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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.

6.

(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

7.

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

8.

(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. M.B., 2018 ONCA 399

DATE: 20180424

DOCKET: C62961

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Nancy Dennison, for the respondent

Heard and released orally: April 19, 2018

On appeal from the judgment of Justice T. Bielby of the
    Superior Court of Justice, sitting without a jury, dated October 18, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from his
    conviction for sexual assault.

[2]

The appellant submits that the trial judge erred in his credibility
    analysis of the complainants evidence. In particular, the appellant takes
    issue with the trial judges explanation for the major inconsistency in the
    complainants description of her position when she woke up to the assault: on
    one version, she woke up on her back; on the other version, she woke up on her
    stomach and was turned over.

[3]

The appellant advances two arguments. First, the trial judge
    impermissibly relied on the scientific concept of memory fragmentation caused
    by alcohol consumption without the support of expert evidence. Second, it was
    unfair for the trial judge to make this finding without giving counsel an
    opportunity to address it.

[4]

We disagree.

[5]

The trial judge carefully reviewed the complainants evidence and was
    alive to its frailties. The trial judge accepted the complainants explanation
    for her poor memory and found that it did not affect her credibility in
    relation to her core memory of the sexual assault.

[6]

We do not read the trial judges use of the words memory fragmentation
    as a scientific term. Rather, he was summarizing the complainants own
    explanation for her inconsistent and sometimes incoherent memory of the
    relevant events, which she attributed to her excessive alcohol consumption.  It
     is no more than a finding, based on the evidence, that on both occasions when
    she described what happened, the complainant was unable to consistently access
    from her memory some of the details of what occurred on the night of the
    incident, because of her intoxication.

[7]

Because these findings were open to the trial judge and given that the
    effect of the complainants intoxication was a significant issue at trial,
    there was no unfairness.

[8]

The appellant submits further that the trial judge erred in failing to
    address the complainants refusal to provide her cellphone to the police to
    attempt to recover the deleted text messages that she said the appellant sent
    to her the day following the assault.

[9]

The complainant testified that the appellant sent her texts asking her
    not to say anything or tell anyone that he had raped her. When asked in
    cross-examination why she did not give her cellphone to the police, the
    complainant responded that she just didnt. During her re-examination, the
    complainant testified that she did not want to give her cellphone to the police
    because she understood the police would keep it for months.

[10]

We
    do not accept this submission.

[11]

First,
    we do not see this issue as a material problem that the trial judge was
    required to address. The trial judge dealt with the more important issue of the
    reason for the complainants deletion of the text messages, accepted her
    explanation of humiliation and embarrassment, and determined that the deletion
    did not affect her credibility. Moreover, there was no certainty that the
    police could have retrieved the text messages.

[12]

Accordingly, the appeal is dismissed.

K. Feldman J.A.

L.B. Roberts J.A.

G.T. Trotter 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. McDonald, 2018 ONCA 369

DATE: 20180416

DOCKET: C44874

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Arthur McDonald

Appellant

Erin Dann and Dan Stein, for the appellant

Amy Alyea, for the respondent

Heard: January 17, 2018

On appeal from the conviction entered on November 22,
    2000 and the sentence imposed on October 27, 2003, with reasons released on
    November 4, 2003 by Justice Bruce C. Hawkins of the Superior Court of Justice,
    sitting with a jury.

H.S. LaForme J.A.:

OVERVIEW

[1]

The appellant and the complainant met for the first time at the apartment of a mutual friend. The two departed around the same time and travelled in the appellant's car to his apartment. Sexual intercourse occurred, and then the appellant and complainant returned to the friend's apartment. The appellant said the complainant came with him willingly, and that the two engaged in "normal" consensual intercourse. The complainant said the appellant forced her to go with him and forced intercourse on her.

[2]

On November 22, 2000, a jury convicted the appellant of unlawful
    confinement, sexual assault causing bodily harm, and uttering a death threat.
    On November 4, 2003 - about three years later - after a lengthy hearing, the
    appellant was declared a dangerous offender and sentenced to an indeterminate
    period of incarceration.

[3]

The appellant subsequently filed a timely inmate appeal against both his
    conviction and sentence. In February 2006, his former counsel filed a
    solicitors Notice of Appeal and, in July 2007, transcripts from the trial and
    sentencing proceedings were filed.

[4]

On September 22, 2008, the appellants former counsel filed a notice of
    abandonment, and on October 3, 2008 his appeal was dismissed as abandoned.

[5]

On April 21, 2016, this court granted the appellants application to
    reopen his appeal against conviction and sentence. This court concluded that
    his former counsel had filed the notice of abandonment without clear
    instructions.

[6]

Finally, on January 17, 2018  approximately 17 years since his conviction
    and 14 years since he was sentenced  his appeal was heard. His appeal against
    conviction is without merit, but a new dangerous offender hearing is required
    because procedural fairness and the appearance of a fair trial were compromised
    during his sentence hearing.

[7]

Given that the disposition of this appeal is connected to the sentence
    only, it is unnecessary to recite the background facts in any great detail. To
    the extent they may be relevant to an issue; I will refer to them as part of
    the analysis.

ISSUES

[8]

The appellant appeals his conviction on the basis that the trial Crown
    made three misleading and inflammatory statements in his closing address to the
    jury that required correction by the trial judge. This involved what I will
    refer to as: (i) the lobby video; (ii) music in the apartment; and (iii) the
    complainants injuries.

[9]

Regarding the sentence appeal, the appellant submits that: (i) the trial
    judge declined to hear oral closing arguments during the dangerous offender
    hearing; and (ii) the reasons for the dangerous offender designation do not
    allow for appellate review.

ANALYSIS

(i)

The Conviction Appeal

[10]

Briefly,
    the three claims of misleading and inflammatory comments by Crown counsel in
    his closing address to the jury can be described as follows:

1.      The
    lobby video  involves Crown counsels comments that it appeared the appellant
    was taking the same pathway as the victim and following her, as the Crown
    simultaneously showed the lobby video of the victim leaving the building at
    4:51 a.m. and the appellant leaving at 4:53 a.m.

2.      Music
    in the apartment  here, in relation to the testimony of a witness that he
    heard someone shout to turn down the music; Crown counsel remarked this was
    strange since there is no suggestion music was playing.

3.      The
    complainants injuries  relates to Crown counsel characterizing as
    ridiculous the submission made by defence counsel for the first time in her
    closing that the victims injuries were self-inflicted.

[11]

We
    did not call upon the Crown to respond to the music in the apartment or the
    complainants injuries issues. The trial Crowns comments in both instances
    were neither improper nor unfair. They did not require further instruction to
    the jury. The inferences suggested by the trial Crown were open on the record.
    The remarks would not have invited any deviation from proper decision-making,
    did not denigrate the defence and, most importantly, did not deprive the
    appellant of a fair trial.

[12]

I
    see nothing inflammatory or improper about the trial Crowns submission
    regarding the path the appellant took from the apartment, shortly after the
    complainant took the same path, as shown by the lobby video. The trial Crown
    was properly suggesting an inference the jury could draw from the evidence.

[13]

The
    appellant was aware that it was the trial Crowns position that when he left
    the apartment he was going after the complainant and not simply leaving as he
    had testified. He had full opportunity to respond to this part of the Crowns
    case. The Crown is not required to put by way of cross-examination of the
    accused all of the arguments it proposes to make in closing.

[14]

Certainly,
    in light of the objection by the defence, the trial judge could have reminded
    the jury that it was the defence position that the video could not support the
    argument advanced by the trial Crown. His failure to do so, however, does not
    sufficiently taint the trial to warrant reversal.

[15]

When
    the impugned remarks of trial Crown counsel are evaluated in the context of the
    trial, the addresses of both counsel, and the trial judges response, it is
    clear that they did not cause a substantial wrong or miscarriage of justice.
    The conviction appeal should be dismissed.

(ii)

The Sentence Appeal

[16]

The
    appellant seeks a new dangerous offender hearing on the basis that: (i)
    procedural fairness required the trial judge to allow oral submissions at the
    conclusion of his dangerous offender hearing; and (ii) the sentencing judges
    reasons were insufficient.

(a)

Oral Submissions

[17]

On
    May 26, 2003 - two and a half years after the jury had returned its verdict
    the evidence at the dangerous offender hearing concluded. It is here that the
    appellant submits that his rights to procedural fairness were violated
.
He
    submits that,
by denying him the right to
    make oral submissions at the conclusion of the hearing,
the trial
    judge violated his right to a fair hearing under ss. 7 and 11(d) of the
Charter
,
    and his right to be present at his trial pursuant to s. 650(1) of the
Criminal
    Code
.

[18]

The
    Crown, on the other hand, takes the position that the trial judge did not in
    fact deny the appellant the right to make oral submissions, and that in any
    event, oral submissions were not indispensable to procedural fairness in this
    instance. It argues that it is not necessary for this court to order a new dangerous
    offender hearing, simply so that the appellant may sit through oral submissions
    fifteen years after his original hearing. If necessary, the
curative
    proviso
should be applied.

[19]

There
    are two crucial transcripts I set out below because of their importance to the
    analysis. The analysis will be broken down into two parts. First, I decide
    whether, in fact, the trial judge prohibited defence counsel from giving oral
    submissions. Second, I examine whether such a prohibition is fatal to the
    dangerous offender proceedings.

(1)

The Transcripts: Exchanges about Oral Submissions

[20]

The
    trial judge advised, on May 26, 2003, [s]ince the defence is not calling
    evidence, I will require written argument in this matter. Dates were canvassed
    and agreed upon. Counsel
[1]
 the record is unclear as to which counsel  asked, [n]ow, your Honour, were
    you anticipating this in lieu of argument or in addition to argument? The
    following exchange then took place:

THE COURT:
In lieu. I will mark it to be
    spoken to then, so that the offender could be brought back to be spoken to on
    the 31st of July, which is a Thursday.

So when I have all of those, if I feel that I can get further
    assistance by counsel I will do so, otherwise that completes this.

***

MR. RICHARDSON:
I apologize, but I was caught
    by surprise when you indicated that written argument would be made in lieu of
    oral argument.

In my submission, Mr. McDonald, who has been represented and
    required to be present for the hearing will not be present for a significant
    phase of the matter, and this is the argument portion.

In my respectful submission, Mr. McDonald, should and has a
    right indeed to hear the argument made by the Crown persuading or to attempt to
    persuade the court that he fits the legislation and ought to be designated as a
    dangerous offender and incarcerated. He should also hear the arguments put
    forward on his behalf by his counsel arguing that he should not be [so]
    designated.

The sentencing judge overruled the objection resulting
    in the following exchange:

MR. RICHARDSON:
Written argument only.

THE COURT:
(Inaudible)  making him aware of
    the argument, and Crown is to make available a copy, and if there is a problem
    he can be assisted by counsel. And the same with argument on behalf of his
    counsel. He receives copies and you can  so that is how you partake in written
    argument, by seeing the written argument and seeing the assistance of the
    counsel.

[21]

Mr.
    Richardson suggested there might be some difficulty with leaving the written
    submissions with the appellant and discussing them with him in the Metro
    Detention Centre. He added, [y]ou are aware that there is a SARS issue, and
    its difficult if not impossible to have a private interview with the client.
    This led to the following exchange:

THE COURT:
Lets not put the cart before the
    horse. Its worked out, if there is a difficulty at the time, but step one is
    to get the argument prepared and submitted.

MR. RISCHARDSON:
Yes. And I have absolutely no
     I hope I am not being misunderstood. I have no difficulty preparing the
    argument. I am not suggesting that we dont.

I just suggest that its made in full and in Mr. McDonalds
    presence. I am not saying that we should not prepare argument to assist the
    court. Thats not been suggested.

THE COURT:
Oral argument in full in the court
    would seem to me  would be satisfied by everyone standing there and reading
    out written argument.

[22]

This
    exchange, in my view, makes it obvious that defence counsel wanted to present
    oral argument, which the trial judge did not accept was required. Rather, the
    trial judge appears to be of the view that if the appellant merely saw the
    written argument, this would be sufficient. I will say more about this later.

[23]

Extensive
    written argument was prepared by the Crown and the defence, and was filed with
    the trial court sometime before July 31, 2003. On that date, the trial judge
    was not available, and the matter was adjourned to August 19
th
.
    Ultimately the trial judge received 110 pages in written submissions - 58 pages
    from the Crown, 52 pages from the defence.

[24]

The
    parties returned to court on August 19, 2013 for the matter to be spoken to. On
    this occasion, after being advised by the trial judge that he was not in a
    position to render judgment, the matter was adjourned to September 26. The following
    exchange also occurred:

MR. PILLA:
. I guess the only other thing
    before we break is there was some talk of enhancing any of the written
    submissions with oral submissions. I certainly have nothing to add. I just want
    to make sure that counsel for Mr. McDonald is in the same position. Or should
    we consider an interim date for that purpose or, I take it, Ive heard nothing
    so thats the state of things, I just want to confirm that before we adjourn.

MR. RICHARDSON:
Ill let Miss Peeris speak to
    that.

MS. PEERIS:
Yes. Your honour, Im the one who
    raised this on the last occasion. You recall that I requested that we make oral
    argument in front of the court, in front of my client, and Your Honour
    indicated at that time that you werent permitting it.

THE COURT:
That I was not?

MS. PEERIS:
Yes. That written submissions were
    to be in lieu of.

THE COURT:
If I change my mind and feel that
    it would be useful, Ill let you know.

[25]

It
    is not clear what Ms. Peeris is referring to when she says Im the one who raised
    this on the last occasion. Other than the May 26
th
transcript,
    there are no transcripts in the record where this was discussed. She may have
    been referring to the statement made by Mr. Richardson on May 26
th
.
    Or, there may well have been communications, perhaps out-of-court, about this.
    There is no way to know what those discussions were and we are left with the
    record filed.

(2)

Did the Trial Judge Prohibit Oral Submissions?

[26]

As
    I have already mentioned, it is clear to me from the transcript that on May 26,
    2003 defence counsel wanted the opportunity to present oral argument. The trial
    judge, on the other hand, did not accept that this was legally required.
    Indeed, he believed it would be enough if the client merely saw copies of the
    written argument. Moreover, he was not prepared to change his position because
    of logistical difficulties that may not even arise. In the end, he ordered
    written argument in lieu of oral argument.

[27]

In
    my opinion, the trial judges intention from the outset was to receive only
    written submissions from the parties. After discussing scheduling for the
    written submissions the trial judge said, [s]o when I have all of those, if I
    feel that I can get further assistance by counsel I will do so, otherwise that
    completes this. He is advising counsel how it is going to be and that
if
    he wants
further assistance he may revisit the issue of written
    submissions only.

[28]

Defence
    counsel raised the right to oral submissions and made it clear that he was open
    to alternative ways of combining written and oral argument. The trial judge
    disagreed that oral argument was required. To repeat, his view was that showing
    a copy of the written argument to the appellant would be sufficient: He
    receives copies and you can - so that is how you partake in written argument,
    by seeing the written argument and seeing the assistance of counsel.

[29]

Defence
    counsel raised the logistical challenges that could interfere with the
    appellants ability to even see the written argument. The trial judge noted
    that the logistical challenges may not materialize and if they did they could
    be raised then: lets not put the cart before the horse. I do not interpret
    this as the trial judge saying that he has changed his mind and is no longer
    ordering final argument to be in writing only.

[30]

Defence
    counsel advised that he has no objection to preparing written argument, but I
    just suggest that its made in full and in Mr. McDonalds presence. In the
    context of everything else the trial judge said, his next comment is, in my
    view, a dismissive response to counsels claim that written submissions alone
    are inadequate: Oral argument in full in the court would seem to me  would be
    satisfied by everyone standing there and reading out written argument. So.
    The trial judge is not suggesting that the parties proceed in this way; rather,
    he countered defence counsels claim with, [s]o that will be the timetable
    then, referring to written submissions.

[31]

In
    connection with the August 19, 2003 transcript, even if it could be said that
    the Crown believed oral submissions were open, the issue is not what the Crown
    believed; rather, it is what the trial judge ordered. The transcript is clear.
    The trial judge maintained his position that there would be no oral
    submissions.

[32]

Specifically,
    in connection with oral submissions, Ms. Peeris noted to the trial judge, you
    werent permitting it, which implies that permission was sought, probably on
    May 26
th
, but denied. Clearly, the defence was not abandoning its
    request to have an opportunity to make oral submissions. After the trial judge
    questioned Ms. Peeris statement  That I was not?  this exchange occurs:

Ms. Peeris:
Yes. That written submissions were
    to be in lieu of.

The Court:
If I change my mind and feel that
    it would be useful, Ill let you know.

[33]

The
    trial judges reference to change my mind affirmed that defence counsel was
    right in describing his position; that written submissions were to be in lieu
    of oral submissions. His response demonstrates that he was aware that the defence
    continued to want oral submissions. Whether Ms. Peeris reference to having
    raised this issue is to the May 26
th
appearance or another
    appearance is of no moment. The meaning of this exchange on August 19
th
does not change; the trial judge responded to a reminder that he would not
    permit oral submissions by saying that if he changes his mind he would let
    counsel know.

[34]

I
    am of the firm conclusion that the appellant has met his burden of showing that
    he was denied the right to make oral submissions at the close of his dangerous
    offender hearing. That failure on the part of the trial judge constitutes a
    breach of fundamental due process which is fatal to the dangerous offender
    proceedings. I reach this conclusion for the following reasons.

(b)

Was it Fatal to Prohibit Oral Submissions?

[35]

Part
    XXIV of the
Criminal Code
sets out the provisions dealing with
    dangerous offenders and long term offenders. Section 758(1) mandates the
    procedural right of an offender to be present at his or her dangerous offender
    application. Section 758 is a replication of s. 650(1), which provides similar
    rights to be present at trial.

[36]

Although
    nothing in Part XXIV or s. 650 specifies that the offender has a right to make
    oral submissions the appellant claims that his rights to a fair hearing and to
    be present at his trial were violated. He says the principles of fundamental
    justice required an oral hearing that included the opportunity to make final
    submissions in person. I agree with the appellant.

(1)     Fundamental
    Justice

[37]

Fundamental
    justice in Canadian law is the fairness underlying the administration of
    justice and its operation. The principles of fundamental justice are specific
    legal principles that command "significant societal consensus" as
    "fundamental to the way in which the legal system ought fairly to
    operate":
R. v. Malmo-Levine; R. v. Caine
, 2003 SCC 74, [2003] 3
    S.C.R. 571, at para. 113. The more a person's rights or interests are adversely
    affected, the more procedural or substantive protections must be afforded to
    that person in order to respect the principles of fundamental justice: see
Charkaoui
    v. Canada (Citizenship and Immigration)
, 2007 SCC 9, [2007] 1 S.C.R. 350,
    at para. 25.

[38]

Procedural
    fairness speaks to the principle that persons affected by the proceedings
    should have the opportunity: (i) to present their case fully and fairly, and
    (ii) have any decision affecting their rights, interests, or privileges made
    using a fair, impartial and open process: see
Baker v. Canada (Minister of
    Citizenship & Immigration)
, [1999] 2 S.C.R. 817, at pp. 837-841. As
    the Supreme Court emphasized in
Suresh v Canada (Minister of Citizenship
    and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, at para. 118, [t]he
    greater the effect on the life of the individual by the decision, the greater the
    need for procedural protections to meet the common law duty of fairness and the
    requirements of fundamental justice under
s. 7
of the
Charter
.

[39]

The
    greater procedural protections just referenced can include the right to an oral
    hearing, where questions can be answered and submissions made in open court, with
    an opportunity for those affected by the decision to put forward their views
    and evidence fully and have them considered by the decision-maker:
Baker
at
    p. 837. In
Singh v. Canada (Minister of Employment and Immigration),
[1985]
    1 S.C.R. 177,

at para. 58, Wilson J. commented that where physical
    liberty is at stake it would seem on the surface at least that these are
    matters of such fundamental importance that procedural fairness would
    invariably require an oral hearing. This view  that where the stakes are
    serious enough an opportunity for oral submissions must be given  is in
    keeping with recognition that there are cases where the demands of natural
    justice can require an oral hearing: see
Baker
;
Re Spalding
,
    (1955) 16 W.W.R. 157 at 169;
Joly v. Canada (Attorney General)
, 2014
    FC 1253, 471 F.T.R. 190;
Patchett v. Law Society of British Columbia
,
    [1979] B.C.J. No. 1097.

[40]

The
Criminal Code
provisions regarding dangerous offenders authorize the
    most extreme and clearest form of preventive sentence that can be imposed on an
    offender in Canada. They permit the imposition of indeterminate detention in
    order to protect the public from persistent criminals with a propensity for
    committing violent crimes against the person: see
R. v. Boutilier
,
    2017 SCC 64, 42 C.R. (7th) 251, at para. 3.

[41]

The
    indeterminate sentence allows for control of offenders found to be dangerous
    for the rest of their lives. This is a significant deprivation of liberty. As such,
    procedural fairness must be jealously guarded and strictly enforced in this
    context. Subject to the right of the parties to agree otherwise, the closing
    arguments must therefore include oral submissions, held in open court, in the
    presence of the accused, counsel, the trial judge and the court reporter.

(2)     Section
    650 of the Criminal Code

[42]

Section
    650 of the
Criminal Code
gives the appellant the right to be present
    in court during the whole of his trial subject to exceptions that do not apply
    in this case. Closing arguments are part of an accused's trial, and thus are
    subject to the requirement that the accused be present. This right gives effect
    to the principle of fairness and openness that are fundamental values in our
    criminal justice system. Presence gives the offender the opportunity of
    acquiring first-hand knowledge of the proceedings leading to the eventual
    result. The denial of that opportunity may well leave the offender with a
    justifiable sense of injustice, which is the implicit and overriding principle
    underlying the right to be present: see
R. v. Hertrich
(1982),
67 CCC (2d) 510, at para. 81
.

[43]

It
    is true that we can infer from the record that all counsel were satisfied with
    the contents of the written arguments filed. Furthermore, with the evidence
    complete, the content of the written argument could not have affected the
    conduct of the appellants defence. Indeed, it could be argued that oral
    submissions of the appellant would have had no meaningful impact on the written
    submissions made by his counsel.

[44]

Nevertheless,
    the appellant's prohibition from the opportunity to make oral arguments at the
    close of his dangerous offender hearing limited the appellants right to be
    present when the arguments were received by the trial judge. This fouled the
    appearance of fairness, compromised the transparency of the proceedings, and
    was at odds with the open court principle. This amounted to a miscarriage of
    justice. A review of written submissions in jail with his counsel through a
    plexi-glass barrier was no substitute for being present during oral argument.

[45]

In
    holding that counsel for the appellant was entitled to make oral submissions in
    the presence of the appellant, I do not suggest that the trial judge could not
    require written submissions as a first step in the argument process.  It is now
    common practice in the criminal courts to require written submissions, not only
    at the end of the evidence in judge alone cases, but also in respect of various
    evidentiary motions, or pre-charge discussions held before or during trial.  In
    those cases, written argument is used, not in lieu of oral argument, but in
    addition to and usually as a precursor to oral argument.

[46]

If
    a trial judge requires written argument as a first step in the argument
    process, the trial judge must allow counsel, after a written argument has been
    exchanged, to make oral arguments in the presence of the accused to supplement,
    correct, or otherwise amplify the written argument.  The trial judge, of
    course, controls oral argument as he does other facets of the trial.  The right
    to make oral submissions is not the right to repeat what has already been said
    in written or oral submissions, or to otherwise waste valuable court time. Counsel
    may, of course, agree to waive oral argument either entirely or as a supplement
    to written argument.

[47]

In
    the normal course, when a trial judge requires written submissions and allows
    counsel the opportunity to make additional oral submissions in the presence of
    the accused, procedural fairness requirements and the accuseds right to be
    present throughout his trial will be satisfied by the combination of written
    and oral argument.  The trial judge is entitled to assume that counsel has
    taken the steps necessary to ensure that the accused, to the extent that he or
    she wishes to do so, has had the opportunity to review the submissions with
    counsel and participate in the formulation of defence submissions.

[48]

Circumstances
    may arise, however, in which the accused does not have the opportunity to
    review written submissions with counsel and participate in the preparation of
    oral submissions.  When counsel for an accused brings those circumstances to
    the attention of the trial judge, the trial judge must take the appropriate
    procedural steps to ensure procedural fairness and to protect the accuseds
    right to be present at trial.  In some cases, it may even be necessary to
    require that the submissions be made orally and without regard to any prior
    written submissions that were filed.

[49]

The
    trial judge has discretion to decide how best to address the kinds of problems
    referred to above. This discretion, however, must be exercised in a manner that
    protects the fairness of the proceeding. Experience indicates that in the vast
    majority of cases there will be no problems.  Written argument coupled with the
    opportunity to make additional oral submissions after written argument has been
    exchanged and filed will suffice.

(3)     The
    Curative Proviso

[50]

The
    Crown takes the alternative position that the appellant was not actually
    prejudiced in the sense that no substantial harm or miscarriage of justice was
    occasioned, and that any error was harmless. Sections 686(1)(b)(iii) and (iv)
    of the
Criminal Code
provide:

(iii) notwithstanding that the court is of the
    opinion that on any ground mentioned in subparagraph (a)(ii)
[2]
the appeal might be decided in favour of the appellant, it is of the opinion
    that no substantial wrong or miscarriage of justice has occurred, or

(iv) notwithstanding any procedural irregularity at
    trial, the trial court had jurisdiction over the class of offence of which the
    appellant was convicted and the court of appeal is of the opinion that the
    appellant suffered no prejudice thereby

[51]

Justice
    Trotter, when he was a trial judge, properly noted in
R. v. Kankis
,
    2012 ONSC 378, 281 C.C.C. (3d) 113, at para. 37 that factors such as the
    appearance of fairness are engaged when considering whether there was a
    miscarriage of justice within the meaning of s. 686(1). As he observed,
    this court has held on numerous occasions that a miscarriage of justice need
    not always be supported by the demonstration of actual prejudice to an
    appellant; sometimes, public confidence in the administration of justice is
    just as shaken by the appearance as by the fact of an unfair proceeding: see
    also
R. v. Cameron
(1991), 2 O.R. (3d) 633, at p. 639;
R. v.
    Morrissey
(1995), 22 O.R. (3d) 514, at pp. 541-542.

[52]

The
    term "prejudice" in s. 686(1)(b)(iv) refers not only to prejudice to
    an individual accused's ability to properly defend her or himself and to
    receive a fair trial, but also to prejudice in the broader sense of prejudice
    to the appearance of the due administration of justice: see
R. v.
    Kakegamic
, 2010 ONCA 903, 265 C.C.C. (3d) 420, at para. 36;
R. v.
    F.E.E.
, 2011 ONCA 783, 108 O.R. (3d) 337, at para. 33.

[53]

A
    breach of s. 650(1) by exclusion of an accused from a part of his or her trial
    is a procedural irregularity to which s. 686(1)(b)(iv) can apply. However,
    unless there are exceptional circumstances, s. 686(1)(b)(iv) will not save a
    breach of s. 650(1) caused by the absence of the accused during closing
    arguments at the conclusion of dangerous offender proceedings. This is
    precisely what occurs when exclusively written argument is ordered by the trial
    judge and an opportunity to provide oral argument by the offender is denied.
    Such circumstances impair the appearance of fairness, compromise the
    transparency of the trial proceedings and are at odds with the open court
    principle: see
F.E.E.
, at paras. 50-52.

[54]

Closing
    argument to a trial judge in dangerous offender proceedings is of the utmost
    importance to the person whose liberty - perhaps permanently - is at stake.
    Those arguments explain the basis upon which the offenders designation will be
    decided and his or her period of incarceration will be assessed. The exclusion
    of an offender from the hearing of closing arguments, where his or her
    opportunity to make oral submissions is denied, undermines both the appearance
    and the reality of the due administration of justice.

[55]

For
    these reasons, the appearance of fairness at the appellants dangerous offender
    hearing was seriously undermined by his prohibition from making oral
    submissions during closing argument. Accordingly, I would allow this ground of
    appeal.

(c)

Adequacy of Reasons

[56]

When
    evaluated in the context of the record as a whole, the reasons for sentence are
    adequate. While brief and somewhat conclusory, this was a single-issue case
    turning on the manageability of the appellant in a non-custodial context. The
    evidence was strongly against the appellant.

[57]

The
    reasons sufficiently inform the appellant why the trial judge found that there
    was no reasonable possibility of eventual control of the appellants risk in
    the community such as would warrant a long term offender finding. The reasons
    also demonstrate consideration of the then recent Supreme Court of Canada
    decision in
R. v. Johnson,
2003 SCC 46, [2003] 2 S.C.R. 357. And
    finally, the reasons are sufficient to allow for appellate review.

[58]

I
    would dismiss this ground of appeal.

DISPOSITION

[59]

For the reasons given, I would dismiss the appeal
    against conviction. I would allow the appeal against sentence and quash the
    order declaring the appellant a dangerous offender as well as the indeterminate
    sentence. I would order a new dangerous offender hearing.

Released: DD APR 16 2018

H.S. LaForme J.A.

I agree. Doherty
    J.A.

I agree. David M.
    Paciocco J.A.

[1]

Trial Crown counsel was Mr. A. Pilla; defence counsel was Mr.
    R. Richardson and Ms. S. Peeris.

[2]
That section provides:
(ii)
the judgment of the trial court
    should be set aside on the ground of a wrong decision on a question of law


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mendez, 2018 ONCA 354

DATE: 20180411

DOCKET: C60732 & C60731

Hoy A.C.J.O. and Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Mendez and Shamaree Wilson

Appellants

Lance Beechener, Zachary Kerbel and Saman
    Wickramasinghe, for the appellants

Susan Magotiaux, for the respondent

Heard: February 14, 2018

On appeal from the conviction entered on November 10, 2013
    by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with
    a jury.

Pardu J.A.:

[1]

The appellants, Jordan Mendez and Shamaree
    Wilson, were convicted of the first degree murder of Joel Waldron.

[2]

Joel Waldron was shot outside his home on
    February 26, 2011. He came outside just after receiving three calls, in brief
    succession, from a telephone number which could not be linked to either
    appellant or any other person. The last call was at 10:46 p.m. There was
    evidence at trial from which a jury could conclude the following:

1.

The appellants were together at a baby shower nearby.

2.

They moved together quickly on foot to the area
    of the victims home, leaving the baby shower at about 10:47 p.m. (At 10:47:50
    p.m., a video camera captured two figures running from the general vicinity of
    the baby shower towards the general vicinity of the victims home.)

3.

One of the appellants shot the victim three
    times, in the back of the head and in the back, very shortly after the victim
    left his house.

4.

The non-shooter was somewhere in the area of the
    shooting.

5.

They both fled the area where the shooting took
    place by foot. At 10:51:55, a video camera captured two figures running from
    the general area of the victims home. At 10:55 p.m., the appellants arrived
    unexpectedly at the home of a former girlfriend of one of the men. The two had
    not been in contact for several years.

6.

Both changed some of their clothing while there.

7.

Wilson lied to police and said he and Mendez had
    been at the friends house since well before the shooting.

8.

The murder weapon was found in a recycling bin
    outside the friends home.

[3]

The Crown could not prove which of the
    appellants was the shooter, but argued that Waldron was lured out of his home
    by the phone calls and was ambushed, and both were guilty of first degree
    murder: one as the shooter and the other as an aider or abettor. Although the
    evidence reasonably established that the non-shooter was nearby at the time of
    the shooting, there was no direct evidence of a particular role, if any, he
    played in the killing. The Crowns position was that he was present in order to
    assist if required, and that by his presence he lent force to and encouraged the
    attack. The shooter, the Crown argued, intended to kill the victim, the
    non-shooter was in on the plan and shared the intent to kill and both the
    shooter and the non-shooter were guilty of first degree murder. It was common
    ground on appeal that the shooter had committed a murder.

[4]

Because the Crown could not prove which role, if
    any, each of the appellants played, both appellants had to be acquitted unless
    the Crown could prove that the non-shooter aided or abetted the killing.

[5]

The appellants advance multiple grounds of
    appeal. I agree that the charge to the jury did not relate the evidence to the
    issues of planning and deliberation in a balanced way. Because the trial judge
    also failed to relate the evidence to the necessary elements of aiding and
    abetting for either first or second degree murder, a verdict of second degree
    murder cannot be substituted for the verdict of first degree murder and a new
    trial is required. I do not agree that the verdict should be set aside as
    unreasonable and an acquittal substituted.

Instructions on planned and deliberate murder

[6]

After correctly describing the elements of
    planning and deliberation, the trial judge instructed the jury as follows:

It is up to you to say whether the murder of
    Joel Waldron was both planned and deliberate. To decide this issue, you should
    consider all the evidence. Among the things you should consider is the
    following:

1)

The evidence that Joel Waldron received two phone calls shortly
    before he left his house;

2)

The timing of the figures running across Neilson Avenue that I have
    already mentioned to you;

3)

The evidence that would support the inference that Mr. Wilson
acted
    jointly
with Mr. Mendez to kill Mr. Waldron. This would include the
    evidence of their movements from the baby shower to Mr. Waldrons house and the
    video of the two figures running as well as the evidence of their movements
    together after the shooting;

4)

The distance between the baby shower and the Waldron house;

5)

The evidence of Chrysta Dixon that Mr. Wilson and Mr. Mendez were
    together at the baby shower, although she did not know if they arrived or left
    together and did not know what time they left;

6)

The evidence that Mr. Wilson and Mr. Mendez were together after the
    shooting. [Emphasis added.]

[7]

This relation of evidence to the issues was
    factually unbalanced because  it largely listed items that favoured the Crown
    theory and  because the trial judge did not deal with evidence tending to raise
    doubts about an intention to aid or abet a planned and deliberate murder, such
    as the following:

1.

The appellants both knew the deceased, and there
    was no evidence of any ill feeling between them. There was evidence they had
    been friends.

2.

There was no evidence that the telephone calls
    the deceased received from an unidentified number were associated with either
    of the two appellants.

3.

There was no evidence of anything said by either
    appellant before they left the baby shower that would indicate the shooter was
    armed or intended to kill.

4.

There was no evidence of any act on the part of
    the non-shooter, other than his presence in the general area, to show that he
    did something to assist the shooter.

5.

The short lapse of time between the appellants departure
    from the baby shower to the time of the shooting, less than 4 minutes, could
    undermine the Crown suggestion that the non-shooter knew of the shooters
    intentions and intended to aid or abet a planned and deliberate murder. While
    some mutual object could be inferred from their departure from the baby shower
    together, the non-shooter may not have known of the shooters plan to kill.

6.

The disposal of the gun by one of the appellants
    in a place where it was likely to be found, and the unexpected arrival on the
    doorstep of a friend whom Wilson had not been in contact with for some time also
    suggest disorganization and a lack of planning and deliberation.

[8]

This jury was not equipped with the tools to
    decide this case because of the trial judges failure to relate the evidence to
    the necessary elements of aiding and abetting. The trial judge told the jury it
    could convict both the appellants on the ground that they were acting jointly. As
    I have said, she did not relate the evidence to the necessary elements of
    aiding and abetting, although, as the Crown agrees, conviction of both
    appellants of second degree murder or planned and deliberate first degree
    murder rested on a conclusion that the non-shooter did some act that helped or encouraged
    the shooter to kill, and did so knowingly with the intention of helping the
    shooter commit either murder or planned and deliberate murder: see
R.
    v. Almarales
,
2008 ONCA 692
,
237
    C.C.C. (3d) 148
.

[9]

The trial judge told the jury that it could consider
    the appellants conduct after the shooting to determine whether they were
acting jointly or in concert
before or
    during the shooting. She defined active participation in the killing as either
    shooting or doing something for the purpose of aiding or abetting the killing. Rather
    than focusing the jurys attention on the issue of whether the Crown had proven
    the elements of aiding or abetting in relation to the non-shooter, she invited
    the jury to consider whether the killing itself was planned and deliberate and whether
    either individual accused participated in the killing by
acting jointly
with the shooter. While
    the instructions elsewhere in the charge correctly set out the elements of
    aiding and abetting, the instructions had the functional effect of telling the
    jury that if the shooting was planned and deliberate, and if the parties acted
    jointly, both were guilty of planned and deliberate murder. This obscured the
    need to find proof of the elements of aiding or abetting, the act of assistance
    or encouragement, and the intention to assist or encourage a second degree
    murder or a planned and deliberate first degree murder.

[10]

It is common ground that there was one shooter. In
R. v. Pickton
,
[2010] 2 S.C.R. 198, at
    para. 71,
the Supreme Court of Canada indicated that where one
    person holds the gun and pulls the trigger, the non-shooters potential
    liability had to flow, not through co-principal liability, but through aiding
    and abetting.

[11]

At para. 67 of the same decision
,
the Supreme Court observed:

Where the cause
    of death could clearly only have been inflicted on the victim by one person,
    however, and there is no evidence of any other force being applied to the
    victim prior to death, then absent any other evidence, likely the only logical
    inference is that there exists only a single principal offender. The principles
    of criminal causation demand such a conclusion, as there cannot be said to be
    any other significant contributing cause to the death. In that situation, the
    potential of co-principal liability is eliminated.

[12]

As noted in
Pickton
, at para. 69, phrases such as concerted action, acted in
    concert, common design, participation in a common scheme and joint
    participation are phrases which properly capture the entire gamut of principal
    liability, co-principal liability and liability as an aider or abettor.

[13]

The majority agreed that the trial judge in
Pickton
should have charged the jury on aiding and abetting, but dismissed
    the appeal because the evidence of the accuseds guilt was overwhelmingly
    strong:
Pickton
, at para. 10.

[14]

Here, the trial judges instruction inviting the
    jury to consider whether the non-shooter was an active participant in the
    killing without relating the evidence to the elements of aiding and abetting in
    a balanced way had the potential to mislead the jury. It is by no means obvious
    that the non-shooters presence in the general area where the shooting occurred
    amounted to assistance or encouragement or that the non-shooter intended to
    provide assistance or encouragement to the shooter by his presence.

[15]

In some circumstances, synchronous movements of
    two individuals may lead to inferences about their intentions and the nature of
    their participation in the commission of an offence: see
R. v.
    Carrington
,
2017 ONCA 2,
346 C.C.C. (3d) 223
. But, where
    conviction depends on aiding and abetting, the jurys attention must be focused
    on the necessary elements and the evidence must be related to those elements in
    a balanced way.

[16]

Here, the weaknesses in the prosecution case on
    aiding and abetting were highlighted by the Crowns submissions to the jury,

Theres also no evidence at the scene of the
    other person doing anything to aid or abet. But whats clear to you, ladies and
    gentlemen, is that person was there for that purpose if necessary. Thats why theyre
    going there. Theyre not an innocent bystander. This is a joint plan, a common
    enterprise.

[17]

The jury was not equipped to assess those
    weaknesses. The trial judge did not focus the jurys attention on the absence
    of evidence of acts to aid or abet the shooter or on the evidence that pointed
    away from the existence of a joint plan or common enterprise.

[18]

While trial counsel for the appellants did not
    object to the charge, this is not a conclusive factor. In the context of this circumstantial
    case, the trial judges failure to relate the evidence to planning and
    deliberation in a balanced way, paired with her failure to relate the evidence
    to the necessary elements of aiding and abetting, was significant. The
    imbalance arose at a time when the trial judge was inviting the jurors to apply
    a narrowed focus to the issue, and relating the evidence to that issue. While
    the omitted matters I have referred were mentioned as part of the narrative of
    the evidence at other points of the charge, when the trial judge expressly
    related the evidence to the issues, it was

factually unbalanced and was potentially
    misleading. It was crucial that this part of the charge be balanced because of
    the impact it would have had on the jurys focused consideration of the issues.

Unreasonable verdict

[19]

The appellants submit that convictions for first
    degree murder were unreasonable verdicts in this case.

[20]

A verdict is unreasonable if a properly
    instructed jury, acting judicially could not have come to that verdict:
R.
    v. Robinson
, 2017 ONCA 645,
352 C.C.C. (3d) 503,
    at para. 30. See also:
R. v. Biniaris
,
[2000]
    1 S.C.R. 381, at paras. 36-42.

[21]

As described in
R. v. H. (W.)
,
[2013] 2 S.C.R.180
, at paras. 27-28, an
    appellate court must give due weight to the advantage the jury had as trier of
    fact present throughout the trial, but on the other hand, must weigh the
    evidence through the lens of judicial experience:

The reviewing court must not act as a 13th
    juror or simply give effect to vague unease or lurking doubt based on its own
    review of the written record or find that a verdict is unreasonable simply
    because the reviewing court has a reasonable doubt based on its review of the
    record.

On the other
    hand, however, the review cannot be limited to assessing the sufficiency of the
    evidence. A positive answer to the question of whether there is some evidence
    which, if believed, supports the conviction does not exhaust the role of the
    reviewing court. Rather, the court is required to review, analyse and, within
    the limits of appellate disadvantage, weigh the evidence and consider through
    the lens of judicial experience, whether judicial fact-finding
precludes
the conclusion reached by the jury. Thus, in deciding whether the verdict is
    one which a properly instructed jury acting judicially could reasonably have
    rendered, the reviewing court must ask not only whether there is evidence in
    the record to support the verdict, but also whether the jurys conclusion
    conflicts with the bulk of judicial experience. [Citations omitted; emphasis in
    original.]

[22]

There were some risks here of an unreasonable
    verdict. The trial judge correctly told the jury that the conduct of the
    appellants after the shooting could not be used to differentiate between murder
    and manslaughter. The appellants flight and change of clothing, as well as Wilsons
    lie, were not inconsistent with an absence of an intention to aid or abet a
    murder, and could be consistent with some other explanation. This same conduct,
    in the circumstances of this case, while an essential part of the narrative,
    also had little probative value as to whether the non-shooter intended to aid
    or abet a planned and deliberate killing. In some circumstances, conduct after
    an event may be highly probative of planning and deliberation, as where for
    example, an accused comes to the scene of a killing armed with tools for
    disposal of a body, and uses those tools after the killing to in fact do so. Here,
    the flight and change of clothing and the lie after the event were not linked to
    behavior before the murder which would point to a direct logical inference of
    planning and deliberation. Judicial experience teaches that evidence of after
    the fact conduct is a special brand of circumstantial evidence that carries a
    heightened risk of misapplication and prejudice: D. M. Paciocco, Simply
    Complex Applying the Law of Post-Offence Conduct Evidence (2016) 63 C.L.Q.
    276. There is a risk that jurors might jump too quickly from after the fact
    conduct to guilt, particularly here, where the shooter is acknowledged to have
    committed a murder and the jury is invited to infer that the non-shooter by
    acting jointly with the shooter,  aided or abetted a planned and deliberate
    murder.

[23]

The appellants acknowledged to the trial judge
    however, in the course of the motion for a directed verdict of not guilty on
    first degree murder, that there was sufficient evidence to put second degree
    murder to the jury. This amounted to an acknowledgment that there was evidence
    from which a jury could conclude that the non-shooter did something with the
    intention of helping or encouraging the shooter to kill the victim. This
    concession is not conclusive, but is an important factor to be considered.

[24]

Here,  the question of what the non-shooter did
    and his purpose were central to both the question of whether the non-shooter
    aided a second degree murder or aided a planned and deliberate first degree
    murder. The synchronicity of movement towards the victims home, the immediacy
    of the killing after he emerged from his home, the unlikelihood of coincidence
    in the immediacy of the killing just after the phone calls and the continued
    synchronicity of movement following the killing taken together, provide a basis
    upon which this jury could have convicted both appellants, concluding that one
    was the shooter and the other aided or abetted the killing. Although this was a
    weak case on aiding and abetting, I cannot conclude that this was a verdict
    which no properly instructed jury could have reached, and I would not
    substitute a verdict of acquittal.

Remedy

[25]

The non-shooters actions and intentions were
    intertwined both with whether the non-shooter aided and abetted a first or a
    second degree murder. In light of the failure of the trial judge to relate the
    evidence to the necessary elements for aiding and abetting, as well as the
    trial judges failure to relate the evidence to planning and deliberation in a
    balanced way, the appropriate remedy for the deficiencies in the charge is to
    order a new trial.

[26]

The appellants raise other grounds of appeal, including
    arguments that the trial judge erred in instructing the jury that it could
    consider a statement made by a third party in the presence of a police officer and
    Wilson, while Wilson remained silent, as an adoptive admission. The appellants
    argue Wilson was under no obligation to speak in the presence of a police
    officer. They argue further that the trial judge erred in instructing the jury
    that it could use Wilsons lie about his afternoon whereabouts to support a
    conclusion that he and Mendez acted jointly. I need not explore these arguments
    further, as the conclusions expressed above are sufficient to deal with this
    appeal. In considering the unreasonable verdict arguments, I have not
    considered this impugned evidence.

[27]

I would quash the convictions for the first
    degree murder for each appellant, allow the appeal and order a new trial for
    both appellants.

G. Pardu J.A.

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

I agree Janet Simmons
    J.A.

Released: April 11, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rojas-Machuca, 2018 ONCA 390

DATE: 20180420

DOCKET: C61625

Benotto, Brown and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fred Rojas-Machuca

Appellant

Cate Martell, for the appellant

Xenia Proestos and Brigid Luke, for the respondent

Heard and released orally: April 18, 2018

On appeal from the
    conviction entered on December 4, 2015 by Justice Robert P. Villeneuve of the Ontario
    Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, possession of marijuana, and possession of stolen property. He
    appeals on the basis that the evidence obtained during the execution of a
    search warrant at his residence should have been excluded. He submits that the
    reviewing justice erred in considering the sufficiency of the Information to
    Obtain (ITO).

[2]

Three Confidential Informants provided information to police officers
    about the appellants involvement in drug trafficking:

·

CI #1 witnessed transactions in March, May, August, September and
    November 2014. CI #1 told police that the appellant was observed in possession
    of cocaine, that he kept cocaine inside his residence and that he delivered his
    product on foot.

·

CI #2 observed three drug transactions and said the appellant was
    constantly delivering cocaine but made no link between the drug trafficking and
    the appellants residence.

·

CI #3 saw individuals approach the appellants residence, bend
    down and drop something then pick something up. The information was that the
    front door is used for drug transactions.

[3]

Following a blended
voir dire
, the trial judge concluded at
    (page 22) that: The ITO adequately sets out grounds to believe that the
    [appellant] carried out the business of selling cocaine from his residence.

[4]

The appellant submits that this conclusion involves three broad errors
    by the trial judge:

1.

He did
    not properly consider the sufficiency of the grounds in relation to the location
    to be searched.  He submits that the information from CI#1 was conclusory, and
    CI#3 was untested. The evidence merely established that the appellant lived at
    the residence, not that evidence would be located there.

2.

He failed
    to appreciate the staleness of the information because the observations dating
    back to March were of no significance with respect to the search warrant sought
    in November.

3.

He did
    not assess the credibility and reliability of the information in accordance
    with factors in
Debot
by assessing the informants on a global basis
    instead of considering the information separately.

[5]

We do not accept these submissions.

[6]

CI #1s information was that he witnessed five cocaine transactions
    between March and November, two of which were at the appellants residence. The
    trial judge found this information detailed, based on personal information and
    compelling. In conjunction with the information from CI #2 and #3, it was
    reasonable to conclude that evidence of drug trafficking would be found at the
    appellants residence.

[7]

As to timing, CI#1 provided information of cocaine trafficking by the
    appellant in November 2014. The trial judge found that this information, given
    to the police in early November provides, in my view, reasonable grounds to
    conclude that [the appellant] was in possession of cocaine at or very near the
    time of the execution of the search warrant.

[8]

Lastly, in our view, the trial judge assessed each informers
    information using the
Debot
criteria. There was no pooling of the
    informers as alleged by the appellant. He addressed the credibility and
    reliability of each informer and specified where and how he found
    corroboration. CI #1s information was that he witnessed two cocaine
    transactions at Mr. Rojas residence. CI #2s information was found to be
    equally credible, and the source of his information was in the ITO. CI#1 and #2
    had been proven to be credible in the past. CI #3 provided information based on
    personal observations.

[9]

As there was no
Charter
breach, it is not necessary to address
    the appellants s. 24(2) submissions.

[10]

The
    appeal is dismissed.

M.L. Benotto J.A.

David Brown J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rootenberg, 2018 ONCA 335

DATE: 20180404

DOCKET: M48985

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Shaun Rootenberg

Applicant

Shaun Rootenberg, in person

Tracy Kozlowski, for the respondent

Heard and released orally: March 29, 2018

Application under s. 520(1) of the
Criminal
    Code
to review the detention order made by Justice Michael R. Dambrot of
    the Superior Court of Justice under ss. 521(1) and (8)(e) of the
Criminal
    Code
on February 26, 2018

ENDORSEMENT

[1]

Shaun Rootenberg, whom I will describe as the applicant, seeks an order
    under s.520(7) of the
Criminal Code
vacating a detention order made
    February 26, 2018 pursuant to ss. 521(1) and (8)(e) of the
Criminal Code
.
    The detention order was made by a judge of the Superior Court of Justice on
    application by the Crown to vacate a release order made at the conclusion of a
    preliminary inquiry by the committing justice.

The Background

[2]

On June, 6 2017 the applicant was arrested on four counts of each of
    fraud over $5000, possession of the proceeds of crime and money laundering. He surrendered
    into police custody on that day.

[3]

On June 8, 2017, at the conclusion of a judicial interim release
    hearing, a justice of the peace ordered the applicant detained in custody on
    the primary and secondary grounds.

[4]

About one month later, on July 10, 2017, the applicant brought a bail
    review application before a judge of the Superior Court of Justice. The
    application was dismissed.

[5]

On September 1, 2017 a second bail review application was brought before
    a different judge of the Superior Court of Justice. That application also
    failed.

[6]

Prior to or at some point during the conduct of the preliminary inquiry held
    from December 20-22, 2017 the Crown withdrew the counts of possession of the
    proceeds of crime and laundering the proceeds of crime. The preliminary inquiry
    proceeded as scheduled on the remaining four counts of fraud over $5000.

[7]

At the conclusion of the preliminary inquiry, the applicant, who was
    committed for trial on all four counts of fraud,  applied to the presiding
    justice to review the detention order under s.523(2)(b) of the
Criminal
    Code
. On January 18, 2018 the committing justice vacated the detention
    order and directed the applicants release on a recognizance with sureties and
    subject to conditions.

[8]

On January 29, 2018 the applicant appeared in the Superior Court of
    Justice. He was then served with an application by the Crown to review the
    release order made by the committing justice. That application was heard by a
    third judge of the Superior Court of Justice almost a month later, on February
    26, 2018. The application was allowed, the release order vacated and the
    applicant detained in custody.

[9]

The applicant is self-represented.

The Application

[10]

The
    applicant claims that special circumstances exist that warrant a judge of this
    court, exercising the jurisdiction conferred by s. 520(1) of the
Criminal Code
,
    reviewing the order of the judge of the Superior Court of Justice vacating the
    release order made by the committing justice and substituting a detention
    order.

[11]

As
    I apprehend his submissions, the applicant contends, that to allow another judge
    of the Superior Court of Justice to review the bail order (in this case, a
    detention order) made by another judge of the same court is not in keeping
    with the hierarchical scheme of the bail system in Canada.

[12]

The
    applicant also points to what he says are several errors made by the judge
    conducting the review of the release order put in place by the committing
    justice. In particular, he finds fault in the reviewing judges determination
    that neither the withdrawal of the proceeds and money laundering counts nor any
    other factor amounted to material change in circumstances sufficient to
    authorize the committing justice to set aside the detention order and
    substitute an order for release.

Discussion

[13]

To
    take first the submission that to allow another judge of the Superior Court of
    Justice to review the bail (detention) order of a fellow judge of the same
    court is not in keeping with the hierarchical scheme of the bail system in
    Canada.

[14]

This
    argument founders on several grounds.

[15]

First,
    the same argument was advanced and rejected in
R. v. Durrani
, 2008
    ONCA 856, a decision of MacPherson J.A. sitting In chambers. As he points out,
    this argument not only finds no support in the wording of s. 520 and I would
    add, s. 521, but is contradicted by it. These review provisions plainly
    contemplate more than a single opportunity to bring a bail review application
    on both sides. Further, it logically follows, they contemplate that different
    judges of the superior court will sometimes hear them: see
Durrani
, at
    para. 29.

[16]

Second,
    the fact that the proposed review is based at least in part on an alleged error
    of law by a judge of the Superior Court of Justice does not, on its own,
    qualify as a special circumstance justifying a judge of this court to entertain
    a review. Nor does an allegation of error stamp the decision as only capable of
    review by this court. Judges of the Superior Court of Justice will fulfill
    their responsibilities by finding judicial error, if it exists and falls within
    their review jurisdiction, by exercising an independent discretion if the
    circumstances call for it. At one point in his oral submissions, Mr. Rootenberg
    appeared to suggest, an institutional bias in the Superior Court of Justice. It
    appears funded by nothing more than a disagreement with the conclusions reached
    by various judges of that court, a ground that simply cannot support such a
    claim.

[17]

Third,
    implicit in the argument that a judge of this court should exercise
    jurisdiction because of the hierarchical structure of the courts of this
    province seems to be a perception that a judge of the appellate court occupies
    a higher rung in the judicial hierarchy than a judge of the provincial superior
    trial court when it comes to a review of release or detention orders or
    decisions. This perception is not grounded in reality.

[18]

Whatever
    may be their patent or their jurisdiction elsewhere under the
Criminal Code,
the review authority established by ss. 520 and 521 of the
Criminal Code
settles upon a judge.  A judge is defined in s. 493 of the
Criminal
    Code
in this province as a judge of the superior court of criminal
    jurisdiction of the province. And in this province, s. 2 of the
Criminal
    Code
defines superior court of criminal jurisdiction as the Court of
    Appeal or the Superior Court of Justice. It necessarily follows that judges of
    each court have the same review jurisdiction. Judges of the Court of Appeal
    have no more or different review jurisdiction than judges of the Superior Court
    of Justice. And judges of the Superior Court of Justice have no less review
    jurisdiction than judges of the Court of Appeal. All are equal for these
    purposes. Some are not more equal than others.

[19]

The
    decision in
Durrani
also makes the point that what constitutes
    special circumstances is to be defined quite narrowly. While I do not
    consider the examples given in
Durrani
were intended to be or should
    be considered to be exhaustive, I am not satisfied that there is anything in
    this case that would so qualify. In particular, I have in mind the assertion of
    legal error as a gateway to the special circumstances exception to permit a
    judge of this court to conduct a review. That principle was rejected in
Durrani
as well as the recent decision in
R. v. George
, 2018 ONCA 318, at
    para. 27 and by the Manitoba Court of Appeal in
R. v. Zenelli,
2003 MBCA
    50, at para. 9. It assumes that only judges from an appellate court can correct
    errors by judges of the superior trial court. Mere statement of that
    proposition refutes it.

[20]

Mr.
    Rootenberg also addressed the merits of the application. He asserted the judge,
    whose decision is under review, committed multiple errors in the conduct of the
    hearing and the result he reached. He denied an adjournment. He failed to
    consider the committing judges reason as a whole. He erred in considering that
    withdrawal of counts of money laundering and possession of proceeds of crime
    did not amount to a material change in circumstances, to name but a few.

[21]

Since
    I have not been persuaded that special circumstances warrant exercising my
    coordinate jurisdiction, I do not reach these issues. Suffice it to say, that if
    I did, the result would be no different.

Conclusion

[22]

The
    application is dismissed.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walters, 2018 ONCA 391

DATE: 20180423

DOCKET: C58176

Rouleau, Tulloch and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Charles Walters

Appellant

Donald Charles Walter, in person

Erika Chozik, duty counsel

Gregory J. Tweney, for the respondent

Heard: April 5, 2018

On appeal from the conviction entered on November 29,
    2011 and the sentence imposed on November 20, 2013 by Justice Faye E. McWatt of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was declared a dangerous offender following his conviction
    for one count of criminal harassment and four counts of failure to comply with probation
    orders. In addition to just over three years of pre-sentence custody, a two
    year custodial term was imposed, along with a ten year long term supervision
    order (LTSO).

[2]

This is an appeal from the dangerous offender finding and from the two
    year custodial sentence imposed.

[3]

The appellant argues that the trial judge erred in two ways.

(a)

Finding that the criminal harassment constituted a serious personal
    injury offence as required under s. 753(1)(a) of the
Criminal Code
.

(b)

Finding under s. 753(1)(a)(i) that there was a pattern of repetitive
    behaviour, of which the predicate offence formed a part, showing a failure to
    restrain his behaviour and a likelihood of inflicting severe psychological
    damage on others through a failure in the future to restrain his behaviour. It
    is said that this finding was without an evidentiary foundation because:

(i)
    the Crowns expert only opined as to the likelihood of future significant
    psychological harm, which is said to fall short of the statutory requirement
    of the likelihood of future severe psychological damage; and

(ii) based
    upon the types of offences committed in the past, which primary consisted of what
    are described as indecent exposure types of offences, severe psychological harm
    could not be inferred. As the appellants former victims did not testify about
    psychological damage that they may or may not have suffered, it is unclear as
    to whether any future offences of a similar ilk would result in the statutory
    requirement for the infliction of severe psychological damage.

[4]

We disagree.

[5]

Section
752 defines a
    serious personal injury offence as including an indictable offence involving
    the infliction or likely infliction of severe psychological damage upon
    another person. The trial judge found as a fact that the complainant in the
    predicate offence suffered severe psychological damage:
R. v. Walters
,
    2012 ONSC 3567, at paras. 12-16. Although the trial judge noted that the
    offence was not violent in the usual way, because there was no physical touching,
    she concluded that it was physically and psychologically violent in all other
    circumstances.

[6]

The criminal harassment arose from the appellant emerging from the
    bushes in the dark, on a lonely street. He was close enough that the
    complainant could feel his breath. He was masturbating as he followed her. The
    finding of severe psychological damage is well supported on the record,
    including the complainants evidence that she panicked, was scared and
    terrified, could no longer go out without fear, and now hears footsteps when
    she is outside. As she said, her life flashed before [her] eyes  not knowing
    if [she] would be seriously harmed or killed. She maintained in her victim
    impact statement that the crime had changed her. In these circumstances, it was
    reasonable for the trial judge to conclude that this was a serious personal
    injury offence and that the complainant had suffered severe psychological
    damage.

[7]

The fact that Dr. Glancy did not use terminology that precisely tracks
    the language of the
Criminal Code
is not determinative of the issue.
    The legal determination was for the trial judge to make. She properly
    considered Dr. Glancys evidence, along with the complainants evidence and the
    appellants criminal record of 15 prior sexual offences and 19 prior non-sexual
    violent offences and 21 breaches of court orders, in reaching her conclusion.

[8]

Although the appellant maintains that the nature of his prior conduct
    falls largely at the lower end of seriousness for sexual and other violent
    misconduct, the trial judge was required to consider the conduct as a whole,
    along with the expert evidence as to the future likelihood of severe
    psychological damage. The entire package of conduct is what led to the
    conclusion about the appellants ongoing dangerousness.

[9]

We see no basis to interfere with this decision. It was a reasonable
    conclusion.

[10]

In
    addition, we note that the trial judge also found that the appellant met the
    criteria for designation as a dangerous offender under 753(1)(a)(ii) of the
Criminal
    Code
. We see no error in her analysis under this provision.

[11]

The
    appellant also maintains that the custodial sentence of two years, in addition
    to three years of pre-sentence custody, along with an LTSO of 10 years, was
    excessive. He has completed the custodial portion of his sentence and continues
    to serve his LTSO in a halfway house.

[12]

The
    appellant argues that the sentence was excessive in light of the jump principle
    and the trial judges failure to consider the circumstances of the offender. We
    disagree.

[13]

We
    are satisfied that the trial judge properly approached her task of sentencing
    the appellant, after he had been found a dangerous offender, in a manner that
    emphasized the least intrusive sentence required to achieve the primary purpose
    of the statutory scheme:
R. v. Boutilier
, 2017 SCC
64, [2017] 2 S.C.R. 936, at para. 60. In
    particular, the trial judge had regard to the need for the appellant to be in a
    penitentiary setting in order to access necessary high intensity sexual
    assault programs. The trial judge determined this to be necessary treatment to
    address the significant threat posed by the appellant to the community.

[14]

The
    appeal is dismissed.

Paul Rouleau J.A

M. Tulloch J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2018 ONCA 367

DATE: 20180416

DOCKET: C64242

Hoy A.C.J.O., MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerome Delton Williams

Appellant

Robert Sheppard, for the appellant

Peter M. Campbell, for the respondent

Heard: April 11, 2018

On appeal from the sentence imposed on December 21, 2016
    by Justice Peter B. Hockin of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was sentenced on two sets of charges. The first set
    stemmed from the appellants arrest on November 2, 2012 in possession of $9,565
    in cash. When police subsequently searched his home, they found 65g of cocaine,
    a loaded .45 calibre semi-automatic handgun alongside ammunition, and drug
    paraphernalia. He was released pending trial.

[2]

On October 2, 2013, while on bail, he was arrested again, this time in
    possession of 1.026 kg of cocaine and a 9mm Sig Sauer handgun, with ammunition.
    Police found 1.814 kg of marijuana at his home

[3]

On October 12, 2016, after a trial before a judge alone on the first set
    of charges, the appellant was found guilty of:

1)

Possession of cocaine for the purpose of    trafficking,

2)

Careless storage of a firearm,

3)

Unlicensed possession of a firearm,

4)

Unauthorized possession of a restricted weapon, and

5)

Possession of a loaded handgun, possession of a firearm with a defaced
    serial number.

[4]

Before he was sentenced on these convictions, the appellant pled guilty
    to the following charges arising out of his October 2, 2013 arrest:

1)

Possession of cocaine
    for the purpose of trafficking,

2)

Possession of cannabis
    for the purpose of trafficking,

3)

Carrying a concealed
    firearm,

4)

Possession of a
    restricted firearm with readily accessible ammunition, and

5)

Breach of recognizance
    (for possession of a firearm).

[5]

The appellant was sentenced for the two sets of convictions at the same
    time. The sentencing judge sentenced the appellant to an aggregate of 12 years
    imprisonment, less five years for time served, for the two sets of convictions.

[6]

In his reasons the sentencing judge took into consideration the factors
    of denunciation, both specific and general deterrence, the need to separate the
    offender from society, rehabilitation, the relative youth of the appellant, and
    the principle of totality, recognizing, given the seriousness and number of
    offences, that any aggregate sentence would be significant. He also considered
    the many letters of support filed on the appellants behalf.

[7]

The sentencing judge proceeded by first determining what the appropriate
    sentence would be for each of the various offences, without taking into account
    mitigating circumstances. He concluded that the sum of the appropriate
    sentences for the two occurrences was 17 years.

[8]

The sentencing judge then considered the mitigating factors and the
    principle of totality. He noted that the appellant was relatively young just
    27 years of age, that the letters filed showed the appellant would have much
    support on his release, that the appellant had a nine-year-old son, and that he
    expressed his great regret and remorse. After considering the totality
    principle the sentencing judge reduced the aggregate sentence to 12 years, less
    a credit of five years for time served.

[9]

While the sentencing judge noted the appellants guilty pleas to the
    second set of charges in his narrative of events, his reasons do not indicate
    he took the guilty pleas into account in determining the appropriate sentence. Further,
    while the trial judge noted the appellants relative youth at the time of
    sentencing, his reasons do not indicate he took into account that the appellant
    was just 23 years of age and a first offender at the time of the first set of
    offences or that a first penitentiary sentence should be the shortest possible
    that achieves the relevant sentencing objectives. Finally, we are of the view
    the sentencing judge did not accord sufficient weight to the factor that the
    appellant should not be crushed by the sentence. In our view, the sentence
    imposed all but eliminates the appellants prospects for rehabilitation.

[10]

In
    light of these considerations, we consider that the sentence imposed was unfit.
    We would grant leave to appeal and allow the appeal and vary the total sentence
    imposed to one of nine years imprisonment less a credit for five years for pre-sentence
    custody.

Alexandra Hoy
    A.C.J.O.

J.C. MacPherson
    J.A.

R.G. Juriansz
    J.A.