WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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

WARNING

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

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an
    order is made under section 486.4, on application of the prosecutor in respect
    of a victim or a witness, or on application of a victim or a witness, a judge
    or justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application
    of the prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the interest
    of the proper administration of justice.

(2.1) The offences for
    the purposes of subsection (2) are

(a) an offence under
    section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
    committed for the benefit of, at the direction of, or in association with, a
    criminal organization;

(b) a terrorism offence;

(c) an offence under
    subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of
    Information Act
; or

(d) an offence under
    subsection 21(1) or section 23 of the
Security of Information Act
that
    is committed in relation to an offence referred to in paragraph (c).

(3)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for
    an order shall

(a) apply in writing to
    the presiding judge or justice or, if the judge or justice has not been
    determined, to a judge of a superior court of criminal jurisdiction in the
    judicial district where the proceedings will take place; and

(b) provide notice of
    the application to the prosecutor, the accused and any other person affected by
    the order that the judge or justice specifies.

(5)     An applicant for
    an order shall set out the grounds on which the applicant relies to establish
    that the order is necessary for the proper administration of justice.

(6)     The judge or
    justice may hold a hearing to determine whether an order should be made, and
    the hearing may be in private.

(7)     In determining
    whether to make an order, the judge or justice shall consider

(a) the right to a fair
    and public hearing;

(b) whether there is a
    real and substantial risk that the victim, witness or justice system
    participant would suffer harm if their identity were disclosed;

(c) whether the victim,
    witness or justice system participant needs the order for their security or to
    protect them from intimidation or retaliation;

(d) societys interest
    in encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and
    deleterious effects of the proposed order;

(g) the impact of the
    proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
    that the judge or justice considers relevant.

(8)     An order may be
    subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
    or justice refuses to make an order, no person shall publish in any document or
    broadcast or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other
    information that could identify the person to whom the application relates as a
    victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keating, 2020 ONCA 242

DATE: 20200401

DOCKET: C65506

Doherty, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Keating

Appellant

Michael Pasquale, for the appellant

Adam Wheeler, for the respondent

Heard: In-writing appeal submitted to the panel
    on March 23, 2020

On appeal from the convictions entered by
    Justice Paul T. OMarra of the Ontario Court of Justice, dated April 12, 2018.

Doherty J.A.:

I

overview

[1]

This is an appeal from conviction only.

[2]

The appellant was charged with three pimping
    related offences. The trial judge convicted on all three counts.

[3]

The appellant acknowledges that the conduct and
    events described by the complainant, and accepted as factually accurate by the
    trial judge, established the requisite elements of the three offences charged.
    The appellant submits, however, that the trial judge erred in finding that the
    appellant was the person who committed the offences.

II

the evidence

[4]

The Crowns case rested almost exclusively on
    the evidence of the complainant. She testified and, on consent, the trial judge
    admitted a video statement made by the complainant pursuant to s. 715.1 of the
Criminal
    Code
. That statement, once admitted, became part of her testimony.

[5]

In April 2017, the complainant was destitute,
    abusing drugs and trying to survive on the streets by herself. She was 17. Her
    parents had ordered her out of the house earlier.

[6]

The complainant found herself alone in a Tim
    Hortons in Thornton, Ontario. She was under the influence of the drug Xanax. The
    complainant contacted a person she knew as Chicken on her Instagram. They had
    communicated over Instagram previously. They had never met.

[7]

Eventually, Chicken, at the complainants
    request, picked her up at the Tim Hortons. Over the next four or five days, the
    complainant and Chicken were constantly together, first, at his mothers home and
    later at various hotels. They had sexual intercourse on various occasions. They
    were joined by another woman, who the complainant knew as Shanice. The
    complainant soon realized that Shanice worked as a prostitute for Chicken.

[8]

Chicken quickly began to pressure the
    complainant to work as an escort. He assured her that she could make some easy
    money. Chicken prepared and placed an advertisement offering the complainants
    sexual services on a website known as Backpage. Chicken controlled all
    inquiries generated by that advertisement.

[9]

Having  lived on the streets for about two years,
    the complainant had some familiarity with the world of escorts. She did not
    want to become involved in prostitution and did all she could to avoid meeting
    the clients who answered the advertisement placed by Chicken. She and Chicken
    quarrelled over her reluctance to work as an escort. He became very angry.

[10]

During the  four or five days the complainant
    was with Chicken, she had little sleep and was constantly under the influence
    of drugs that he provided.

[11]

The complainant met only one client. He paid her
    the agreed upon amount for sex, but apart from some awkward kissing, they only
    talked. The complainant gave the money to Chicken after the client left.

[12]

On the fourth or fifth night that the
    complainant was with Chicken, she and Shanice got into a heated argument in a
    hotel room. Eventually, the complainant went to the front desk and asked the
    clerk to call the police. Chicken and Shanice fled before the police arrived.

[13]

The police took the complainant to the police
    station. A police officer conducted a video interview with the complainant
    later that night. This was the video eventually admitted at trial under s.
    715.1 of the
Criminal Code
.

[14]

In the course of the video interview, the
    complainant was shown screenshots taken from the complainants Facebook page,
    containing photos of a Facebook friend who used the name Teff Dot. The
    complainant told the police officer that the person in the photos was the same
    person she had been referring to as Chicken when describing the events of the
    previous four or five days.

[15]

The complainant did not know the identity of the
    person she knew as Chicken at the time she was interviewed by the police. The
    appellant was eventually arrested about six weeks later.

[16]

In her trial testimony, the complainant again
    identified the person in the Facebook photos as the person she knew and
    referred to as Chicken. The complainant also made an in-court identification of
    the appellant as that person. The complainant, who testified by closed circuit
    tv, indicated, however, that she could not see the appellant clearly on the
    camera, although she did notice that his hair was shorter than it had been.

[17]

The Crown also introduced into evidence a
    photograph of the appellant taken when he was arrested, about six weeks after
    the complainant spoke to the police.

[18]

The appellant did not testify or call any
    evidence.

III

Did the trial
    judge err in his consideration of the identification evidence?

[19]

There is no gainsaying the risks inherent in
    eyewitness identification. Equally, there can be no doubt that care must be
    taken by a trier of fact when assessing, and before relying on, eyewitness
    evidence.

[20]

It is important, however, that the risks be
    assessed in the context of the specific facts of the case. Here, the
    complainant testified that she met a person she knew as Chicken through
    Instagram. She had pictures of that person on her Facebook page. In her video
    statement, she identified the photographs as pictures of the person she knew as
    Chicken, the very same person she had been with continually over the previous
    four or five days. She gave the same evidence at trial.

[21]

The Facebook photographs, which the complainant
    identified as Chicken, were exhibits at trial. The trial judge compared those
    photographs to the mugshot photograph of the appellant taken some six weeks
    after the relevant events. He said:

I have examined Exhibit Number 3, the Facebook
    pages, and the mugshot taken in May 2017. Although they were black and white
    photocopies, the Facebook pages were dated January and October. I am satisfied
    they were of good quality. They have sufficient clarity for me as a trier of
    fact to identify the accused beyond a reasonable doubt.

[22]

The trial judge concluded that the complainants
    identification of the Facebook photographs as pictures of Chicken, the man who had
    tried to force her into prostitution, combined with the trial judges own
    observation that the Facebook pictures were indeed pictures of the accused as
    shown in his mugshot, was sufficient to prove beyond a reasonable doubt that
    the appellant and the person who the complainant referred to as Chicken were
    one in the same person.

[23]

The appellants primary submission arises out of
    the trial judges reliance on his own observation of the Facebook photographs
    to conclude that they were photographs of the appellant. The appellant argues
    that
R. v. Nikolovski
, [1996] 3 S.C.R. 1197 limits a trier of facts
    ability to identify an accused as a person depicted in a photograph or video to
    situations in which the photograph or video is a depiction of the accused
    committing the crime or acting in close proximity to the commission of the
    crime.

[24]

There is nothing in
Nikolovski
, the
    case law flowing from it, or logic which supports the limitation advanced by
    the appellant. In cases like
Nikolovski
, in which the photograph or
    video is relied on as the exclusive evidence to establish an accuseds guilt,
    it follows that the photograph or video must be sufficiently probative to carry
    the evidentiary burden on all essential elements of the offence. In practical
    terms, it must show the accused committing the offence.

[25]

In this case, the Crown did not depend exclusively
    on the identification by the trial judge of the appellant as the person in the Facebook
    photographs tendered by the Crown. The Crowns case had two planks. First, the
    Crown relied on the complainants evidence that the person shown in the
    Facebook photographs was the same person she had lived with the preceding four
    or five days, and the same person who had attempted to coerce her into acting
    as an escort. Second, the Crown relied on the trial judges comparison of the
    photographs of the person in the Facebook photographs with the person shown in
    the appellants mugshot. Based on that comparison, the trial judge was
    satisfied that the appellant, who was obviously the person shown in the mugshot,
    was also the person shown in the Facebook photographs identified by the
    complainant.

[26]

The Facebook photographs, on their own, could
    not prove that the accused committed any crime. The complainants evidence,
    which the trial judge accepted after careful analysis, established that the
    person in the Facebook photographs, known to the complainant as Chicken,
    committed the crimes alleged. The trial judges in-court observations,
    including his assessment of the complainants credibility and acceptance of her
    testimony, allowed him to conclude that the person in the Facebook photographs who
    had committed the crimes, was the same person who was before him in court. The
    trial judges reliance on his own observations to forge the connection between
    the perpetrator of the crimes and the accused before the court did not offend
    the analysis in
Nikolovski
or any other evidentiary principle.

[27]

The other submissions advanced by the appellant
    effectively challenged the reasonableness of the convictions. The appellant
    makes many of the same arguments that were made at trial. For example, he
    submits that the police failed to take basic and necessary investigative steps,
    that the trial judge failed to consider the lack of corroborating evidence, and
    that the complainant had a motive to fabricate the allegations against the
    appellant.

[28]

The trial judge considered these arguments and
    the other submissions made at trial. He rejected all of them. In doing so, he was
    clearly alive to the dangers associated with identification evidence. His
    analysis reveals neither legal nor factual error.

[29]

Nor can it be said that the evidence could not
    reasonably support the trial judges findings. In assessing the complainants
    evidence that Chicken was the person shown in the Facebook photographs, it is significant
    that when the complainant identified the picture as a picture of Chicken, she
    had been living with that person on intimate terms over the previous four or
    five days. Her identification of Chicken as the person in the photographs was
    hardly based on a fleeting glance.

[30]

The trial judge gave careful and thorough
    reasons for accepting the complainants evidence, including her evidence that
    Chicken, the person who attempted to coerce her into prostitution, was the
    person depicted in the Facebook photographs. In concluding that the appellant
    before the court was the person in the photographs, the trial judge had regard
    to the quality of the photographs and carefully took into account certain
    differences between the appellants courtroom appearance and the appearance in
    the photographs. The trial judges findings were reasonably open on the
    evidence and reasonably arrived at by him.

[31]

I would dismiss the appeal.

Released:
DD
APR 01 2020

Doherty J.A.

I agree David Watt J.A.

I agree M.L. Benotto J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.J., 2020 ONCA 280

DATE: 20200429

DOCKET: M51506 (C67525)

Brown J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant (Applicant)

Colleen McKeown, for the applicant

Elena C. Middelkamp, for the respondent

Heard by Teleconference: April 24, 2020

REASONS FOR DECISION

OVERVIEW

[1]

The applicant, J.J., applies for bail pending
    appeal. This is his second application; the initial order granting him bail
    pending appeal was revoked.

[2]

On April 18, 2019, the applicant was convicted
    of one count of sexual assault. On October 7, 2019, he was sentenced to three
    years in custody, in addition to four months credit for pre-sentence custody.

[3]

The applicant applied for bail pending appeal.
    The Crown consented to his release. Bail pending appeal was granted by order of
    Fairburn J.A. dated October 18, 2019. The applicant entered into a recognizance
    in the amount of $7,500, with two sureties: his mother pledged $6,000; his
    sister $1,500. The terms of release required the applicant to live with his
    mother under house arrest.

[4]

Notwithstanding that requirement, on November
    28, 2019, the applicant was arrested and charged with several new offences,
    including firearms offences, drug offences, and breaches of a probation order
    and of the recognizance signed on October 18, 2019 (the November Charges).

[5]

The Crown thereupon sought and obtained a
    revocation of the applicants bail pending appeal, by order of Miller J.A.
    dated December 16, 2019.

[6]

On December 19, 2019, the applicants bail
    hearing on the November Charges proceeded in the Ontario Court of Justice in
    Hamilton. Bail was set but not met. The Justice of the Peace determined that
    the applicant could only be released with a new surety who could establish his
    or her financial viability, to be approved in bail court. The terms set by the
    Justice of the Peace included 24/7 supervision and ankle monitoring.

[7]

On April 15, 2020, the applicant proposed two
    new sureties: D.T.D., who has been the applicants friend since elementary
    school; and his father, D.C.D. As sureties, D.C.D. pledged $14,000; his son
    pledged $1,000. Both proposed sureties were cross-examined by the provincial
    and federal Crowns and approved by a Justice of the Peace. A release order was
    granted.

[8]

The applicant remains in the Hamilton-Wentworth
    Detention Centre and brings this second application for bail pending appeal.

POSITIONS OF THE PARTIES

[9]

The Crown opposes the application on the basis
    that the applicant has not demonstrated that his detention is not necessary in
    the public interest:
Criminal Code
, R.S.C.
    1985, c. C-46, s. 679(3)(c). In particular, the Crown relies on the public
    safety component of the public interest criterion:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23. The Crown submits
    that the applicants failure to comply with the terms of his October 2019
    release signifies that a risk exists that he will commit further offences if
    released on bail pending appeal.

[10]

The applicant submits that the strictness of his
    bail plan attenuates any such risk. The new sureties were found satisfactory by
    the Justice of the Peace who granted interim release on the November Charges.
    As well, the applicants bail plan requires that he: reside with his sureties;
    be in the visual presence of one surety at all times; remain in their residence
    at all times except for medical emergencies or when he is in the direct visual
    presence of a surety; wear an electronic ankle bracelet provided by Recovery
    Science Corporation (RSC); and enter into a monitoring agreement with that
    firm, which includes a requirement that the applicant provide photo
    verification of a suretys presence each time he leaves the residence.

ANALYSIS

[11]

I am not persuaded that the applicant has
    established that his detention is not necessary in the public interest.

The public safety component

[12]

The public safety component of s. 679(3)(c) of the
Criminal
    Code
essentially tracks the requirements of s. 515(10)(b)
    governing an accuseds release pending trial:
Oland
, at para. 24. B
ail is denied only for those who pose a
    "substantial likelihood" of committing an offence or interfering with
    the administration of justice, where this "substantial likelihood"
    endangers "the protection or safety of the public" and when it is
    "necessary" for public safety:
R. v. Morales
, [1992] 3
    S.C.R. 711 at p. 737. As was noted in
Morales
, at p. 738:

[T]he bail system also does not function properly if
    individuals commit crimes while on bail. One objective of the entire system of
    criminal justice is to stop criminal behaviour. The bail system releases
    individuals who have been accused but not convicted of criminal conduct, but in
    order to achieve the objective of stopping criminal behaviour, such release
    must be on condition that the accused will not engage in criminal activity
    pending trial.

[13]

Several reasons lead me to conclude that even
    under the applicants new bail plan there exists a substantial likelihood that
    he will commit a criminal offence that would endanger the safety of the public.

[14]

The first involves the November Charges. The
    October 2019 order of Fairburn J.A. required the applicant to reside with his
    sureties  his mother and sister  and remain in their residence at all time
    except for medical emergencies or unless you are in the presence of either of
    your sureties.

[15]

The police synopsis of the November Charges
    states that on the evening of November 28, 2019 members of the Hamilton Police
    Service were monitoring a known drug house when a car parked in front of the
    house. A person left the house, entered the car, and the car went on its way.
    The police pulled the car over at 10:49 p.m. Five persons were in the car. The
    applicant was in the front passenger seat. A glass pipe with suspected cocaine
    residue was observed in plain view in the vehicle. A clear baggy of white
    powder fell to the ground from the back seat when the occupants left the car. A
    search of the vehicle disclosed a backpack on the back seat that contained a
    loaded handgun. Baggies containing what was believed to be fentanyl and heroin
    were also found.

[16]

The police synopsis states that the applicant
    was bound by two firearms prohibitions and two probation orders. He was charged
    with two counts of possession contrary to order, two counts of breach of
    recognizance, and two counts of failure to comply with a probation order. He
    was also charged with drug offences.

[17]

As applicants counsel points out, the applicant
    is presumed innocent of committing the new charges until proven guilty. However,
    as the December 16, 2019 endorsement of Miller J.A. records, at that time
    applicants counsel conceded that the test for revocation of the release order
    and cancellation of the recognizance had been met by reason of the November Charges.

[18]

The terms of the October 2019 release order of
    this court required the applicant to be in presence of a surety if he left his residence
    for a non-medical emergency. The evidence strongly indicates that the applicant
    was not on the evening of November 28, 2019.

[19]

Second, evidently the financial consequences to
    his mother and sister of breaching his recognizance were not sufficient to
    dissuade the applicant from leaving their presence. Notwithstanding the
    assurances given by the applicant in his most recent affidavit to abide by the
    directions of his sureties, his track record does not give me confidence that
    he will do so.

[20]

I come to this view not only based on the events
    underlying the November Charges, but also on the basis of the applicants
    criminal record. In his affidavit, he acknowledges that he has a criminal
    record in addition to the sexual assault conviction that is the subject of his
    appeal. As a youth, the applicant was convicted of assault (2011), theft under
    $5,000, failure to comply with an undertaking, and possession of stolen
    property (under $5,000) (2013). As an adult, he was convicted of simple drug
    possession (2016), and he pleaded guilty to breaking and entering and was
    sentenced to four months in jail (2019). For purposes of assessing the public
    safety factor, the existence of a conviction for failure to comply with an
    undertaking is troubling.

[21]

Third, the police synopsis records that a loaded
    handgun was found in the car on the evening of November 28, 2019. Whether the
    Crown can establish that the applicant had the knowledge and control required
    to prove possession of the handgun is a matter for a later trial. But, for
    purposes of this application, it is a relevant factor that the applicant, who
    was to be in the presence of a surety, apparently was in a car with others
    where a loaded handgun was present.

[22]

Fourth, the younger of the proposed sureties, D.T.D.,
    was convicted five years ago of mischief under $5,000 and failure to comply
    with an undertaking. I accept the Crowns submission that while those
    convictions do not tip the scale against the suitability of D.T.D. as a surety,
    the conviction for failure to comply with an undertaking should be of concern
    to the court.

[23]

Fifth, I have read the materials filed by the
    applicant from RSC. The monitoring service it offers uses a GPS ankle bracelet
    attached to the applicant and provides real-time information about the
    applicants location, as well as periodic compliance reports.

[24]

There are limits to the practical effectiveness
    of the RSC service. In a document titled, Overview of Criminal Programs, the
    company states:

In our view, monitoring ought not to be relied upon if the
    required standard is to prevent violations or to ensure an immediate police
    response. Rather, monitoring is best thought of as a risk management tool - it
    cannot prevent an accused from fleeing nor can it guarantee police intervention
    in a breach or offence in progress.

[25]

RSC makes a similar point in a document titled,
    Radio-Frequency (RF) & GPS Monitoring for Criminal Cases

Program Summary, which states:

16. While the system can and does deliver violation alerts very
    quickly, typically in 1-10 minutes, we do not encourage reliance on rapid
    police response time as a factor in making a decision to release rather than
    detain an accused. This is for two reasons: firstly, because there are many
    factors that create the potential for delay in the chain of communications that
    lead from a violation event to the ultimate police response and, secondly,
    because even when there are no such delays and the police response is
    immediate, that may still not be sufficient to prevent an accused from fleeing
    or committing an offence.

17. These considerations regarding response time lead us to
    encourage decision makers to view monitoring not as a prevention tool but as a
    risk management tool that, in some cases, can have a significant impact on a
    plans ability to meet the applicable legal requirements

[26]

In
R. v. Fleming
, [2015] O.J. No. 4380 (S.C.J.), Trotter J. (as he then was),
    pointed out at para. 18 that GPS monitoring only reveals where a person is, not
    what he is doing. As observed by Hourigan J. (as he then was) in
R.
    v. Palijan
, [2012] O.J. No. 6549 (S.C.J.), at para. 25, a
    company such as RCS focuses on gathering evidence of compliance, not preventing
    non-compliance.

[27]

The weight to be given to an applicants
    willingness to enter into a GPS monitoring program with a company such as RCS
    will depend on the specific circumstances of a case:
R. v. Sotomayor
, 2014 ONSC 500, at para. 41, fn. 1. In the present case, I am not
    persuaded that the proposed GPS monitoring program significantly reduces the
    likelihood of the applicant
committing an offence that will endanger the
    safety of the public. While a GPS monitor can record the presence of the
    applicant at a specific location, such as the one where the events of November
    28, 2019 are alleged to have occurred, it cannot provide a quick response that
    would prevent such events. As well, the applicant does not have an unblemished
    record of complying with court orders.

[28]

Taking the evidence as a whole, I am not satisfied that the
    applicant has established that his release plan would reduce the risk of him
    re-offending. On the contrary, I conclude that the evidence demonstrates that a
    substantial risk exists that the applicant would commit a criminal offence that
    endangers public safety if released pending his appeal. I conclude that the
    public safety considerations are sufficient to warrant the continued detention
    of the applicant in the public interest.

The public confidence component

[29]

Although the Crown does not rely on the public confidence
    component of s. 697(3)(c), the applicant did file evidence about the merits of
    the appeal. He also filed some evidence regarding the COVID-19 pandemic. As
    stated in
Oland
at para. 27, the public safety and public confidence
    components are not to be treated as silos for a public interest analysis. I
    therefore will consider the evidence concerning the strength of the applicants
    appeal, as well as that concerning COVID-19: at para. 40.

[30]

The applicants conviction for sexual assault concerned events
    that took place when he was 20 years old and the complainant 15 years old. Both
    had been drinking at a party. There is no dispute that sexual intercourse took
    place between them. The only issue is whether the intercourse was consensual.
    The complainant testified that it was not, and that she had screamed for the
    applicant to stop. The applicant testified that the complainant wanted to have
    intercourse.

[31]

The applicant contends that there were inconsistencies and
    contradictions in the evidence of both the complainant and himself. His
    contends that the trial judge committed several errors: he discounted material
    inconsistencies and a deliberate falsehood in the complainants evidence; he
    improperly used post-offence conduct of the applicant, including a text the
    applicant sent to a friend about the incident; and he relied on impermissible
    stereotypical reasoning about the circumstances under which a 15-year old
    female would be interested in having sex in rejecting the applicants version
    of events as implausible.

[32]

The record available to assess the strength of the applicants
    grounds of appeal is, at this point, limited to the trial judges reasons.
    Transcripts of the evidence of the complainant and the applicant are not yet
    available. As a practical matter, the absence of those transcripts makes it
    difficult to assess the impact of the inconsistencies and contradictions raised
    by the applicant within the context of the entirety of the witness evidence,
    especially in the circumstances of a he said/she said case like the present
    one.

[33]

The applicant attempted to re-open his trial prior to sentencing,
    relying on evidence not led at the trial from a young woman who knew both the
    complainant and the applicant. The applicant submitted that the evidence would
    undercut that of the complainant. However, the applicants notice of appeal and
    argument on this application does not suggest that a motion for leave to adduce
    fresh evidence will be brought or that the trial judge erred in refusing to
    re-open the trial to admit such evidence.

[34]

The Crown does not dispute that the applicants appeal is not
    frivolous. However, I am not persuaded that the merits of the applicants
    appeal are such that they tip the scale against continued detention in light of
    the substantial risk to public safety that I have identified.

[35]

Finally, the applicant submits that his
    continued incarceration during the time of the COVID-19 pandemic is broadly
    relevant to the public interest analysis.

[36]

The fact of the current COVID-19 pandemic is a
    factor that can be taken into account in considering the public interest
    criterion:
R. v. Omitiran
, 2020 ONCA 261, at
    para. 26. The weight played by that factor depends upon the particular
    circumstances of each case. For example, it might play a role where an
    applicants known or documented health conditions, including his age, place him
    within a vulnerable group that is more likely to suffer complications and
    require hospitalization if he contracts the virus:
R. v. Kazman
, 2020 ONCA 251, at para. 17.

[37]

In the present case, the applicant is detained
    in the Hamilton-Wentworth Detention Centre. He is 23 years old. His affidavit
    does not disclose any medical condition that puts him in a group with increased
    vulnerability to the effects of COVID-19. While his counsels supporting
    affidavit states that in late March one employee at the Hamilton-Wentworth Detention
    Centre tested positive for the virus, the applicants record does not contain
    evidence of a significant COVID-19 outbreak at the facility.

[38]

Consequently, I do not see the fact of the COVID-19
    pandemic outweighing, on its own or in combination with the merits of the
    applicants appeal,
the substantial risk to public safety that I have
    identified.

DISPOSITION

[39]

For the reasons set out above, I dismiss the
    application for bail pending appeal.

David
    Brown J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Omitiran, 2020 ONCA 261

DATE: 20200420

DOCKET: M51469 (C67983)

Harvison
    Young J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Adekunle Johnson Omitiran

Applicant

Gabriel Gross-Stein and Riaz Sayani,
    for the applicant

Jeffrey Wyngaarden, for the respondent

Heard: March 31
    and April 9, 2020

REASONS
    FOR DECISION

A.

Introduction

[1]

The applicant was
    convicted of several offences arising out of a sophisticated credit card fraud scheme.
    The trial judge concluded that there was overwhelming body of evidence
    implicating the applicant as the perpetrator. On January 20, 2020, she
    sentenced the applicant to 48 months imprisonment and imposed a restitution
    order totalling $486,748.26. He has appealed his convictions and sentence and
    now seeks bail pending appeal.

[2]

I advised the parties
    on April 9, 2020, that the application was dismissed and that I would release
    the reasons later. These are those reasons.

B.

The offences

[3]

The numerous frauds in
    question involved stealing a customers personal information (such as credit
    card numbers, addresses, dates of birth, and PIN numbers), ordering a
    replacement credit card, and then using the fraudulent replacement card to make
    purchases or withdraw money without authorization. The fraudulent scheme was
    large and sophisticated. The trial judge found the applicant in possession of
    313 pieces of mail from over 200 people.

[4]

The applicant has been
    convicted on several fraud related charges before, in 2008 and 2015. He also has
    three prior convictions for failure to comply with a recognizance, including one
    while he was being supervised by his wife, one of his proposed sureties (2008),
    and one while he was awaiting trial for the offences currently under appeal
    (2018).

[5]

At the time of the
    offences under appeal, the applicant was on probation after being convicted for
    similar frauds. The offences now under appeal were committed in direct
    contradiction with his probation terms, which included a prohibition from
    possessing other peoples credit or debit cards, credit or debit card data,
    cheques, banking documents, or mail.

C.

Positions of the
    Parties

[6]

The applicant submits
    that there are arguable grounds of appeal and that there is no evidence that he
    would not surrender, given that he has attended court as required when he was
    on bail pending trial. He submits further that the public interest requires his
    release for the following reasons:

(i)

There are arguable
    grounds of appeal. These include the trial judges dismissal of an application
    pursuant to
R. v. OConnor
, [1995] 4 S.C.R. 411, in support of the
    applicants alternate suspect defence, and the trial judges alleged
    misapprehension of evidence relating to the use of nicknames, which was
    relevant to who possessed the Yorkville apartment where much of the
    incriminating evidence was found.

(ii)

While the applicant has
    a record for financial frauds, he is not violent.

(iii)

The release plan
    controls the risk that the applicant will reoffend. His wife, one of the proposed
    sureties, will pledge her equity in her house in the amount of approximately
    $400,000. The deterrent effect of this is very strong given the amount pledged
    is significantly higher than it was before, and his breach could put his wife
    and childrens home at risk.

(iv)

Recent case law has
    affirmed that the current COVID-19 pandemic is to be considered in bail
    hearings. This includes the fact that not only inmates are at greater risk of
    contracting COVID-19, but also that it is in the publics interest that the
    pandemic be contained. A reasonable member of the public will understand the
    applicants release in light of the public interest in preventing a mass
    outbreak and in preserving scarce medical resources.

[7]

For these reasons, the
    applicant concludes that the reviewability interest outweighs the enforceability
    interest, and the application should be allowed.

[8]

The Crown does not
    press its arguments that the accused has failed to meet his onus under s.
    679(3)(a) and (b) of the
Criminal Code
, R.S.C., 1985, c. C-46. Rather, it focuses
    on the public interest ground under s. 679(3)(c). The Crown points to four key
    factors which, it argues, weigh in favour of enforceability over reviewability
    and against release:

(i)

The grounds of appeal,
    if not frivolous, are very weak.

(ii)

The offences are
    serious and while not violent, caused financial pressure on many individuals
    and some financial institutions. The offences raise concerns about protection
    of the public, particularly in the present difficult economic circumstances
    created by the COVID-19 pandemic, and given the applicants record of
    reoffending.

(iii)

Because the applicant
    has some three years left on his sentence, he is unlikely to serve his sentence
    before his appeal is determined.

(iv)

The applicant has a
    demonstrated history of disregarding court orders and committing similar
    offences.

[9]

For all of these
    reasons, the Crown concludes that enforceability outweighs reviewability, and
    the application should be dismissed.

[10]

Within a day after the
    parties argued this motion before me on March 31, but before the court released
    its decision, the Crown advised that it had learned that the police were trying
    to arrest the applicant on new charges. The new charges are:

·

seven counts of breaching
    his recognizance, which the applicant entered into pending his trial on the offences
    now on appeal before this court;

·

one count of fraud;

·

one count of possession
    of property obtained by crime; and

·

one count of possession
    of identify information.

[11]

The charges arise from
    events occurring very shortly after the applicant was released on bail pending his
    trial in late 2017, until late 2019. Most of the breaches of his recognizance
    are relatively minor  such as being out of his home without his surety  but the
    other charges indicate additional fraudulent behavior.

[12]

First, it is alleged
    that between September and December 2017, the applicant was a party to a
    $1,035,000 fraud, where one victim was persuaded to transfer money to a
    purported romantic partner, but instead the funds went to bank accounts
    controlled by the applicant and his associates. Second, when
police executed a search warrant at the applicant's alleged new
    residence on May 9, 2019, they discovered valuable items such as suits and
    jewelry, which are suspected to have been obtained by crime. Subsequent
    analysis of the electronics seized from that residence revealed personal victim
    information, such as SIN numbers and credit cards.

[13]

The Crown submitted
    that the court should consider this information as a factor in this
    application. The applicant argued that this was new evidence that should not be
    admissible. After hearing argument on the point, I concluded that the new
    evidence was admissible.

[14]

On April 9, the parties
    made additional submissions on the new evidences relevance and weight. The
    Crown agreed with the applicant that the charges should be treated cautiously
    because they are simply allegations at this point. However, it did submit that
    the charges add weight to the public safety concern, given the applicants
    record of disregarding court orders and reoffending.

[15]

The applicant submitted
    that as allegations, the new charges should be given little weight. He
    acknowledged that he had not cross-examined Detective Constable Macdonald on
    his affidavit, which was sworn in support of the Crowns application and explains
    why the charges have not yet been formally laid. Nevertheless, the applicant
    submitted that there are inconsistencies on the face of the affidavit that
    should give rise to additional caution about the charges.

D.

Analysis

[16]

Detective Constable
    Macdonald states in his affidavit that he has tried unsuccessfully to arrange
    for the applicants arrest on the new charges at the Joyceville Penitentiary,
    where the applicant is incarcerated. While I agree with the applicant that Detective
    Constable Macdonald could have arrested him before he was taken to the Joyceville
    Penitentiary shortly after being sentenced in January, I do not think this impugns
    the fact that there are new charges and of what they allege. In any case, the
    new charges are simply allegations and must be treated cautiously as such. As
    such, I give them limited weight in this application.

[17]

I find that the grounds
    of appeal pass the low bar of not frivolous under s.  679(3)(a) of the
Criminal Code
.
    The first main ground of appeal is that the trial judge erred in dismissing the
    applicants
OConnor
motion for disclosure of third-party records in
    support of its alternate suspect theory. The third suspect was someone who had
    also been charged in respect of the same frauds but had been deported before
    trial. While this is arguable, it is not strong in the circumstances of this
    case. The applicants co-accused testified at the trial and tried to advance the
    theory that the central occupier of the Yorkville apartment was this person.
    The trial judge did not accept this evidence and gave thorough reasons for
    doing so.

[18]

The second ground of
    appeal is that the trial judge misapprehended the evidence relating to the use
    of a nickname by the appellant. This nickname was critical to the issue of who
    was in possession of the Yorkville apartment where much of the incriminating
    evidence was found. Again, a review of the trial judges reasons as a whole
    suggests that this is a weak ground of appeal.

[19]

With respect to s.
    679(3)(b), there is no evidence that the applicant will not surrender when
    required. He has done so in the past.

[20]

This application turns
    on the public interest factor under s. 679(3)(c). As I have just indicated, the
    merits of the appeal are arguable but weak. The central concern in this case is
    public safety. His offences were not violent, but they were serious, complex,
    and motivated by greed. The trial judge also noted that the frauds had an
    economic cost to society as a whole and required a sentence that emphasized
    denunciation and deterrence.

[21]

The applicant also has
    a significant record both for disregarding court orders and for committing
    similar frauds. He was on probation when he committed the offences now under
    appeal.

[22]

While I give little
    weight to the new charges, they do nothing to assuage the courts concern that the
    applicants release could put more people at risk of credit card and other
    frauds. As outlined earlier, the applicant is a repeat fraud offender and also
    has a history of convictions for breaching court orders. These charges are
    similar to the substantive charges with which he has been convicted in the
    past, and also include the breach of court orders:
see
R. v. C.L.
, 2018 ONCA 470, at
    paras. 15 and 16;
R. v. Mehan
, 2016 BCCA 129, 386 B.C.A.C. 1, at para.
    29.

[23]

Many individuals,
    businesses, and Canadas financial institutions are currently under increased
    stress due to the COVID-19 crisis. Given the applicants repeat offending and
    the current economic climate, protecting the public against the fraudulent
    schemes is an important factor weighing against the applicants release.

[24]

The applicant submitted
    that the release plan will provide the necessary assurance against breaches. The
    applicants wife is his proposed surety and he is to live with her. She is
    prepared to pledge the entire equity of over $400,000 in her home, which also houses
    their children. The applicant argues that he would not risk the roof over his
    childrens head.

[25]

I am not prepared to
    draw that inference. I note that it appears that the applicant has lived apart
    from his family at various times, though his wife states that he is a good
    father and that they miss him. In addition, his wife was his surety when the
    applicant breached his bail by failing to advise the police that he had moved
    in 2008. I am not satisfied that she is able to control her husbands conduct
    or that she would contact the police if he breached any conditions.

[26]

I do not agree that the
    recent COVID-19 outbreak tips the balance in favour of release in these
    circumstances, though it is a factor to be considered: see, for instance,
R. v. Kazman
,
    2020 ONCA 251, at paras. 16-18;
R. v. J.S.
, 2020 ONSC 1710, at paras. 18-19.

[27]

Finally, given the
    length of his sentence, it is highly unlikely that the applicant will have
    served his sentence before his appeal is determined.

[28]

In this case, given the
    weak grounds of appeal, the seriousness of the offences of which the applicant
    was convicted, the concerns about his compliance with any release plan, his record
    of recidivism, and the length of sentence that was imposed, the public interest
    analysis favours enforceability over reviewability. I cannot conclude that a
    reasonable, fully informed member of the public would understand his release to
    be warranted in these circumstances.

[29]

The application is
    dismissed.

Released: April 20, 2020

A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Paul, 2020 ONCA 259

DATE: 20200417

DOCKET: C65497

Roberts, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tola Dirk Paul

Appellant

Maurice Mattis and Lucas Jack-Sadiwnyk,
    for the appellant

Kevin Rawluk, for the respondent

Heard: January 10, 2020

On appeal from the conviction entered by
    Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a
    jury, on March 12, 2018, with reasons reported at 2018 ONSC 1643.

Harvison Young J.A.:

A.

Overview

[1]

The appellant, Tola Paul (Paul), was convicted
    of
aggravated assault, and possession of a weapon for a
    dangerous purpose
. He was also found guilty of assault with a weapon, but
    that charge was stayed to avoid double jeopardy. These charges were laid after Paul
    hit Paul Campbell (Tall P) in the hand with a machete. There is surveillance video
    footage of the events immediately prior to and following the strike, which
    occurred outside a strip mall bar. Paul appeals from his convictions on the
    basis that the trial judge erred in refusing to put the defences of
    self-defence and defence of others to the jury. The trial judge held that there
    was no air of reality to these defences, specifically because she found that the
    jury could not reasonably conclude that the act was reasonable in the
    circumstances.

[2]

I would allow the appeal. While the trial judge
    correctly identified the applicable legal principles, she erred in the
    application of these principles. There was evidence before her upon which a
    properly instructed jury acting reasonably could have concluded that the
    defences of self-defence and the defence of others were made out. The defences
    had an air of reality and should have been put to the jury.

B.

Background

[3]

At trial, the jury heard evidence from the
    security guard at Africa House that evening, Tequan Campbell, and from the
    appellant. They also saw surveillance video footage of much of what transpired from
    three different angles. Here, I review only the evidence relevant to the
    convictions on appeal.

(1)

Tequan Campbells Evidence

[4]

On April 17, 2016, Campbell was working as a
    security guard at the bar known as Africa House. The appellant entered with
    three other men: Kristian Gatto; a man referred to as the South Park guy; and
    a man referred to as Richard. Campbell testified that he asked the appellant not
    to leave the bar with a beer. Tall P also told the appellant to leave his beer
    in the bar, then Tall P went upstairs. According to Campbell, the appellant
    became upset, and also went upstairs and outside with his beer. At this point,
    Tall P and the appellant were having a face-to-face, during which Tall Ps
    shoulder touched the appellants shoulder.

[5]

Campbell then heard people yelling outside. He
    went upstairs and looked out the door. Tall P was on his cell phone and was arguing
    with Gatto and the South Park guy. Campbell then saw the appellant approach
    Africa House quickly from the south with a machete in his hand. When he was
    about ten feet from Tall P, the appellant was restrained by another man
    referred to as the dreadlocks guy, before turning and walking away. At this
    point, other people began coming outside from the bar and walking south,
    including Campbell.

[6]

Campbell testified to seeing Tall P and Gatto
    arguing on the sidewalk. Gatto lifted his shirt to reveal a machete in his
    waistband. Campbell also saw Tall P and the appellant fighting in the parking
    lot between an SUV and another car. At this point, Tall P had a machete in one
    hand and a knife in the other. The appellant had a hammer.

[7]

Campbell then saw the appellant running north
    with a machete. Campbell, and others who were outside, also ran north. The
    appellant caught up to Tall P at the door to Africa House, where he hit him
    with the machete.

(2)

The Appellants Evidence

[8]

The appellant testified to going to Africa House
    on the night in question with three friends. At some point, he went to go
    outside and Campbell asked him to leave his drink downstairs. As he went up the
    stairs, Tall P was walking behind him and said, All you fucking guys dont
    listen. You all just want to do what you feel like. Tall P was swearing at the
    appellant and the appellant was swearing back at him. While they were on the
    stairs, Tall P threatened him and pulled out a knife. The appellant walked
    outside and Tall P followed. Gatto and South Park guy were already outside. The
    appellant testified that Tall P threatened to stab the appellant and was on his
    cell phone asking someone to come and link him.

[9]

The appellant then walked south and retrieved a machete
    from the back of the SUV. He began walking towards Tall P to scare him but was
    restrained by the dreadlocks guy, and then returned the machete to the SUV.

[10]

The appellant says he then walked back to Tall
    P, this time with only a cigarette in his hands. At this point, Tall P was talking
    to Gatto, and the appellant testified that Tall P was still threatening him with
    the knife and he felt scared. He says he then returned to his SUV to listen to
    music and to smoke.

[11]

While he was in the SUV, he heard someone say, These
    guys stabbed me and recognized Gattos voice. He then saw Tall P running
    towards him with a machete. Tall P swung the machete which hit the SUVs door
    and fell to the ground. The appellant then reached for a sledgehammer in the
    SUV. Tall P struck the appellant on the back with the knife and the appellant
    swung the hammer, which touched Tall P and then dropped to the ground.

[12]

The appellant then picked up the machete, and
    Tall P turned around and ran. Tall P was carrying a knife. When Tall P reached
    the entrance to Africa House, he turned around. The appellant says that he did
    not know if Tall P was going to attack him or his friends, and was still
    afraid. He swung the machete at Tall P and cut his hand.

[13]

Tall P then went inside Africa House. The appellant
    testified to following him inside to see if Tall P was coming back with
    anybody.

(3)

The Agreed Statement of Facts

[14]

It was agreed that Tall P sustained an injury to
    his hand requiring surgery and that Gatto received a wound in his upper abdomen
    approximately three inches deep.

(4)

The Parties Submissions

[15]

The appellant brought an application to have the
    defences of self-defence and defence of others put to the jury on the charges
    of aggravated assault and assault with a weapon.

[16]

Before the trial judge, the appellant argued
    that there was a sufficient evidentiary foundation to ground the defences of
    self-defence and defence of others. He pointed to the evidence that Tall P, who
    is considerably taller than the appellant, threatened him with a knife and had
    a knife in his hand the whole time. The appellant then heard, while he was
    sitting in the SUV, that Tall P had stabbed and attacked his friend with a
    machete. Tall P came to the SUV and attacked the appellant with a machete and a
    knife. When the machete fell, the appellant chased Tall P and slashed him with
    the machete seconds later. The appellants evidence was that as he was chasing
    Tall P, Tall P was holding a knife, and he believed that Tall P would attack
    him or his friends. He submitted that the events happened at a fast pace and in
    a stressful environment with little time for reflection.

[17]

The respondents position below was that, even
    accepting the appellants evidence at its highest, the acts he committed were
    not objectively reasonable in the circumstances. The respondent submitted that
    before he started chasing Tall P, the appellant had already successfully
    defended himself with the hammer. It was not necessary, in the objective sense,
    for the appellant to then pick up the machete, chase after Tall P, and slash
    him.

(5)

The Trial Judges Ruling on Self-Defence and
    Defence of Others

[18]

After conducting a thorough review of the
    evidence adduced at trial, including the video surveillance footage, the trial
    judge set out the relevant evidence. Notably, she made a number of factual
    conclusions including that: (1) at the point where Tall P was on the cell phone,
    there were no indications of aggressive movements towards the appellant or
    towards anyone; (2) the fight between Tall P and the appellant at the SUV was
    almost consensual; and (3) following this fight, when the appellant chased
    Tall P north towards Africa House, the threat was over.

[19]

The trial judge concluded that the appellants
    conduct was not objectively reasonable in the circumstances. In her view, the appellant
    had no reason to hit Tall P with the machete. The appellant was chasing Tall
    P, who was trying to escape, and who did not engage the appellant.

[20]

Though cognizant that the threshold at this
    stage of the analysis is low, given these conclusions, the trial judge ruled
    that there was no air of reality to the defences of self-defence or to the
    defence of others and dismissed the application.

C.

Issue and Applicable Law

[21]

The sole issue for this panel to decide is
    whether the trial judge erred in finding that there was no air of reality to
    the defences of self-defence and defence of others.

[22]

A defence should be put to the jury if, and only
    if, there is an air of reality to that defence:
R. v. Cinous
, 2002 SCC
    29, [2002] 2 S.C.R. 3, at para. 51. A trial judges failure to put a defence to
    the jury for which there is an air of reality is therefore an error of law.

[23]

A defence has an air of reality if, and only if,
    a properly instructed jury, acting reasonably, could acquit the accused on the
    basis of the defence:
Cinous
, at para. 92. This inquiry requires a
    consideration of the totality of the evidence, assuming the evidence relied
    upon by the accused to be true:
Cinous
, at para. 53.

[24]

In the case of self-defence and the defence of
    others, the success of each defence turns on three requirements pursuant to s.
    34(1) of the
Criminal Code
, R.S.C. 1985, c. C-46: (a) the accused must
    believe on reasonable grounds that force or threat of force is being used
    against them or someone else; (b) the purpose for the act that constitutes the
    offence must be to protect oneself or others from that force or threat of force;
    and (c) the act committed must be reasonable in the circumstances. The first
    and last requirements blend objective and subjective considerations to
    determine what is reasonable in the circumstances, while the second requirement
    is subjective:
R. v. Khill
, 2020 ONCA 151, at paras. 54 and 57.

[25]

The ruling below turned on the third criterion,
    the reasonableness of the act. This criterion is evaluated in reference to a
    non-exhaustive list of factors at s. 34(2), with the trier of fact having wide
    discretion to determine how such factors are to be weighed and assessed:
Khill
,
    at paras. 62-63. In making this assessment, the trier of fact must be mindful
    that people using defensive force in stressful and dangerous situations are not
    expected to weigh their responses to a nicety:
R. v. Cunha
, 2016 ONCA
    491, 337 C.C.C. (3d) 7, at para. 7;
R. v. R.S.
, 2019 ONCA 832, at
    para. 36.

D.

Analysis

(1)

Observations
    on the Standard of Review

[26]

I begin with a brief comment on the proper
    standard of review. The appellant directs us to authority for the proposition that
    the question of whether a defence has an air of reality is a question of law
    reviewable on a correctness standard:
R. v. Budhoo
, 2015 ONCA 912, 343
    O.A.C. 269, at para. 40. The respondent directs us to authority for the
    proposition that the trial judges decision to leave a defence with a jury is
    entitled to some deference on appeal:
R. v. Dupe
, 2016 ONCA 653, 340
    C.C.C. (3d) 508, at para. 79. I accept both propositions as binding on me.

[27]

These principles are not obviously reconciled. As
    Paciocco J.A. recently observed in
R. v. Land
, this has resulted in the
    standard of review on appeal in these cases being afflicted by some complexity:
    2019 ONCA 39, 145 O.R. (3d) 29, at para. 71.

[28]

Reviewing a trial judges proper role in this
    exercise can assist in navigating this complexity. In some instances, there
    will be evidence that, if believed, would establish an element of a defence:
Cinous
,
    at para. 88. For example, an accused may testify and give direct evidence as to
    the existence of a subjective element of a defence. The trial judge, when faced
    with this direct evidence, must then find that there is an air of reality to that
    element. Since the trial judge must attribute an air of reality to an element
    supported by direct evidence in the record, we logically do not owe deference
    to this determination.

[29]

In other cases, there will be no direct evidence
    going to a particular element. I note, for example, there can be no direct
    evidence as to the reasonableness of the act in self-defence:
Cinous
,
    at para. 89. In this case, the trial judge must engage in a limited weighing
    of the evidence to determine whether the element can be reasonably inferred:
Cinous
,
    at para. 91. In so doing, she must not draw determinative factual inferences, nor
    make credibility assessments:
R. v. Pappas
, 2013 SCC 56, [2013] 3
    S.C.R. 452, at para. 22. The limited weighing is only for the relatively narrow
    purpose of deciding whether there is evidence upon which the trier of fact
    could reasonably conclude that the element has not been disproved beyond a
    reasonable doubt.

[30]

The deference owed when reviewing this limited
    weighing is necessarily less than that owed to a trial judges findings of fact.
    Some of the reasons for generally deferring to trial judges on their weighing
    of the evidence  namely their ability to assess credibility of live witnesses and
    their expertise in making findings of fact  are not relevant to a limited
    weighing: see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235,
    at paras. 15-18. Nevertheless, I recognize that the trial judge has the privilege
    of extensive exposure and immersion in the entire trial record.

[31]

In any event, in this case, as in
Land
,
    the trial judges errors obviate the need for any deference: at para. 71.

(2)

The Trial Judge Erred in Her Approach to the Air
    of Reality Test

[32]

In this case, the trial judge erred in her
    application of the air of reality test by making a number of findings that went
    to the heart of the factual controversies between the parties. Accordingly, her
    conclusion that there was no air of reality to the plea of self-defence and
    defence of others does not warrant deference from this court.

[33]

After reviewing the evidence adduced at trial, instead
    of determining whether a reasonable trier of fact could accept either of the
    defences, the trial judge undertook her own assessment of the events. For
    example, she concluded that the altercation between Tall P and the appellant by
    the SUV was almost consensual. She also concluded that at the time Tall P
    began to run away from the appellant, the threat was over, and found further
    that the appellant had no reason to use a machete to chop Tall P.

[34]

The first of these conclusions contradicted the
    appellants version of events. It was the appellants evidence that he was
    sitting in the SUV when Tall P ran at him holding a machete and knife.
    According to the appellant, Tall P swung his weapons at him before he picked up
    a sledgehammer to defend himself. The appellants evidence was that when he
    chased Tall P, he was afraid because two people had attacked him, and he did not
    know if someone else was behind him. The appellant did not describe a
    consensual fight. Given that the trial judges finding that the fight was
    almost consensual is contradicted by the appellants evidence, the trial
    judge must necessarily have considered the appellants credibility, which she
    was not permitted to do. This finding cannot be found to have been reasonable:
Pappas
,
    at para. 53.

[35]

Further, there is evidence inconsistent with the
    trial judges finding that the threat was over at this point. Events happened
    quickly. Tall P had pursued Paul to his car and attacked him with weapons. Gatto
    had just been stabbed. There was evidence that Tall P still had a knife in his
    hand as he ran north after dropping the machete. There was evidence that Tall P
    had asked others to come and link him, in other words, to back him up, and
    there were a number of people moving about at the time. Video surveillance
    evidence shows that the appellant was followed when he ran after Tall P. By
    finding that the threat was over in the face of evidence that it was not, the
    trial judge exceeded her gatekeeping role.

[36]

The trial judges findings may have been
    findings which a trier of fact could have arrived at on this record. But this
    was not the trial judges task on the self-defence application:
Cinous
,
    at para. 54. These conclusions indicate that the trial judge did not restrict
    her role to that of limited weighing. This gives rise to the danger that her
    conclusion was based on these findings of fact, rather than an evidentiary
    assessment. Usurping the fact-finding function in this way is an error of law:
Budhoo
,
    at para. 49.

[37]

I note that this error is further evidenced by
    the wording of the trial judges conclusion on this point. She concluded that
    the appellants conduct was not reasonable in the circumstances. This was a
    conclusion for the jury to reach. The trial judges task was to ask whether a
jury
could reasonably reach this conclusion:
Cinous
, at para. 92. A simple
    misstatement does not positively establish a reviewable error. However, when
    read in context with the incorrectly made findings of fact, the trial judges
    misstatement indicates that she went beyond the scope of her role and usurped
    the jurys function.

[38]

Given that the trial judge erred in her
    application of the test, no deference is owed to the decision below. I must now
    consider whether there is an air of reality to self-defence and defence of
    others on this record.

(3)

There is an Air of Reality to Self-defence and
    Defence of Others

[39]

I conclude that there is an air of reality to
    the defences of self-defence and defence of others in relation to the machete
    chop of Tall P. As the foregoing discussion reveals, there is evidence on which
    a jury could reasonably find that each of the three criteria of self-defence and
    defence of others were not disproven beyond a reasonable doubt.

[40]

On the first criterion, a jury could reasonably
    conclude that the accused believed on reasonable grounds that force or threat
    of force was being used against him or someone else. The appellants evidence was
    that as he approached Tall P at the door to Africa House, Tall P turned around
    to face him, holding a knife. Further, while the subject act is the machete
    strike that occurred at the entrance to Africa House, I note that it would be
    open to the jury to find that this was one among a longer chain of violent
    events that occurred between Tall P, the appellant, and others. The jury could
    reasonably have considered this broader context. In particular, it was the
    appellants evidence that Tall P had threatened to stab him, and that Tall P
    attacked him with a machete as he was sitting in the SUV after hearing Gatto say
    that he had been stabbed.

[41]

On the second criterion, there is no real
    dispute that a jury could reasonably conclude that the subjective purpose of the
    act was for the appellant to protect himself or others. The appellant gave
    direct evidence to this effect. He testified that he heard Gatto yell that he
    had been stabbed just before Tall P approached him with the machete. He also testified
    that he was scared that there was someone else behind him as he was running
    after Tall P. He said that when Tall P turned around at the door of Africa
    House he was scared that Tall P would rush him with a knife. There is
    accordingly direct evidence which, if accepted, would establish this criterion.

[42]

The third criterion concerns the reasonableness
    of the act. As with the first criterion, I am mindful that there is evidence
    that the subject act occurred as part of a series of altercations between the
    appellant, Tall P, and others. I am also mindful that in assessing the
    objective reasonableness of the appellants conduct the jury must not weigh his
    response to a nicety:
Cunha
, at para. 7. Further, s. 34(2) of the
Criminal Code
makes clear that this is an inherently contextual
    exercise:
Khill
, at para. 60.

[43]

It may be open to the jury to conclude, as the
    trial judge did, that the altercation between Tall P and the appellant at the
    SUV was almost consensual. However, it would also be open to the jury to
    conclude, based on the appellants evidence, that Tall P was the aggressor in
    this altercation. Similarly, the jury could conclude that, after the appellant
    picked up the machete and Tall P started running away, the threat was over, as
    the trial judge would have found. Yet, the jury could also conclude that the
    threat was not over, but that the appellant and his friends continued to be in danger
    such that his subsequent actions were reasonable in the circumstances. Without
    commenting on the likelihood that a jury would reach this conclusion, it is a
    conclusion that would be open to the jury on this record.

[44]

Thus, the jury could reasonably have acquitted
    the appellant of all charges in reliance on the defences of self-defence and
    defence of others. The defences should have been put to the jury.

E.

Conclusion

[45]

For these reasons, I would allow the appeal, set
    aside the convictions, and order a new trial on the charges of aggravated
    assault, assault with a weapon, and possession of a weapon for a dangerous
    purpose.

Released: April 17, 2020

LR

A. Harvison Young J.A.

I agree L.B. Roberts J.A.

I agree David M. Paciocco J.A.