COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Boudreau, 2012
    ONCA 830

DATE: 20121128

DOCKET: C50934

MacPherson, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Earle Boudreau

Appellant

Brian H. Greenspan and Naomi M. Lutes, for the appellant

Gregory J. Tweney, for the respondent

Heard: November 8, 2012

On appeal from the convictions entered on May 28, 2008 by
    Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a
    jury.

By the Court:

A.

INTRODUCTION

[1]

The appellant, James Boudreau, was charged with two counts of
    first-degree murder in connection with the deaths of James Pearce and Gordon
    Smith. Following a 16-day trial presided over by Shaughnessy J. of the Superior
    Court of Justice, a jury returned verdicts of guilty of first-degree murder in
    the death of Smith and second-degree murder in the death of Pearce.

[2]

The appellant appeals his convictions on four grounds, the principal one
    being that the Crowns closing address to the jury was improper and deprived
    the appellant of a fair trial.

B.

FACTS

[3]

The appellant, Pearce and Smith had been good friends for many years.
    They were also involved in an illegal activity known as pot piracy, which
    involved stealing marijuana crops from dangerous people such as the Satans
    Choice motorcycle club. These drug rips, as they were called, had the
    potential to be violent; the participants wore masks and carried guns. The
    rough stolen marijuana was brought to a safe house in Colborne, where it
    was cleaned and trimmed in preparation for sale.

[4]

On October 3, 1999, the appellant and his group stole a mother lode of
    marijuana and brought it to their safe house. The next evening, October 4, the
    marijuana was stolen from the safe house.

[5]

On October 5, 1999, everyone who worked at the safe house was called to
    a meeting there. The appellant, Smith and the clippers who prepared the
    marijuana for sale were there. Pearce did not attend. The participants, and
    especially the appellant, formed the view (wrongly, as it turned out) that
    Pearce was responsible for the theft of the marijuana. The appellant was angry
    and said, in relation to Pearce, Ill kill him. Ill fucking kill him.

[6]

Pearce disappeared the same day. He left without identification, extra
    clothing, or even his dentures. He has not been seen or heard from since
    October 5, 1999, and there is no record of any activity on his banking,
    employment, health or other records. His body has never been found.

[7]

The following year, Smith was in custody on drug charges. He and the
    appellant spoke regularly while Smith was in custody. Their calls were
    intercepted and it is obvious they were planning more drug rips once Smith was
    released. In their telephone conversations, Smith also told the appellant that
    the police had been asking him questions about Pearces disappearance. During
    this time, and while Smith was still incarcerated, the appellant was told by an
    acquaintance that Smith had ratted out this acquaintance with respect to some
    stolen property.

[8]

Smith was released from jail on September 6, 2000. He stayed at the
    appellants house. However, he spent one night at his girlfriends house, which
    clearly annoyed the appellant, who had developed a relationship with Smiths
    girlfriend while Smith was in jail.

[9]

On September 8 between 11 a.m. and 1 p.m., the appellant and Smith left
    the appellants house together. Smith was wearing a Pink Floyd t-shirt. Just
    after 2 p.m. that afternoon, a cottage owner near Cobourg heard eight gunshots
     four quick shots, a pause, and then four more shots.

[10]

Smiths
    body was found less than two weeks later in a heavily wooded area just 183
    meters from the cottage. He had been shot at least seven times at close range
    with a 12-gauge shotgun. He was still wearing his Pink Floyd t-shirt.

[11]

In
    the weeks following Smiths disappearance, the appellant gave various people
    conflicting explanations for Smiths whereabouts. Sometime before Smiths body
    was found, the appellant told his teenage daughter that Smith had been shot in
    the back of the head. Her evidence of what her father said to her was: Well if
    God can kill people then why does it matter if he does?

[12]

There
    are other facts relevant to the disposition of this appeal. They are better
    addressed in the context of the issues to which they relate.

C.

ISSUES

[13]

The
    appellant raises four issues:

(1)

Did the trial judge err in failing
    to declare a mistrial as a result of improprieties in the Crowns closing
    submissions to the jury?

(2)

Did the trial judge err in
    permitting the Crown to lead opinion and hearsay evidence through Steven Gault,
    a paid police agent, with respect to identity and motive in relation to the two
    murders?

(3)

Did the trial judge err in
    allowing the Crown to invite the jury to draw a series of inferences in support
    of a theory of motive that was based entirely on speculation?

(4)

Were the verdicts unreasonable and
    contrary to the weight of the evidence?

D.

ANALYSIS

(1)

The Crown closing
    address

[14]

The
    appellant contends that the Crown closing address was, in part, sarcastic and
    inflammatory in tone and speculative and factually inaccurate in content.

[15]

Both
    counsel are entitled to a fair degree of latitude in their closing addresses to
    the jury. As expressed by this court in
R. v. Daly
(1992), 57 O.A.C.
    70, at p. 76:

A closing address is an exercise in advocacy. It is a
    culmination of a hard fought adversarial proceeding. Crown counsel, like any
    other advocate, is entitled to advance his or her position forcefully and
    effectively. Juries expect that both counsel will present their positions in
    that manner and no doubt expect and accept a degree of rhetorical passion in
    that presentation.

See also:
R. v. Mallory
, 2007 ONCA 46,
217 C.C.C. (3d) 266 , at
    para. 339.

[16]

However,
    there are important and well-settled limits on Crown advocacy. While the Crown
    may argue its case forcefully, it must abstain from inflammatory rhetoric,
    demeaning commentary and sarcasm. The Crown must not misstate the facts or the
    law. The Crown must not invite the jury to engage in speculation or express
    personal opinions about either the evidence or the veracity of a witness: see
Mallory
,
    at para. 340.

[17]

The
    appellant alleges that certain passages in the Crown closing address were
    sarcastic and inflammatory, included improper comments on the veracity of
    witnesses, and invited the jury to speculate about the evidence. He submits
    that these defects rendered the trial unfair.

[18]

We
    do not accept this submission. Crown counsel made a lengthy closing address at
    the conclusion of a 16-day trial in a double murder case. Arguably, some of Crown
    counsels remarks, during a closing address that covers 120 pages of transcript
    and lasted over four hours, were sarcastic, appeared to express an opinion
    about the veracity of some witnesses testimony, and could be construed as
    inviting the jury to speculate about certain matters.

[19]

However,
    the trial judge, on his own initiative, without any objection or request from
    defence counsel, decided to deliver an addendum to his jury charge. In his
    blunt and strongly-worded addendum, he identified and explicitly discussed
    several statements by Crown counsel that he considered fell into the realm of
    sarcasm and speculation. He also explicitly instructed the jury that counsels
    opinion of witnesses was irrelevant. Defence counsel did not object to these
    corrections, or ask for anything more or different, or, importantly, seek a
    mistrial.

[20]

In
    our view, the trial judges addendum effectively overcame any problems that
    might have been created by Crown counsels perceived sarcasm, stated opinions
    about the veracity of witnesses, or invitations to speculate. In many cases,
    appeal courts have accepted a timely and focussed correction by a trial judge
    of deficiencies in a Crown closing address: see for example,
R. v. Finta
,
    [1994] 1 S.C.R. 701, at paras. 281-82;
R. v. Trochym
, 2007 SCC 6, 1
    S.C.R. 239, at para. 184;
R. v. Munroe
(1995), 96 C.C.C. (3d) 431
    (Ont. C.A.), at p. 452
; and
R. v. Gordon
, 2012
    ONCA 533, at para. 6. In our opinion, the trial judges correction here was
    timely, comprehensive and crystal clear. Thus, as Bastarache J. said in
    relation to the same issue in
Trochym
at para. 184, deference should
    be shown to the trial judges handling of this case. This is particularly so
    where, as here, an accused attacks a trial judges discretionary decision not
    to declare a mistrial.

(2)

Steven Gaults
    evidence

[21]

The
    appellant submits that the trial judge erred in permitting Steven Gault, a paid
    police agent, to provide his opinion in respect of the identity of Pearces and
    Smiths killer; namely, that it was the appellant.

[22]

At
    trial, when Gault was asked and answered questions in this domain, defence
    counsel objected and the Crown conceded that the answers were based on hearsay,
    namely, what Gault had been told by others. However, the Crown contended that
    this evidence was not being tendered for its truth, but rather to explain
    Gaults state of mind leading to his subsequent actions, especially his role as
    a police agent and his attempt to surreptitiously record a conversation with
    the appellant about Pearces disappearance. The trial judge agreed with the
    Crown position, allowed the testimony, and instructed the jury that this part
    of Gaults evidence was narrative only and could not be used as evidence
    concerning the appellant.

[23]

We
    do not accept the appellants submission on this issue. Neither Gaults
    testimony about his actions as a police agent in this case  including his own
    confession to the appellant that he and two associates, not Pearce, had
    stolen the appellants mother lode of marijuana  nor his decision to wear a
    body pack in a largely successful attempt to obtain a confession by the appellant
    to Pearces murder would have made sense if the jury did not have a full
    understanding of Gaults thinking leading to his conduct.

[24]

In
    any event, even if this evidence were improperly admitted, it would not have
    affected the verdict. In his long closing address, the Crown said nothing about
    Gaults opinion. The trial judge said nothing about it in his jury charge.
    Importantly, in his jury charge the trial judge said that facts, not opinions,
    should govern the jurys deliberations and decision. This instruction would
    have applied to Gaults testimony.

(3)

Inferences versus
    speculation

[25]

The
    appellant submits that the trial judge erred in failing to caution the jury
    with respect to the Crowns theory of motive respecting the murder of Smith.
    The Crowns theory was that the appellant suspected that Smith was about to
    rat him out for the earlier murder of Pearce. The appellant submits that the
    Crowns closing submission on motive was based on a house of cards involving
    five propositions, all of which were based on speculation, not evidence and
    proper inferences from the evidence: (1) Smith had knowledge about the murder
    of Pearce which could implicate the appellant; (2) Smith lied to the appellant
    about his interview with the police; (3) the appellant thanked Smith for lying
    to the police; (4) a witness by the name of Steven Brown recounted to the
    appellant details of his own interview with the police; and (5) therefore, the
    appellant believed Smith was about to rat him out.

[26]

We
    do not accept this submission. There was evidence for each of the four
    propositions leading up to the conclusion in the fifth proposition.

[27]

On
    the first proposition, Smith was at the safe house the day the angry appellant
    threatened to kill Pearce. Pearce disappeared that same day.

[28]

On
    the second proposition, Smith did lie to the appellant about his interview with
    the police  he told the appellant that all he had said to the police was that
    on the day of Pearces murder, Pearce did not show up for a meeting; in fact,
    Smith told the police that Pearce was at the appellants house on the morning
    of October 5, 1999, the last day Pearce was seen alive. Moreover, and
    importantly, in his closing address to the jury, the Crown did not characterize
    Smiths statement to the appellant as a lie; he simply noted that Smith had
    actually told the police more than what he later disclosed to the appellant
    about that conversation.

[29]

On
    the third proposition, after Smith told the appellant what he had said to the
    police, the appellant then said right, right, thanks bud, right on. This is
    certainly the language of gratitude.

[30]

On
    the fourth proposition, at around 11:30 a.m. on September 6, 2000, the day
    Smith was released from jail, Brown agreed to submit to a polygraph test. By
    2:50 p.m., he informed the police that he had changed his mind. During this
    interval, Brown returned to the muffler shop where he worked. Through a series
    of intercepted telephone calls, the Crown established that the appellant was at
    the same shop from at least noon to 4:30 p.m. It is a fair inference, not wild
    speculation, that the two men discussed Browns conversation with the police
    earlier that morning.

[31]

It
    follows from this analysis  and from the evidence that the appellant had been
    told of an acquaintances suspicion that Smith was a rat  that the fifth
    proposition was not based on speculation. It was proper for the Crown to put
    the motive that the appellant believed Smith was about to rat him out for
    Pearces murder to the jury. It was also appropriate for the trial judge to
    instruct the jury on this issue, as he did:

In relation to count number two in the indictment regarding
    Gordon Smith, Crown counsel submits that James Boudreau was aware that Gordon
    Smith had knowledge of the motive of Mr. Boudreau to kill James Pearce and also
    his threat to do so. He also had reason to believe that Gordon Smith was a
    rat who was providing information to the police.

. . .

It is for you to decide whether James Earle Boudreau had such
    motives, or any motive at all, and how much or how little you will rely on it
    to help you decide this case.

(4)

Unreasonable
    verdict

[32]

The
    appellant candidly acknowledges that if he does not succeed on any of the
    previous three grounds of appeal, the unreasonable verdict ground cannot be
    made out.

E.

DISPOSITION

[33]

The
    appeal is dismissed.

Released: November 28, 2012 (J.C.M.)

J.C. MacPherson J.A.

E.A. Cronk J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bush, 2012 ONCA
    743

DATE: 20121105

DOCKET: C52384

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lawrence Bush

Appellant

Gord Cudmore, for the appellant

Matthew Asma, for the respondent

Heard: October 23, 2012

On appeal from the sentence imposed on June 25, 2010 by
    Justice Joseph M.W. Donohue of the Superior Court of Justice, sitting without a
    jury.

By the Court:

[1]

On the afternoon of June 21, 2009, the appellant, with three friends in
    his car, set off on a drunken high speed crop tour of rural Lambton County. For
    more than an hour, this reckless escapade continued, with the appellant reaching
    speeds of 170 km/hr on back roads, repeatedly endangering pedestrians and other
    drivers, while he and his passengers continued to drink and consume Percocet
    pills. At one point, he sped off at over 110 km/hr, with one of his passengers,
    Roland Bruno, clinging to the hood of the car, so called hood surfing. After
    running the car into a ditch, the appellant managed to get it back on the road
    and, despite his passengers request that he slow down, continued his
    outrageous driving.

[2]

It all ended tragically when the appellant drove off the road and his
    car landed upside down in a stream. The appellant promptly exited, leaving his
    passengers behind. When he returned several minutes later Mr. Bruno, who had
    passed out from alcohol consumption, was still in the car with his head underwater.
    A second passenger was trapped in the back seat of the car with his head in an
    air pocket. The appellant tried to pressure the others into agreeing to a
    fabricated version of events to tell police and refused to do anything to help those
    still in the car until they all agreed on what story to tell the police. The
    appellant also proceeded to try to dispose of alcohol and drugs that had been
    in his car.

[3]

One of the passengers finally decided to go for help. More than 20
    minutes after the crash, when the police arrived, the appellant denied being
    the driver or knowing any of the passengers. Mr. Bruno was finally pulled from
    the car by a passersby, but by that time he was dead.

[4]

The appellants blood alcohol concentration at the time of the accident
    was between 273 and 371 mg/100 mL. He was on bail from an earlier charge of
    impaired driving. He had not had a licence to drive since 1985 and only ten
    days earlier had been convicted of driving while suspended, his eighth
    conviction for that offence.

[5]

The appellant pleaded guilty to criminal negligence causing death,
    impaired driving causing death, driving while disqualified and breach of an
    undertaking to abstain from consumption of alcohol. The trial judge imposed a
    global sentence of 12 years in prison. After a credit of two years for
    pre-trial custody, he was left with ten years to serve.

[6]

The appellant appeals his sentence. His argument is that it is outside
    the range of sentences imposed for this offence and hence unfit. At trial, the
    Crown sought a global sentence of ten years. In this court, the Crown supported
    the sentence imposed, but fairly acknowledged that it is higher than any
    sentence previously approved by this court for fatal drinking and driving
    offences.

[7]

After argument, the court announced that the appeal was dismissed with
    reasons to follow explaining why. These are those reasons.

[8]

We begin by reiterating what this court said in
R. v. Ramage
,
2010 ONCA 488. Appellate deference to a
    trial judges sentencing decision is an appropriate reflection of the trial
    judges uniquely placed position in balancing the various interests at play in
    the fact-based act of judicial discretion that sentencing is. The sentencing
    judge represents and speaks for the community that suffers the consequences of
    the crime in a way this court does not. He or she must chose from the range of
    reasonable options, a sentence that best fits the offender and the offence, and
    if this is done, there would be little point in this court repeating the
    exercise. For these reasons, the sentence chosen attracts deference in this
    court.

[9]

Second, we reaffirm what this court said in
R. v. Junkert
, 2010
    ONCA 549, at paras. 40-41:

[
40
]    I begin by noting that courts should
    be cautious in rigidly applying a range of sentences in cases such as this,
    involving impaired driving causing death.  In
R. v.

Heaslip

(2001), 10 M.V.R. (4th) 220 (Ont. C.A.), in
    dismissing a Crown appeal from a sentence for two counts of impaired driving
    causing death and one count of impaired driving causing bodily harm, this court
    said:

In
R v. L. (J.)
[(2000), 147 C.C.C. (3d) 299 (Ont.
    C.A.)], this Court also recognized that cases involving drinking and driving
    did not demonstrate a particular range of sentencing but rather that the
    sentences were driven by the almost infinite variety of circumstances in which
    this offence can be committed.

[
41
]

Clearly,
    sentences imposed by courts in earlier decisions provide guidance as to an
    appropriate sentence.  However, appellate interference may only be
    justified if the sentence imposed at trial is demonstrably unfit.

[10]

Finally,
    we return to the facts of this case that make the appellants conduct so
    egregious. As outlined above, his conduct leading up to the crash was, as
    appropriately described by the trial judge, outrageous. It endangered the
    community. It was fuelled by excessive overconsumption of drugs and alcohol.
    His conduct after the crash was equally troubling and callous in attempting to
    plot a fabricated story for police and in leaving Mr. Bruno to die. His driving
    history confirms a pattern into which these tragic events seem all too easily
    to fit.

[11]

Although
    it would have been preferable for the trial judge to indicate to counsel he was
    considering a sentence above that proposed by the Crown before he did so, these
    facts demonstrate why societys concern about drunk and reckless driving
    causing death continues to grow. In all the circumstances, while the sentence
    was undoubtedly high, we cannot find it unfit.

[12]

The
    appeal is therefore dismissed.

Released: November 5, 2012 (S.T.G.)

S.T. Goudge J.A.

Paul Rouleau J.A.

David Watt 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), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

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

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes
    of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

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

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

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

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

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

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. C.L., 2012 ONCA 835

DATE:  20121129

DOCKET: C54508

OConnor A.C.J.O., Weiler and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.L.

Appellant

M. Dineen, for the appellant

K. Crosbie, for the respondent

Heard:  September 8, 2012

On appeal from the sentence imposed by Justice M.A. Code
    of the Superior Court of Justice, dated July 2, 2010.

ENDORSEMENT

[1]

The appellant was convicted of one count of sexual assault and one count
    of incest arising out of a single incident.  He was sentenced to 3 ½ years
    imprisonment with credit for approximately 18 months pretrial custody on a 1:1
    basis.

[2]

In reasons released on November 7, 2012, we dismissed the appellants
    appeal against conviction.

[3]

The appellant also appealed his sentence.  This endorsement addresses
    the sentence appeal.  The appellant concedes that the sentence of 3 ½ years was
    fit.  His sole ground of appeal is that the sentencing judge erred in only
    giving him credit for the pretrial custody on a 1:1 basis.

[4]

At the sentencing hearing, the appellant led evidence that he had been
    held in administrative segregation for the entire pretrial period.  Because of
    the nature of the charges against him, he would have been in physical danger if
    he had been held with the general jail population.  Thus, he spent 23 hours a
    day in his cell.  The appellants pretrial custody predated the recent
    amendments to the
Criminal Code
limiting the credit that may be given
    for pretrial custody.

[5]

At the sentencing hearing, the defence asked that the appellant be given
    2:1 credit.  The Crown submitted 1.5:1 was appropriate.

[6]

The appellant argues that in giving 1:1 credit, the sentencing judge
    failed to attach sufficient weight to the harsh conditions in which he was held
    and to the Crowns position.

[7]

We see no error.  In our view, the sentencing judge acted within his discretion.
    He gave detailed and careful reasons for imposing the sentence of 3 ½ years.
    As to pretrial custody, he considered the harsh administrative segregation
    conditions.  However, he also took into account other factors that weighed
    against enhanced credit.  At the time the appellant committed the present
    offences he had outstanding charges and was in breach of the terms of his
    bail.  In addition, the appellants significant criminal record, pending
    deportation order, and conviction for sexual assault made it unlikely he would
    receive early parole.

[8]

In our view, the sentencing judge considered the appropriate factors and
    was entitled to give credit on a 1:1 basis.

[9]

We grant leave to appeal the sentence, but dismiss that appeal.

D. OConnor A.C.J.O.

K.M. Weiler J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Cova, 2012 ONCA
    849

DATE: 20121130

DOCKET: C56131

Goudge, Rouleau JJ.A., and Ray J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Simon Cova

Appellant

Mark Halfyard, for the appellant

David Friesen, for the respondent

Heard: November 27, 2012

On appeal from the decision of the Summary Convictions
    Appeal Court dated October 18, 2012 by Justice Faye E. McWatt of the Superior
    Court of Justice, dismissing the appeal from the sentence imposed on March 12,
    2012 by Justice S. Gail Dobney of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

While in our view the trial judge may well have been motivated by her
    view that the joint submission was below the range, she did conclude that it
    would bring the administration of justice into disrepute.

[2]

We agree with the summary conviction appeal judge that the trial judge
    found the proper legal test for rejecting the joint submission was satisfied
    here. There is therefore no error in law in the judgment appealed from.

[3]

Leave to appeal must be denied.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE:
R. c. Isiko, 2012 ONCA 819

DATE: 20121126

DOSSIER: C53871

Les juges Weiler, Blair et Hoy

ENTRE

Sa Majesté La Reine

Intimée

et

Cengiz Isiko

Appelant

Cengiz Isiko, en personne

Russell Silverstein, avocat de service

Robert Gattrell, pour lintimée

Audience: Le 9 novembre 2012

En appel de la déclaration de culpabilité
    prononcée le 7 juin 2011 par
lhonorable M. le juge Matheson
    de la Cour supérieure de justice, siégeant avec jury.

INSCRIPTION

[1]

Après un procès avec jury, M. Isiko a été
    reconnu coupable de meurtre au premier degré. La seule question que nous devons
    trancher est le niveau de culpabilité de M. Isiko.

[2]

M. Isiko allègue quil navait pas de motif pour
    tuer sa femme. Cependant, il nincombait pas à la Couronne de prouver le motif
    de laccusé pour commettre ce crime.

[3]

M. Isiko prétend que les directives du juge du
    procès lui ont porté préjudice et quil nexistait pas de preuve quil avait
    planifié le meurtre et avait délibéré avant de le commettre.

[4]

Nous sommes tous davis que le juge du procès
    na commis aucune erreur dans ses directives au jury. Les éléments de preuve
    que le jury pouvait prendre en considération pour décider si le meurtre était
    planifié et délibéré  comprennent notamment que  comprennent M. Isiko sest
    présenté à la maison  habille comme un travailleur de construction malgré le
    fait quil noeuvrait pas dans ce domaine, quil a demandé qui était à la
    maison, quil a apporté un couteau avec lui, quil a essayé de tuer un témoin
    oculaire en la poignardant treize fois.  M. Isiko conteste le fait quil a
    apporté le couteau avec lui, mais  deux éléments de preuve qui appuient cette
    conclusion : le témoignage de sa nièce à leffet quil avait placé ses mains
    derrière lui et le témoignage dautres témoins confirmant que le couteau ne
    provenait pas  de la maison.

[5]

Compte tenu de lensemble de la preuve, le
    verdict était raisonnable. Lappel est donc rejeté.

« Karen M.
    Weiler j.c.a. »

« R.A. Blair
    j.c.a. »

« Alexandra
    Hoy j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Desbiens, 2012
    ONCA 744

DATE: 20121105

DOCKET: C53357

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Desbiens

Appellant

Breese Davies, for the appellant

Riun Shandler, for the respondent

Heard: October 25, 2012

On appeal from the sentence imposed on May 14, 2010 by
    Justice Donald Downie of the Ontario Court of Justice, sitting without a jury.

By the Court:

[1]

On May 14, 2010, the appellant pleaded not guilty to robbery with a
    firearm, but guilty to simple robbery. The trial judge accepted a joint
    submission of 30 months in prison with no credit for pre-trial custody.

[2]

The appellant has appealed his sentence, arguing ineffective assistance
    of his lawyer during the sentencing process. At the close of argument we
    dismissed the appeal with reasons to follow.

[3]

These are those reasons.

[4]

The appellant was arrested on March 25, 2010, for robbing a convenience
    store using a BB gun. He was charged with use of a firearm in committing robbery,
    which carries a minimum sentence of four years.

[5]

At the time of his arrest, the appellant was 36 years old and living
    with his wife and two children. He had a criminal record of driving with over
    80 mg of alcohol, assault, uttering threats, theft under $5000, possession of
    break-in instruments and mischief.

[6]

The appellant had been on anti-psychotic and anti-anxiety medication for
    ten years. He was also addicted to Oxycontin and Percocet. On his arrest, he
    was immediately denied all medication until March 31, when some, but not all of
    his anti-psychotic and anti-anxiety medication was restored, and then only in
    partial amounts. As a result, he was in constant severe physical pain and
    endured what he described as horrendous emotional suffering. He also
    experienced withdrawal symptoms from the drugs to which he was addicted.

[7]

He retained as counsel the lawyer who had acted for him on previous
    occasions over the preceding three and a half years. On April 7, counsel
    reviewed with him the Crowns pre-trial screening form which contained a
    resolution offer of a guilty plea to robbery and 15 months in jail, less credit
    for pre-trial custody.

[8]

The appellant says that he instructed counsel to immediately accept this
    offer, and then make a bail application to get the appellant released from
    custody.

[9]

Counsel says that he advised the appellant to accept the offer, but that
    the appellant was fixated on getting bail. He insisted that a bail application
    be made first, so that he could be released. Counsel concluded this was so he
    could get the drugs he so badly needed. Counsel says this was consistent with
    instructions he had received from the appellant in previous cases.

[10]

On
    April 12, a bail hearing was scheduled for April 15. On April 13, counsel
    received a revised pre-trial screening form withdrawing the first offer and
    proposing a four-year sentence on the basis that a BB gun is a firearm. Counsel
    advised the appellant of this new Crown position.

[11]

Thereafter,
    following discussions between counsel and the Deputy Crown Attorney, and on written
    instructions from the appellant, it was agreed that the appellant would plead
    guilty to simple robbery followed by a joint submission for 30 months in prison
    in addition to pre-trial custody. That is what unfolded on May 14. The trial
    judge accepted the joint submission and imposed that sentence.

[12]

The
    appellant says he received assistance of counsel that was ineffective in three
    ways.

[13]

Two
    are simply disposed of. The appellant says that counsel failed to advocate for
    a return to the original offer once it was revoked. In our view, given the
    facts, and the four-year minimum sentence required for the offence charged, it
    is hard to see that advocating return to the withdrawn offer had any prospect
    of success. Counsel cannot be criticized for not doing so, but rather moving
    forward to negotiate down from the Crowns revised position.

[14]

The
    appellant also criticizes counsel for failing to argue for a reduced sentence
    because of the inadequate medical treatment received by the appellant in
    custody. We do not agree. Having successfully negotiated the Crown down to the
    joint submission, counsel could hardly have advocated a further reduction on
    this basis.

[15]

The
    appellants main complaint is that counsel failed to follow his instructions to
    immediately accept the Crowns original offer and only then apply for bail. To
    succeed in this argument, the appellant first must establish these facts on a
    balance of probabilities.

[16]

In
    our view, the appellant cannot do so on this record. The appellant says he gave
    those instructions. Counsel is equally clear that he did not, but insisted on
    bail being sought as a very first step.

[17]

In
    our view, counsels version is strongly supported by the appellants
    acknowledgement that because of his condition, he was suffering severe physical
    pain and horrendous emotional stress together with withdrawal symptoms from the
    drugs to which he was addicted. In light of this, his firm preoccupation with
    obtaining his release before anything else is entirely understandable. We
    therefore find counsels evidence more credible.

[18]

As
    a result, we need not deal with the legal issues raised in Ms. Davies able
    argument, which depend on a finding that counsel failed to follow instructions
    in not immediately accepting the Crowns first offer.

[19]

The
    appeal must be dismissed.

Released: November 5, 2012 (S.T.G.)

S.T. Goudge J.A.

Paul Rouleau J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dinh, 2012
    ONCA 812

DATE: 20121123

DOCKET: C51834

Doherty and LaForme JJ.A. and Glithero J. (
Ad
    Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Duc Xuan Dinh

Appellant

David Wilson, for the appellant

Mary Henschel, for the respondent

Heard and released orally: November 16, 2012

On appeal from the conviction entered on November 21,
    2009 by Justice J. A. Ramsay of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was charged as a party to the offences of robbery (theft
    while armed with an offence weapon), aggravated assault, and assault with a
    weapon. These charges arose out of an event in which four men set upon two
    others in an apartment stairwell while armed with baseball bats and possibly a
    machete.

[2]

The four stole the money from the two victims who were known to be
    carrying a significant amount of cash as a result of an arrangement made
    between them and the appellant in which the appellant would sell them 10 cell
    phones.

[3]

The Crown theory was that the appellant knew of the plan to take the
    money from the victims and led the victims into the apartment knowing what was
    waiting for them. The jury convicted the appellant of the two robbery charges,
    one in respect of each victim.  Given that the trial judge did not charge on
    the objective component of s. 21(2) (ought to have known), the jury must have
    been satisfied beyond a reasonable doubt that the appellant knew of the planned
    theft and that the thieves would be armed.

[4]

During the robbery the two victims received significant injuries
    resulting from the use of the weapons. The appellant was convicted of the two
    counts of aggravated assault as the jury was necessarily satisfied that he knew
    of the plan to cause the victims some degree of physical harm. The appellant
    was found not guilty of the two counts of assault with a weapon, one in respect
    of each victim.

[5]

The ground of appeal at issue here is whether the verdicts of guilty of
    aggravated assault can stand together with the verdicts of not guilty on the
    charges of assault with a weapon. The appellant argues that they are
    inconsistent.  We dont agree.  It is for the jury to determine the facts. As
    long as it was reasonably possible for the jury to determine a set of facts
    based upon the evidence which supports the differing results here in terms of
    verdicts, then there is no reason to interfere.

[6]

We are of the view that it was open to the jury to conclude that the
    appellant knew of the thefts while armed with offensive weapons; knew that some
    degree of injury would be a likely result in any effort to relieve the two
    victims of their cash and yet not be satisfied beyond a reasonable doubt that he
    knew that it was probable that the plan involved the actual use or threatened
    use of the weapons during the taking of the money. The charge to the jury left
    open this possibility as did the decision tree provided to the jury. There was
    no objection taken to either.

[7]

For these reasons the appeal is dismissed.

Doherty
    J.A.

H.S. LaForme J.A.

C. Stephen Glithero J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Edwards, 2012
    ONCA 842

DATE: 20121129

DOCKET: C54559 and C54628

Goudge, Rouleau
    JJ.A., and Ray J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Ki-Shawn Edwards and Du-Shane Edwards

Appellants

Robert Sheppard, for the appellant Du-Shane Edwards

Dale Ives, for the appellant Ki-Shwan Edwards

Greg Skerkowski, for the respondent

Heard: November 26, 2012

On appeal from the sentence imposed on August 18, 2011 by
    Justice Gregory A. Pockele of the Ontario Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the trial judge erred in principle by in essence dismissing
    the sentencing principles of specific deterrence and rehabilitation. He did so
    for erroneous reasons.

[2]

Contrary to what he said, rehabilitation and specific deterrence were
    both, in our view, relevant to this crime and this offender.

[3]

It falls to us therefore to impose sentence. There is no doubt this was
    a serious offence  a variety store robbery with planning and violence although
    no weapon. However, these were two youthful first time offenders with strong
    family support for whom these offences appear to be out of character. Moreover,
    they pleaded guilty immediately.

[4]

In our view the appropriate global sentence for each is two years less a
    day taking account of pretrial custody, the proper sentence to be imposed is
    357 days. We note they have been in custody for longer than that as of today.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Fulton, 2012
    ONCA 781

DATE: 20121116

DOCKET: C54633

Juriansz, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Fulton

Appellant

Catriona Verner, for the appellant

Michelle Campbell, for the respondent

Heard: May 28, 2012

On appeal from the sentence imposed on June 8, 2011 by
    Justice M.L.D. Roberts of the Ontario Court of Justice.

ENDORSEMENT

[1]

This is an appeal against sentence. The appellant pleaded guilty to two
    counts of uttering threats and one count each of aggravated assault, possession
    of a weapon for a dangerous purpose, and mischief. The sentencing judge designated
    the appellant a long-term offender (LTO). She sentenced the appellant to nine
    years in custody for the predicate offences and imposed a ten-year supervision
    order.

[2]

The appellant disputes the LTO designation, the length of the term of
    supervision, and the sentence for the predicate offences. We would allow the
    appeal against the LTO designation.

[3]

On January 28, 2008, the appellant stabbed the complainant, his former
    girlfriend, who had recently broken up with him. The appellant entered her
    apartment surreptitiously to retrieve belongings and, after she confronted him
    and started to hit him with her fists, he stabbed her repeatedly with a scuba
    knife that he had strapped to his calf.  He stabbed her three times in the
    chest and twice in the back. The complainants wounds were life threatening and
    she suffered a collapsed lung. After the complainant escaped, the appellant
    barricaded himself in her apartment and engaged in a 12-hour standoff with
    police. He destroyed the complainant's belongings, threatened to set the
    building on fire, threatened to stab a police officer, and suggested to his
    friend over the phone that he might kill himself. When the Emergency Task Force
    entered the apartment, he was found to be groggy and was armed with several
    knives and a baseball bat. At the time, the appellant was dependent on, and had
    used, opioids.

[4]

The appellant has a criminal record. He was convicted in 1999 of
    unrelated property offences. In 2002, the appellant took his former
    girlfriends car without her permission, which led to a police chase. He was
    convicted of a series of offences arising from the incident, including
    conspiracy to commit an indictable offence, taking a motor vehicle without
    consent, fleeing while being pursued by police, and theft over $5,000.

[5]

The most significant offences for the purpose of this appeal occurred in
    2003. In January 2003, the appellants former girlfriend had broken up with him
    and she refused to return his belongings. The appellant purposefully damaged
    her vehicle, broke a window in her residence, and threw a flaming rag into the
    house while his former girlfriend and her mother were in the house at the
    window watching him. At the time, the appellant was on probation and subject to
    a condition that he not contact the former girlfriend. The appellant was
    convicted of arson with disregard for human life, uttering threats, mischief,
    and failure to comply with his probation order.

[6]

In her detailed reasons, the sentencing judge found that the appellant
    satisfied the criteria for a dangerous offender (DO) under s. 753(1)(a)(ii)
    of the
Criminal Code
, but went on to find there was a reasonable
    possibility of eventual control of the risk he posed to the community.
    Therefore, she designated him an LTO.

[7]

The appellant submits that there are two errors in the sentencing
    judges analysis. First, she erred in finding that the appellant met the DO
    criteria. Second, she failed to consider whether, in addition to meeting the DO
    criteria, the appellant also met the requirement under the LTO provisions that
    the appellant posed a substantial risk to reoffend. We agree.

[8]

In finding the appellant satisfied the DO criteria, the sentencing judge
    relied on two aggressive incidents. She considered the predicate offences,
    including the aggravated assault, and the appellants behaviour with respect to
    the January 2003 offences.

[9]

These two incidents satisfied the sentencing judge beyond a reasonable
    doubt that the appellant had exhibited a pattern of behaviour. She described
    the pattern carefully. In each case there was a domestic relationship in which
    there was a breakup in progress. Both cases involved a desire on the part of
    the appellant to assert his dominance or his will. Both cases also demonstrated
    a complete disregard for the safety of others and the potential for injury that
    may have occurred. In each case the appellant returned to get something that he
    perceived was his right to do. After both incidents, the appellant threatened
    to harm himself.

[10]

Upon
    making a finding that the appellant had exhibited a pattern of behaviour, the
    sentencing judge stated:

[T]he finding is that the defendant does meet the dangerous
    offender criteria in section 753(1). I must now look at the considerations with
    respect to the long-term offender provisions before I declare the defendant a
    Dangerous Offender.

[11]

However,
    finding that the appellant had exhibited a pattern of behaviour was not enough.
    Under s. 753(1)(a)(ii) of the
Criminal Code
, to find the appellant met
    the DO criteria, the court had to be satisfied that the evidence established a
    pattern of persistent aggressive behaviour by the offender showing a
    substantial degree of indifference respecting reasonably foreseeable
    consequences to other persons. The sentencing judge did not make a finding that
    the pattern of behaviour that she identified was persistent.

[12]

The
    Crown submitted that the sentencing judges analysis supports a finding of
    persistence. Counsel for the Crown argued that the reasons of the sentencing
    judge, read as a whole, make apparent that she had in mind a persistent
    pattern in discussing the existence of a pattern. We do not agree.

[13]

In
    her detailed description of the appellants behaviour in the 2003 and 2008
    offences, the sentencing judge stressed the features that led her to conclude
    there was a pattern. There is nothing to indicate that she separately
    considered whether that pattern was persistent. The circumstances of this case
    required an express discussion of that question.

[14]

In
    this case, the two sets of offences that formed the pattern identified by the
    sentencing judge were separated by some five years. The appellant had not
    exhibited violent behaviour otherwise in his history. The complainant in the
    predicate offences indicated that the appellant had never been violent with her
    before, and the appellant had not been violent while institutionalized. It is
    worth noting that the expert called by the Crown, though weakly suggesting one
    could say there was a pattern in the appellants behaviour, did not address
    whether that pattern was persistent.

[15]

Likewise,
    perhaps because the sentencing judge focused her analysis on whether the
    appellant met the DO criteria, she made no finding that there was a substantial
    risk that he would reoffend. The Crown expert did offer the opinion that there
    was a substantial risk that the appellant would reoffend. That opinion is
    contained in a lengthy passage of his testimony quoted by the sentencing judge.
    However, the judge did not state she was adopting that opinion. We accept the
    appellants argument that the sentencing judge failed to conduct a separate
    analysis of this issue.

[16]

Accordingly,
    we would allow the appeal with respect to the LTO designation.

[17]

We
    do not accept the appellants submission that the nine-year term of
    imprisonment imposed was unfit. The nine-year sentence is within the range for the
    type of aggravated assault that occurred in this case. The appellant had been
    convicted of offences involving violence in the past. The aggravated assault
    took place in a domestic context. He had invaded the complainants home and
    stabbed her repeatedly there. The complainant suffered life-threatening
    injuries.

[18]

We
    would allow the appeal, set aside the LTO designation, and affirm the sentence
    of nine years imposed by the sentencing judge.

R.G. Juriansz J.A.

David Watt J.A.

Alexandra Hoy 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), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of
    the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

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

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

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

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

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

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. J.B.,
    2012 ONCA 805

DATE: 20121120

DOCKET: C55070

Doherty, LaForme JJ.A. and Glithero J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

J.B.

Appellant

Rosalind E. Conway and Anne Marie Morphew, for the
    appellant

Matthew Asma, for the respondent

Heard:  November 16, 2012

On appeal from the convictions entered by Justice Robert
    Smith of the Superior Court of Justice, dated October 5, 2011 and the sentence
    imposed on January 18, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The reasons are adequate as per
R. v. Dinardo
.  They clearly
    identify the basis upon which the trial judge convicted.

[2]

We do not agree that the trial judge misapprehended the evidence.  His
    summary of the complainants evidence in relation to MSN was available on the
    evidence.

[3]

We see no error in his reference to at least one instance in referring
    to the allegation of the complainant.

[4]

The trial judge was entitled to determine the effect, if any, of the
    inconsistencies in the complainants evidence.  He was not obligated to
    conclude that the two inconsistencies relied on by the appellant were
    significant.

[5]

The sentence is not unfit.  The trial judge did consider the impact of
    the bail provisions and we see no reason to disagree with his assessment.

[6]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. James, 2012
    ONCA 760

DATE: 20121108

DOCKET: C54389

Winkler C.J.O., Rosenberg and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn James

Appellant

Jonathan Dawe, for the appellant

Lisa Csele and Sabrina Montefiore, for the respondent

Heard and released orally: October 11, 2012

On appeal from the conviction entered on March 1, 2010
    and the sentence imposed on June 4, 2010 by Justice Michael H. Tulloch of the Superior
    Court, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his sentence of nine years imposed by the trial
    judge for importing 4.1 kg of cocaine.  In our view, the trial judge committed
    no error in principle in arriving at this sentence.

[2]

There is ample evidence to support the trial judges findings that the appellant
     who was 33 at the time  was in a superior position, in the importation
    scheme, to the courier, that the courier  a 19-year old woman on social
    assistance  was vulnerable, and that the appellant organized the importation
    of the drugs.  We are not convinced that the trial judge relied on
    stereotypical assumptions about the relationship between the appellant and the
    courier in finding her vulnerable.

[3]

Given that the appellants role in the importation of the cocaine was greater
    than that of a mere courier and the multi-kilo quantity of cocaine imported,
    the sentence imposed is not demonstrably unfit.

[4]

Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.
    We note that the appellant abandoned his appeal against conviction.

Warren Winkler C.J.O.

M. Rosenberg J.A.

Alexandra Hoy J.A


COUR DAPPEL DE LONTARIO

RÉFÉRENCE :
R. c. Leroux, 2012 ONCA 922

DATE : 20121123

DOSSIER : C55289

ENTRE

Sa Majesté La reine

Intimé

et

Serge Leroux

Appelant

La Cour :

[1]

Lappelant a plaidé coupable à 8 infractions.
    Trois de celles-ci, production de la marihuana, possession en vue du trafic de
    la marihuana et possession en vue du trafic de la cocaïne, relèvent dincidents
    en septembre 2011. Les cinq autres, possession en vue du trafic de la cocaïne,
    possession en vue du trafic de la marihuana, possession en vue du trafic de
    lhuile de la résine de la marijuana, bris de promesse à un agent de paix
    (sabstenir de la consommation des drogues) et bris de promesse à un agent de paix
    (attirails de drogue), relèvent dincidents en février 2012.

[2]

Le juge a imposé une peine de 16 mois en prison,
    conformément à la proposition conjointe qui lui a été présentée par la défense
    et la couronne.

[3]

Lappelant interjette appel de la déclaration de
    culpabilité rendu par la juge et demande lautorisation dinterjeter appel de
    la peine et, si accordée, interjette appel de la peine.

[4]

Pour les motifs qui suivent, nous rejetons lappel.

Exposé des faits

[5]

Le 20 septembre 2011, la police a obtenu un
    mandat de perquisition pour la résidence de lappelant. Ils y ont trouvé deux
    balances numériques, 310 $, du papier coupé pour vendre la cocaïne, de lagent
    coupant, 39 plantes de marihuana, 500g de marihuana, 5g de cocaïne et 4g de
    résine de cannabis. La valeur commerciale totale était à peu près 45,000 $.

[6]

Lappelant a été arrêté, et par la suite, a été
    mis en liberté par une promesse remise à lagent de paix. Les conditions
    incluaient de sabstenir de consommer des drogues, sauf sur ordonnance
    médicale, et de ne pas posséder des attirails de drogue.

[7]

Le 29 février 2012, la police a exécuté un
    nouveau mandat de perquisition pour la résidence de lappelant. Ils y ont saisi
    7g de cocaïne, une balance numérique, une livre de marihuana, plus de deux kg de
    marihuana « shake », plus quun gramme de résine de cannabis et 750 $
    canadien. La valeur commerciale totale était à peu près 5,500 $.

[8]

Le 6 mars 2012, lappelant a plaidé coupable à
    huit chefs daccusation et, conforme à la proposition conjointe présentée par
    la défense et la couronne, la juge a imposé une peine de 16 mois de prison.

Discussion

[9]

Quant à lappel de la déclaration de culpabité,
    lappelant na fourni aucun motif qui pourrait démontrer pourquoi son plaidoyer
    devrait être retiré. Par voie de son avocat, lappelant a admis les résumés de
    faits déposés auprès de la cour. Ces résumés sont amplement suffisants pour
    démontrer que les huit chefs auxquels lappelant a plaidé coupable sont bien
    fondés. Une lecture des transcriptions démontre que le plaidoyer de lappelant
    était volontaire, sans équivoque et informé. Il ny a aucune suggestion que
    lappelant souffre ou souffrait de problèmes intellectuels ou linguistiques qui
    pourraient mettre en doute son plaidoyer.

[10]

En ce qui a trait à la peine, lappelant
    maintient quune peine de 16 mois est excessive et que la peine infligée pour
    chacun des chefs aurait dû être confondue.

[11]

Nous ne pouvons donner effet à ces motifs
    dappel. La peine globale de 16 mois était conforme à une entente. Lappelant
    na pas démontré que cette entente concernant le plaidoyer était contraire à
    lintérêt du public, ni que la peine porterait atteinte à la bonne administration
    de la justice.

[12]

Les motifs de la juge démontrent quen fixant la
    peine pour chaque infraction et en décidant si celle-ci serait confondue ou
    consécutive, elle a tenu compte de la totalité de la peine imposée.

[13]

La juge a tenu compte des circonstances difficiles
    de lappelant, ainsi que du fait quil ait plaidé coupable. Par contre, la juge
    a aussi constaté que lappelant avait un casier judiciaire avec plusieurs
    entrées reliées à la drogue. Ainsi, la juge a indiqué à lappelant que :

M. Leroux, cétait inévitable lorsquon
    regarde votre casier judiciaire, cest inévitable quà un moment donné,
    limposition de la peine allait être de plus en plus sévère. Tout ce que je
    peux dire cest que la seule raison que vous avez seulement, que vous allez
    recevoir seulement que 16 mois aujourdhui cest parce que vous [plaidez] coupable
    à une occasion qui est quand même assez tôt dans le processus. Autrement, vous
    auriez fait face à une période qui friserait le deux ans. Alors, ce nest pas,
    je sais que vous avez deux enfants à la maison et que vous êtes sur des ODSP,
    mais ce nest plus une raison de continuer ce que vous [faites] parce que vous
    ne serez pas présent du tout pour une période si jamais cela se répète.

[14]

À notre avis, la peine était proportionnelle à
    la gravité des infractions commises, à la culpabilité morale de lappelant et
    les conditions de la communauté où ces infractions ont été commises.

Disposition

[15]

Pour les motifs ci-dessus, lappel de la
    déclaration de culpabilité est rejeté, lautorisation dappel de la peine est
    accordée, mais lappel de la peine est rejeté.

« Robert J. Sharpe
    j.c.a. »

« R.A.
    Blair j.c.a. »

« Paul
    Rouleau j.c.a. »

Rendue : le 29 janvier 2013