to have the appellant sentenced as an
    adult rather than as a youthful offender. The sentencing judge concluded that the
    appellant should be sentenced as an adult and sentenced him to a mandatory term
    of life imprisonment with a seven-year parole ineligibility period and lifetime
    supervision.

[6]

The appellant appeals sentence only, having abandoned his conviction
    appeal. He submits that the sentencing judge erred in sentencing him as an
    adult rather than as a youthful offender. Specifically, he submits that the
    sentencing judge erred in:

1.     failing
    to consider whether the presumption of diminished moral blameworthiness had
    been rebutted;

2.     using
    the appellants testimony and denial of guilt as aggravating factors; and

3.     failing
    to properly weigh the principles of rehabilitation and integration into
    society.

[7]

At stake in this appeal is the difference between the life sentence the
    appellant received as an adult and the sentence he would receive if he were
    sentenced as a youthful offender. The appellant would receive a minimum of seven
    years imprisonment if sentenced as an adult, as opposed to a maximum of six years
    if sentenced as a youthful offender. In addition, an adult sentence comes with
    a lifetime supervision order, while a youth sentence limits the supervisory
    period to four years: see
Criminal Code
, s. 745.1(a);
Youth Criminal
    Justice Act
(
YCJA
)
, s. 42(2)(q).

[8]

In my view, the appellant was properly sentenced as an adult. Although
    the sentencing judge erred in using the appellants testimony and denial of
    guilt as aggravating factors, the error is of no consequence and the sentence
    is nonetheless fit. The enormity of the appellants crime renders a youth
    sentence manifestly inadequate to hold the appellant accountable.

[9]

I would dismiss the appeal for the reasons that follow.

THE LAW

(1)

The Youth Criminal Justice Act

[10]

The legislation governing the sentencing of youthful offenders has
    changed considerably since the appellant committed the offences in 1983. It is
    not contested that the appellant was entitled to the benefit of a lesser
    sentence under the legislation in force at the time of sentencing.

[11]

The governing provision is s. 72(1) of the
YCJA
, which provides
    as follows:

72

(1)
The youth justice court shall order
    that an adult sentence be imposed if it is satisfied that

(a)
the
    presumption of diminished moral blameworthiness or culpability of the young
    person is rebutted; and

(b)
a
    youth sentence imposed in accordance with the purpose and principles set out in
    subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient
    length to hold the young person accountable for his or her offending behaviour.

[12]

Amendments to the
YCJA
came into force prior to the appellants
    sentencing, but the parties agreed that these amendments simply codified the
    principles set out by the Supreme Court in
R. v. D.B.
,
2008 SCC 25, [2008] 2 S.C.R. 3, and that the sentencing
    judge applied these principles.

[13]

D.B.
makes clear that the burden is on the Crown to rebut the
    presumption of diminished moral blameworthiness to which the young person is
    constitutionally entitled, and to establish that a youth sentence would not be
    of sufficient length to hold the young person accountable.

(2)

The standard of review

[14]

The starting point in this appeal is that the sentencing judges decision
    is entitled to significant deference. In a series of cases, the Supreme Court
    has emphasized that sentencing judges are to be given a wide latitude in
    crafting the appropriate sentence. This court is entitled to interfere with a
    sentence only if the judge made an error of law or an error in principle that
    had an impact on the sentence, or if the sentence is demonstrably unfit:
R.
    v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089 at
    paras. 11, 44.
An error of principle includes a failure to consider a
    relevant factor as well as the erroneous consideration of an aggravating or
    mitigating factor:
R. v. Grant
, 2016 ONCA 639, 351 O.A.C. 345, at
    para. 162.

DISCUSSION

(1)

Did the sentencing judge fail to consider whether the presumption of
    diminished moral blameworthiness had been rebutted?

[15]

In order to succeed on its application to have the appellant sentenced
    as an adult, the Crown had to satisfy a two-prong test: it had to establish not
    only that the presumption of diminished moral blameworthiness had been
    rebutted, but also that a youth sentence would not be sufficient to hold the
    appellant accountable for his behaviour. The Supreme Court explained the onus on
    the Crown in
D.B.

at paras. 93-94:

This does not make young persons
    less accountable for serious offences; it makes them differently accountable. Nor
    does it mean that a court cannot impose an adult sentence on a young
    person. It means that before a court can do so, the Crown, not the young
    person, should have the burden of showing that the presumption of diminished
    moral culpability has been rebutted and that the young person is no longer
    entitled to its protection.

Promoting the protection of the public
    is equally well served by putting this onus on the Crown, where it
    belongs. The Crown may still persuade a youth court judge that an adult
    sentence or the lifting of a publication ban is warranted where a serious crime
    has been committed. And young persons will continue to be accountable in
    accordance with their personal circumstances and the seriousness of the
    offence. But the burden of demonstrating that more serious consequences
    are warranted will be, as it properly is for adults, on the Crown.

[16]

The appellant submits that the sentencing judge failed to consider
    whether the presumption of diminished moral blameworthiness was rebutted, and
    instead jumped directly to the question of whether a youth sentence would
    adequately reflect the need for accountability.

[17]

I would reject this submission.

[18]

Sentencing judges are required to consider the seriousness and
    circumstances of the offence; the age, maturity, character (including
    sophistication, intelligence and capacity for moral reasoning), background, and
    previous record of the young person; and any other factors the court considers
    relevant. These criteria are relevant to both prongs of the test. As this court
    explained in
R. v. W.(M.)
, 2017 ONCA 22, 134 O.R. (3d) 1

at para. 106
, many of
the factors governing the presumption and the
    considerations for whether a youth sentence would be sufficient to hold the
    young person accountable
overlap. Nevertheless, the court stated that
    the preferred approach is for the two prongs of the test to be analyzed
    separately, lest a factor relevant to only one of the prongs be relied upon to
    support a finding in relation to the other. This court further clarified that the
    presumption is not rebutted simply by the seriousness of an offence. But the
    seriousness of an offence, along with the circumstances of an offender, is a
    relevant consideration in considering whether the presumption has been
    rebutted. The level of moral judgment or sophistication demonstrated in the
    planning and implementation of the offence are also relevant considerations,
    along with the young persons role in carrying out the offence:
W.(M.)
at para. 112.

[19]

The sentencing judge considered all of these factors. He recognized the
    onus on the Crown to rebut the presumption of diminished moral blameworthiness.
    He stated so clearly in para. 18 of his decision. However, because the
    sentencing judges decision pre‑dated
W.(M.),
he was not required
    to analyze the two prongs of the test separately and did not do so. Although the
    sentencing judge did not state specifically that the presumption had been
    rebutted, i
t is implicit on reading his reasons
    as a whole that he concluded that the presumption was rebutted.

[20]

The circumstances of this case were more than sufficient to rebut the
    presumption of diminished moral blameworthiness. Nothing in the evidence
    suggests a heightened vulnerability, immaturity, or reduced capacity for moral
    judgment  the considerations that give rise to the presumption, as the Supreme
    Court explained in
D.B.
(para. 41). The appellants conduct was no mere
    mistake or lapse in judgment. He committed an act of extreme violence against
    an elderly, vulnerable neighbour who until then had no known reason to fear
    him.  His purposeful actions were undertaken by him alone. The high degree of moral
    blameworthiness attaching to these actions is self-evident.

[21]

I conclude that the sentencing judge did not fail to consider whether
    the presumption of diminished moral blameworthiness was rebutted.

(2)

Did the sentencing judge err in using the appellants testimony and
    denial of guilt as aggravating factors?

[22]

It is well established that a plea of guilty counts as a mitigating
    factor on sentencing, but neither a decision to plead not guilty nor the manner
    in which an accused person presents his or her defence is to be treated as an
    aggravating factor: see
R v. Kozy
(1990), 58 C.C.C. (3d) 500 (Ont.
    C.A.) at 506, and
R. v. Bradley
, 2008 ONCA 179, 234 O.A.C. 363 at
    para. 16. As the court explained in
Kozy
at 506, any perceived
    impingement upon the manner in which a defence is to be conducted, such as a
    fear that a particular tactic might induce a heavier penalty, would impair the
    right to full answer and defence.

[23]

The appellant submits that the sentencing judge used his disbelief of
    the appellants testimony at trial as an aggravating factor on sentencing,
    holding that a lifetime supervision order was necessary to protect the public
    because he considered the appellants explanation for his thumbprint to be a contrived
    attempt to avoid guilt.

[24]

The Crown responds that the sentencing judge properly considered that
    the appellants attitude toward the offence and lack of remorse validly
    informed the sentence imposed, demonstrating that he had not accepted
    responsibility for his actions (as in
R. v. J.F.
, 2011 ONCA 220, 105
    O.R. (3d) 161, at paras. 85-86) and that he had a cavalier attitude toward his
    crime and its consequences (as in
R. v. Giroux
(2006), 207 C.C.C. (3d) 512 (Ont. C.A.),

at para. 68).

[25]

I accept that an accuseds attitude towards his or her crime and its
    consequences may be an aggravating factor that is properly considered in
    fashioning an appropriate sentence. In addition to the cases cited by the
    Crown, see
R. v. Valentini

(1999), 43 O.R. (3d) 178 (C.A.) at 205 (accuseds
    attitude toward the crime
may be relevant if it demonstrates a
    substantial likelihood of future dangerousness). That said, the exercise of the
    right to make full answer and defence cannot be used as an aggravating
    circumstance in sentencing as the sentencing judge did here.

[26]

Although the sentencing judge properly recognized at para. 49 of his
    reasons that [r]emorse can be considered as a mitigating factor but not an
    aggravating one, in my view his deprecation of the appellants defence crossed
    the line.

[27]

The appellant testified in his own defence and provided a possible
    explanation for the presence of his thumbprint at the crime scene. He testified
    that on a day just prior to the victims murder, he helped her carry a
    cardboard box into her home. He said simply that the DNA found at the scene was
    not his.

[28]

The sentencing judge emphasized that there was a 1 in 15 quadrillion
    chance that the DNA found in the semen and exudate at the murder scene did not
    belong to the appellant, and described the appellants explanation for his
    thumbprint as a lame and cobbled contrivance: paras. 52, 58. He described the
    appellants claim to have told his father the story an attempt to corroborate
    a purely fictional event; nonsense; and a purposeful attempt at deception,
    and stated:

[I]n concocting this fictional event to somehow cover off a
    virtual lock on the identity of the murderer, reveals something quite sinister
    about the accused, C.E. He is prepared to manufacture a lie in the hope that
    this deception might avoid a finding of guilt.

[N]ot only is the accused, C.E. aware that he is the perpetuator
    but he will do and say anything to avoid the conclusion that he committed this
    atrocious and violent act.

The attempt by the accused, C.E. by contrivance and concoction
    to weave his way around the significant, meaningful, and scientific, direct and
    circumstantial evidence of his guilt is another factor that persuades me that
    only a life time monitor of the accused affords society a measure of assurance
    that this conduct will never be repeated.

Reasons for sentence at
    paras. 65-68, 72, 85.

[29]

These remarks suggest that the sentencing judge was affronted by the nature
    of the appellants defence, given the strength of the case against
him.

[30]

The case against the appellant was indeed overwhelming, but that did not
    disentitle the appellant to exercise his right to make full answer and defence.
    He was entitled to deny that he committed the offence and to defend himself as
    he considered appropriate. As this court said in
Kozy
at 506, there
    should be no perceived impingement upon the manner of presenting the defence.
    This is so whether it be counsels viciousness in attacking a complainant or
    lies told by the accused.

[31]

The distinction between the legitimate and illegitimate uses of
    an accuseds attitude toward the offence and lack of remorse can be a fine one.
    However, in the circumstances of this case, I conclude that the sentencing
    judge erred in principle by treating the appellants testimony and denial of
    guilt as aggravating factors.

(3)

Did the sentencing judge fail to properly weigh the principles of rehabilitation
    and integration into society?

[32]

The appellant argues that the sentencing judge erred in concluding that
    the principles of rehabilitation and integration into society were not relevant
    considerations because of the passage of time and the fact that the appellant
    had not reoffended. These considerations were relevant and should have weighed
    in the appellants favour. Rehabilitation of the appellant was unnecessary
    because the evidence demonstrated that he was wholly integrated into society,
    and the ultimate objective of holding the offender to account has already been
    meant [sic].

[33]

I would reject this submission.

[34]

As this court held in
R. v. O.(A.)
, 2007 ONCA 144, 84 O.R. (3d)
    561 at paras. 42-49, the key consideration in deciding whether to sentence a
    young person as an adult is accountability:

The combined effect of ss. 72, 3 and 38 [of the
YCJA
]
is to identify accountability as the purpose that the youth court
    judge must consider when deciding an application to impose an adult sentence on
    a young person.
Accountability is achieved through the imposition of
    meaningful consequences for the offender and sanctions that promote his or her
    rehabilitation and reintegration into society.

See also
W.(M.)
at para. 100, and
R. v.
    K.O-M.
, 2017 ONCA 106 at para. 30.

[35]

Accountability is the equivalent of the adult sentencing principle of
    retribution:
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500 at paras. 80-81. As
    this court in
O.(A.)
explained at paras. 46-47, citing
M.(C.A.)
:

[F]or a sentence to hold a young offender accountable in the
    sense of being meaningful it must reflect, as does the retributive sentence,
    the moral culpability of the offender, having regard to the intentional
    risk-taking of the offender, the consequential harm caused by the offender, and
    the normative character of the offender's conduct (underlining omitted). We
    see no other rational way for measuring accountability.

[36]

Rehabilitation and reintegration are important considerations in the
    accountability inquiry, but, contrary to the appellants suggestion, they are
    not determinative of that inquiry:
O.(A.)
at para. 57.

[37]

To be sure, the circumstances of this case are unusual. In the usual
    circumstances, a young persons sentence would be determined while he or she
    was still a young person, or was relatively close in age to a young person. The
    appellant managed to avoid detection for almost three decades. He now presents
    as a man well established in the community, and argues that an adult sentence
    is not required either to rehabilitate him or to protect the public from future
    offending.

[38]

But the appellants submission overlooks the overarching purpose of the
    law, which is to achieve accountability. The sentencing judge considered all of
    the relevant factors. Although he considered that neither rehabilitation nor
    risk was a live issue, and that this weighed in favour of a youth sentence,
    this was subject to the caveat that the appellants motive for committing the
    crime was not understood. The sentencing judge did not err in concluding that a
    proportionate sentence in this case emphasized accountability rather than
    rehabilitation and reintegration.

(4)

The effect of the error in principle

[39]

The sentencing judge erred in principle in using the appellants
    testimony and denial of guilt as aggravating factors. What follows from this?

[40]

The Supreme Court addressed this question in
Lacasse
at paras.
    43‑44, per Wagner J:

I agree that an error in principle, the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor can justify the intervention of an appellate court and permit that court
    to inquire into the fitness of the sentence and replace it with the sentence it
    considers appropriate. However, in my opinion, every such error will not
    necessarily justify appellate intervention regardless of its impact on the
    trial judges reasoning. If the rule were that strict, its application could
    undermine the discretion conferred on sentencing judges. It is therefore
    necessary to avoid a situation in which [
translation
]
    the term error in principle is trivialized:
R. v. Lévesque‑Chaput
,
    2010 QCCA 640, at para. 31 (CanLII).

In my view, an error in principle, the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor will justify appellate intervention only where it appears from the trial
    judges decision that such an error had an impact on the sentence.

[41]

In other words, an error in the reasoning process  an error in
    principle, failure to consider a relevant factor, or the erroneous
    consideration of an aggravating or mitigating factor  does not justify
    intervention on appeal
per se
. The error must have had an impact on
    the sentence imposed. If it did not, the ability to intervene on appeal depends
    on a demonstration that a sentence is, in any event, demonstrably unfit.

[42]

In assessing whether a sentence is demonstrably unfit, an appellate
    court may not intervene simply because it would have weighed the relevant
    factors differently:
Lacasse
at paras. 49, 52.

[43]

Finally, it is important to emphasize that sentencing is a discretionary
    decision and deference to the sentencing judges decision remains the order of
    the day. Demonstrable unfitness is a very high threshold that must be met
    before an appellate court may intervene. The focus must be on the fundamental
    principle of proportionality:
Lacasse
at paras. 52-53.

[44]

Applying these principles, in my view there is no basis for this court
    to intervene.

[45]

Although he erred in considering the appellants testimony and denial of
    guilt as aggravating factors, in the context of his decision as a whole, the
    error had no impact. The sentencing judge considered all of the relevant
    factors. He properly recognized that the offence of murder was not by itself
    sufficient to mandate an adult sentence. At para. 85 of his reasons, he
    described the vicious nature of the appellants attack on his helpless victim
    and stated: This purposeful and savage attack that is so intensely shocking to
    society then and now mandates an adult sentence. Although he went on to refer
    to the appellants testimony and denial of guilt, it was incidental to his
    reasoning, which emphasized the seriousness and circumstances of the
    appellants crime. This is evident from his description of the appellants
    testimony as simply another factor persuading him that an adult sentence was
    warranted
.

[46]

In any event, I am not persuaded that an adult sentence is demonstrably
    unfit.

[47]

The appellant committed a gruesome crime at the age of 15. He sexually
    assaulted and murdered his elderly, vulnerable neighbour. He went on as though
    nothing had happened, avoiding justice for nearly 30 years. There is no
    explanation for his crime; no sense of what motivated him to have committed so
    heinous an act.

[48]

In all of these circumstances, the sentence cannot be said to constitute
    an unreasonable departure from the principle of proportionality. In my view the
    sentence imposed is a proportionate sentence that achieves accountability for
    the serious crime the appellant committed.

CONCLUSION

[49]

I would dismiss the appeal.

Released:

SEP /5 2017                           Grant Huscroft
    J.A.

KMW                                       I agree K.M.
    Weiler J.A.

I agree
    K. Feldman J.A.

[1]
These proceedings were originally subject to a publication ban under s.110 of
    the
Youth Criminal Justice Act
. The ban was lifted upon the imposition
    of an adult sentence pursuant to s. 110(2)(a) of the Act: see reasons for
    sentence at para. 91.

[2]
The appellant was also convicted of aggravated sexual assault, but that charge
    was stayed pursuant to the principle in
R. v. Kienapple
, [1975] 1
    S.C.R. 729.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2017 ONCA 751

DATE: 20170927

DOCKET: C63252

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Kevin Foster

Appellant

Stephen Whitzman, for the appellant

Katherine Beaudoin, for the respondent

Heard: September 21, 2017

On appeal from the conviction entered by Justice Dale
    Parayeski of the Superior Court of Justice on July 15, 2015.

REASONS FOR DECISION

(A) Overview

[1]

The appellant was convicted of possession of a
    firearm knowing it to be obtained by crime pursuant to s. 96(1) of the
Criminal Code.
The firearm belonged to his employer, Brinks.

[2]

The appellant raises two grounds of appeal that
    are said to constitute reversible errors: (1) the trial judge erred by finding the
    appellants police statement voluntary; and (2) the admission of evidence
    derived from an involuntary statement the appellant gave to non-police actors
    rendered the trial unfair.

[3]

We do not agree with either of these submissions.

(B) General Background

[4]

A Brinks regional security director met with the
    appellant following an investigation into missing money and a firearm. The security
    director first asked the appellant about the missing money. The appellant was
    told that if he returned the money, Brinks would not pursue the matter with the
    police. The appellant returned most of the money, after which the security director
    turned his attention to the missing gun.

[5]

The appellant admitted that he disposed of the
    gun in a lake. He showed the security director where he had thrown it into the
    water. While the appellant was assured that if he returned the gun, the security
    director would be prepared to tell the court that he had cooperated, he was not
    promised immunity from prosecution, nor could he have been. To the contrary,
    implicit in the security directors promise to tell the court that the
    appellant had cooperated in the return of the gun was the fact that the police
    would be informed of the appellants conduct and criminal charges could result.

[6]

While Brinks had earlier informed the police
    about the missing gun, they later reported to the police what they had learned
    from the appellant. Brinks also provided the police with a video copy of the
    appellants two statements: one relating to the stolen money, and the other
    relating to the gun. The police conducted a search of the lake where the gun
    had been thrown, but only recovered the guns slide.

[7]

Ten days following his discussion with the security
    director, the appellant was arrested by the police and then interviewed. He
    confessed to having disposed of the gun in pieces.

(C) Voluntariness

[8]

The Crown sought only to lead the police
    statement, and not the appellants videotaped statements to the security
    director. The appellant argues that the trial judge erred in finding the police
    statement voluntary, maintaining that it was tainted by what he argues was an
    earlier involuntary statement to the security director. While the appellant accepts
    that the trial judge correctly stated the law relating to the derived
    confessions rule, he submits that trial judge erred in applying the rule. We
    disagree.

[9]

The derived confessions rule in this case rests
    on the understanding that the statement given to the security director about
    the gun was an involuntary one, thereby tainting the subsequent police
    statement: see
R. v. I.(L.R.) and T.(E.)
,

[1993] 4 S.C.R. 504, at pp. 526-527. We first observe that it is not
    at all clear that there was any voluntariness issue relating to the first
    statement, such that the derived confessions rule was even operative. It
    appears that the parties and trial judge simply proceeded on the assumption
    that the statement given to the security director about the gun was
    involuntary, thereby triggering the need to consider the derived confessions
    rule. No one appears to have directly turned their minds to whether the security
    director was a person in authority (an issue upon which the appellant bears the
    onus):
R. v. Hodgson
, [1998] 2 S.C.R. 449, at
    paras. 34-37. Moreover, even if the security director stood in a position of
    authority, there is a real question about whether the inducement was strong
    enough to raise a reasonable doubt about whether the will of the subject had
    been overborne:
R. v. Oickle
, 2000 SCC 38, at
    para. 57.

[10]

Despite our reservations about the basis for the
    assumption that the statement to the security director about the gun was
    involuntary, an assumption that clearly inured to the appellants benefit, we
    see no error in the application of the derived confessions rule. The trial
    judge cited the correct law on this point; an involuntary statement may render
    a later statement involuntary where, the tainting features which disqualified
    the first confession continued to be present or if the fact that the first
    statement was made was a substantial factor contributing to the making of the
    second statement:
I.(L.R.) and T.(E.)
,

at p. 526.

[11]

The trial judge accepted the concession of both
    counsel that the tainting features of the first statement were no longer
    present during the second statement. He also concluded that while the earlier
    statement was a factor in the appellants later statement, it fell short of
    being a substantial factor. He noted various factors in support of this
    conclusion, including:

(1)

the distance in time
    between the statements;

(2)

the fact that
    different people took the statements;

(3)

the fact that the
    police statement commenced with a clear comment by the officer that the
    appellant should not be influenced in any way in making a statement by
    anything that someone in authority may have already said to him;

(4)

the fact that the
    appellant had spoken to duty counsel prior to the police interview; and

(5)

the fact that although
    the earlier statement was frequently referenced by the police officer, it was
    largely met with assertions of silence.

[12]

It was open to the trial judge to conclude that
    the earlier statement was not a substantial factor contributing to the making
    of the police statement. This was largely a question of fact. As this court
    noted in
R. v. M.D.
, 2012 ONCA 841, at para.
    59, appellate review in these circumstances is limited to deciding whether the
    judge erred in her assessment of the evidence, failed to consider relevant
    circumstances, or failed to apply the correct principles. We see no such error
    in the trial judges approach. This ground of appeal fails.

(D) Exclusion of Evidence for Reasons of
    Trial Fairness

[13]

The appellant changed counsel after he was found
    guilty. He then sought permission to reopen the trial so that he could argue
    that some evidence should have been excluded because it adversely impacted the
    fairness of the trial. The trial judge dismissed the request to re-open, finding
    that it was really a disguised attempt to challenge the competence of previous
    counsel, a matter the trial judge concluded was best left for appeal.

[14]

The appellant does not raise an issue of counsel
    competence on appeal. Instead, he maintains that the trial judge was wrong to
    dismiss the application to re-open the trial so that he could argue for the
    exclusion of evidence. He does not press the issue respecting the failure to
    re-open, as long as this court is prepared to consider the substantive
    arguments respecting the exclusion of evidence. We do not see any error in the
    trial judges dismissal of the application to re-open. In any event, we would
    not give effect to the appellants arguments regarding why the admission of
    certain evidence resulted in unfairness.

[15]

The appellant maintains that his trial was
    rendered unfair because the trial judge considered evidence that was derived
    from his involuntary statement to the security director. In particular, he
    argues that all of the evidence arising from his comments to the security
    director about the gun, its whereabouts, and what he did with it, should have
    been excluded.

[16]

For the reasons already given, we have strong
    reservations about whether the statement to the security director was
    involuntary. The appellant seems to suggest that because the Crown proceeded as
    if it was, it was a Crown concession to which this court is bound. We do not
    agree. The appellant calls upon this court to assess whether the fairness of
    the trial was adversely impacted by the admission of certain evidence. That
    analysis necessarily requires this court to consider the circumstances in which
    that evidence was taken.

[17]

Even if the statement was involuntary, there is
    nothing about the way the statement was taken that would trigger any concerns
    about trial fairness. The record establishes that the appellant was treated
    respectfully by the security director, that he was not coerced into speaking
    with him, and that the security director acted in good faith.

[18]

Leaving aside the fact that we see nothing wrong
    with how the appellant was treated that would raise any trial fairness
    concerns, he admitted to possession of the gun in his admissible police
    statement. While the impugned evidence may have also factored into the trial
    judges reasons for conviction, it was entirely unnecessary to the analysis. The
    appellant told the police that he possessed the gun.

(E) Conclusion

[19]

The appeal is dismissed.

G. Pardu J.A.

Grant Huscroft J.A.

Fairburn J.A.