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    that could identify the complainant or a witness shall not be published in any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. A.D.H., 2015 ONCA 690

DATE: 20151015

DOCKET: C59604

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

BETWEEN

Her Majesty the Queen

Respondent

and

A.D.H.

Appellant

Stephen Whitzman, for the appellant

Dayna Arron, for the respondent

Heard: October 7, 2015

On appeal from the decision of the Summary Conviction
    Appeal Court dated October 17, 2014 by Justice Peter A. Douglas of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on January
    17, 2014 by Justice John D.D. Evans of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of sexually assaulting the complainant, a
    niece of his common-law wife. He seeks leave to appeal from the decision of the
    Summary Conviction Appeal Judge (SCAJ) dismissing his appeal from conviction.
    The appellant submits that the SCAJ committed two errors in his decision.
    First, the SCAJ erred by concluding that there was no air of reality to the
    defence of honest but mistaken belief in consent. Second, and consequently, the
    SCAJ erred by concluding that the trial judge had not erred by failing to turn
    his mind to that issue.

[2]

The complainant and the appellant both attended a party celebrating her
    grandparents 50
th
wedding anniversary. The party ended around 1:00
    a.m. The complainants parents were hosting several of the guests at their home
    overnight, so the complainant drove a group of them, including the appellant, to
    her parents house in a van. When they arrived at the house, the appellant
    remained passed out in the van from his alcohol consumption. The appellant woke
    up in between 3:00 a.m. and 4:00 a.m., and went into the house. The appellant
    went into the complainants bedroom. Initially, it was intended that the
    appellant and his wife would be staying in that room. However, on that night,
    the complainant was sleeping in her bedroom.

[3]

Beyond this point, the evidence at trial relates two different
    scenarios.

[4]

According to the complainant, the appellant entered her room, began
    sexually touching her and then performed oral sex on her. The complainant
    thought she was having a dream. She admitted that her body movements assisted the
    appellant in removing her shorts. The oral sex persisted for about five minutes,
    and caused the complainant to wake up. At this point, the appellant stood up
    and removed his pants. The complainant was then able to identify the man before
    her as the appellant. He put her hand on his penis, but she quickly removed it.
    He then attempted to push her legs apart and she resisted. He continued to push
    on her legs and responded with something along the lines of whats the
    matter? The complainant then jumped out of bed and ran out of the room. The
    complainant testified that she believed the appellant thought she was his wife,
    as they had a similar build and his wife was initially supposed to stay in that
    room.

[5]

At trial, the appellant denied having any sort of sexual interactions
    with the complainant or his wife that night. He says he entered the
    complainants room, thought that the person sleeping in the bed was his wife,
    and fell asleep naked beside her in the bed. The appellant denied that he had
    engaged in sexual activity with anyone believing that she was his spouse.

Trial Judges Decision

[6]

The trial judge found the complainant to be credible and rejected the
    evidence of the appellant. He held that the appellant was guilty beyond a
    reasonable doubt of the sexual assault of the complainant.

[7]

As noted, the appellant denied any sexual contact on the night at issue.
    The defence of mistaken belief in consent was not raised by the appellant. The
    trial judge commented that, because the appellant denied any sexual encounter
    with the complainant, he was not suggesting that he had an honest but mistaken
    belief in consent.

Appeal Decision

[8]

The SCAJ accepted that an accused is entitled to rely upon all alternate
    defences for which a foundation of fact appears in the record. This applies to
    any defence, whether or not raised in submissions by the defence, which has an
    air of reality. To meet the air of reality test, there must be some evidence
    upon which a properly instructed trier of fact, acting reasonably, could acquit
    if it believed the evidence to be true.

[9]

The SCAJ noted that the defence of honest but mistaken belief in consent
    may be available to an accused even though he does not testify that he held
    that belief. However, in this case, the SCAJ concluded that the evidence at
    trial provided no foundation for an air of reality to the defence of honest but
    mistaken belief. The complainants belief as to the appellants state of mind
    was purely speculative. Further, the complainant was not consciously trying to
    assist the appellant in taking off her pants, so this did not go towards
    creating an honest but mistaken belief in consent.

[10]

The
    SCAJ determined that the verdict was reasonable and the trial judge did not
    err.

Analysis

[11]

There
    is no dispute that the SCAJ correctly articulated the air of reality test. Before
    this court, the appellant suggests that a defence based on the appellants
    mistaken identification of the complainant was also available.

[12]

An
    appeal lies to this court, with leave on questions of law alone, pursuant to s.
    839 of the
Criminal Code
. Whether there is an air of reality to a
    defence does raise a question of law.

[13]

As explained in
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d)
    641, at para. 37, leave to appeal will be granted only:

·

Where the merits of a proposed question of law are arguable, if
    not strong, and the issue has significance to the administration of justice
    generally; or

·

Where there appears to be a clear error in the particular case.

[14]

The
    appellant concedes that his appeal does not meet the first branch of the test.

[15]

Furthermore,
    there is no clear error identifiable in the reasons of the SCAJ. As the Alberta
    Court of Appeal pointed out in
R. v. Flaviano
, 2013 ABCA 219, affd
    2014 SCC 14, at para. 46:

[We] accept that the law does not currently require the
    accused's testimony to establish an air of reality to the defence  that it may
    be found in the evidence of other witnesses. However, as the ultimate issue
    requires an assessment of whether the accused honestly held, or may have held,
    such a belief, it obviously may be negated by the testimony of the accused. For
    example, where an accused asserts he had no sexual contact of any kind with the
    complainant, it would be fantasy to speculate that he was lying on that point,
    but to then attribute to him a defence completely incompatible with his
    evidence, namely that he was the assailant but he may have been operating on a
    mistaken belief. [Citation omitted.]

[16]

The
    appellant has not identified any exceptional circumstances which would justify
    a second appeal.

[17]

Accordingly,
    leave to appeal is denied.

Alexandra Hoy A.C.J.O.

K.M. Weiler J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Amare, 2015 ONCA 673

DATE: 20151006

DOCKET: C59440

Strathy C.J.O., MacPherson J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Dawit Amare

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Sarah Shaikh, for the respondent

Heard: September 28, 2015

On appeal from the conviction entered on July 10, 2014
    and the sentence imposed on October 15, 2014, by Justice S. Casey Hill of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of the
    drug MDMA (commonly referred to as Ecstasy) for the purposes of trafficking. He
    was sentenced to a term of four years imprisonment.

[2]

On
the
    afternoon of May 21, 2010, the appellant was arrested at gunpoint after his
    Pathfinder motor vehicle was stopped by police on Dixon Road in the northwest
    area of Toronto.  The appellant was the driver and sole occupant of the Pathfinder
.

[3]

A
search
    of the rear storage area of the vehicle resulted in the finding of a large red
    suitcase. The suitcase contained nearly 100,000 Ecstasy tabs sealed in plastic
    bags. The suitcase also contained several sealed vacuum bags of a white powder.
    It was originally thought by the police to be cocaine. Analysis of the powder
    determined the powder was MDMA, which is the constituent element of Ecstasy.
    The powder weighed 1.9 kilos.  Evidence at trial indicated the value of the
    drugs exceeded $300,000.

[4]

At trial, the appellant sought the exclusion of
    the seized drugs asserting that his s. 8 and s. 9
Charter
rights were contravened. The appellant's trial counsel argued:

(i)

there were no reasonable and probable grounds for  his arrest; and

(ii)

because
    his arrest was arbitrary, the warrantless search incident to arrest was
    unlawful and in breach of his right to be secure against unreasonable search
    and seizure.

[5]

In addition to the
Charter
issue, the appellant's defence was that he had no knowledge or
    control of the drugs seized.

ANALYSIS:

THE
CHARTER
ISSUE

[6]

The
validity
    of the appellant's arrest depended upon information conveyed to the police by a
    confidential informant. It was conceded that, based on the information
    disclosed to police by the confidential informant, the arresting officers had
    an honest, subjective belief that the appellant had committed a criminal
    offence. The contentious and pivotal issue at trial, as it is in this appeal,
    was whether the police had an objective basis to believe the appellant committed
    a criminal offence
.

[7]

The
trial
    judge extensively summarized the governing principles with respect to the existence
    of reasonable and probable grounds for the appellant's arrest.  As the
    underpinning for the grounds to arrest the appellant depended on the
    information given to the authorities by the confidential informant, the trial
    judge identified the
Debot
factors (how compelling was the tip, how
    credible the source, how much was the tip corroborated) and determined that, on
    a totality of circumstances approach, the arrest of the appellant was
    objectively reasonable.  The trial judge ruled that, on a subjective and
    objective basis, reasonable grounds existed justifying the appellant's arrest.
    He further ruled that the police did not act unreasonably in carrying out the
    gunpoint arrest and immediately moving to a valid warrantless search for the
    presence of illegal drugs. In the result, he found there was no breach of the
    appellant's s.8 and s.9
Charter
rights
.

[8]

On appeal, the appellant submits the trial judge erred in his
    determination that objectively discernable facts existed to support his finding
    that there were reasonable and probable grounds for the appellants arrest.
    Counsel argues that the information coming from the confidential informant had
    a thin or sparse evidentiary basis in respect to each of the three
Debot
factors.  She contends that the trial judges analysis lowered the
    requisite standard from reasonable and probable grounds to arrest to one of
    reasonable suspicion to detain
.

[9]

We
do not agree. First, the information
    from the confidential informant was compelling. As a result of this
    information, the police were alerted to expect a drug deal on May 21, 2010.  In
    accordance with this tip, the police had precise details of the target vehicle
    carrying the drugs including the make of the vehicle and its license number. In
    addition, as a result of the tip the police expected the Pathfinder to be
    travelling in the geographic area of Kipling Avenue and Dixon Road in Toronto
    in tandem with a gold Maxima vehicle. We note that the colour discrepancy
    gold and not silver  was minor and was taken into account by the trial judge.
    Moreover, as found by the trial judge, the incremental updating of information
    to the police by the confidential informant supported the inference that the
    informant was speaking from a position of real time and direct sourcing not
    rumour or gossip or fabrication
.

[10]

Second, with
respect to the credibility
    of the confidential informant, it is of importance to note that the
    confidential informant was neither an anonymous tipster nor an untested source.
    The confidential informant worked with his police handler for about a year.
    While the information he provided to the police did not lead to any charges or
    arrest, the confidential informant provided authorities with the names of
    persons involved in organized drug trafficking. Significantly, the confidential
    informant had established a track record for providing accurate information
    that was unique, and without error or exaggeration. Finally, the trial judge
    found it was in the interest of the informant to provide accurate information
    in order to receive compensation and avoid potential prosecution for misleading
    the police
.

[11]

Third,
there existed corroboration to
    support the confidential informants information. The police surveillance
    located the target vehicle with the reported license number in the same
    northwest area of Toronto identified by the confidential informant. The driver
    of the Pathfinder, as reported, was black. As well, the target vehicle was
    travelling in tandem with a Maxima vehicle
.

[12]

In
his analysis, the trial judge
    recognized that greater informational detail with respect to the identity of
    the participants in the drug trafficking enterprise, as well as the type of
    narcotic involved, might have been helpful.  He also took into account that the
    anticipated drug deal did not take place because the police exercised their
    discretion to affect an arrest in order to avoid the risk of losing the target
    vehicle
.

[13]

In
summary, the trial judge correctly
    recognized that the
Debot
factors do not each form a separate test. He
    grounded his decision on a totality of circumstances approach. We see no error
    in his findings.  We would not interfere with the trial judges holding that
    reasonable and probable grounds existed for the appellants arrest
.

THE FINDING OF GUILT

[14]

As
previously noted, the drugs were found
    in the rear compartment of the appellants vehicle. He was the driver and the
    sole occupant. The appellant testified on his own behalf, denying he had any
    knowledge or control over the illegal drugs. The trial judge gave detailed
    reasons for rejecting the appellants evidence as entirely unworthy of belief.
    He found the appellants testimony included confusion, improbabilities and
    inconsistencies and went on to itemize twelve specific problematic areas of
    his testimony. A review of the appellants testimony entirely supports the
    trial judges finding. There is no merit to this ground of appeal
.

APPEAL AGAINST SENTENCE

[15]

As
noted, the appellant had in his
    possession a very large quantity of ecstasy with a projected street value of
    $300,000. Based on the amount of MDMA involved, a finding that this was a large
    scale drug operation is warranted. The trial judge accurately noted that the
    most pressing factors relating to sentence in cases involving the commercial
    distribution of illicit drugs are the protection of the public, general
    deterrence and denunciation. Taking into consideration the harmful
    characteristics of the drug, the fact that it was destined for sale within the
    community, and the size and value of the drugs, we are of the view that the
    sentence of four years imprisonment was neither harsh nor excessive
.

[16]

In the result, the appeal against conviction and
    sentence is dismissed.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

C.M.
    Speyer J. (
Ad Hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Arnaout, 2015 ONCA
714

DATE: 20151026

DOCKET: C56021

LaForme, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adel Mohamed Arnaout

Appellant

David E. Harris, for the appellant

John Neander, for the respondent

Heard: March 26, 2015

On appeal from the convictions entered on June 25, 2010,
    and from the sentence imposed on March 7, 2012 by Justice Todd Ducharme of the Superior
    Court of Justice, sitting without a jury.

ADDENDUM

[1]

This court released its judgment in this appeal on September 30, 2015.
    Counsel for the appellant wrote to the court the same day, noting that the
    reasons did not specifically dispose of count 7  possession of an explosive
    substance  on which the appellant had been convicted.  Counsel for the
    appellant indicated in his post-hearing submissions that, the only argument
    advanced on appeal that could have led to the setting aside of this conviction
    was that the rebuttal of the presumption of integrity ought to lead to all of
    the convictions being set aside and a new trial ordered. Since the court
    rejected this argument, counsel for both the appellant and the respondent
    presume that the conviction on count 7 stands. We agree with this assessment.
     Accordingly, the appeal from conviction on count 7 is dismissed.

H.S.
    LaForme J.A.

"David Watt
    J.A."

"Gloria Epstein
    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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Blake, 2015 ONCA 684

DATE: 20151007

DOCKET: C58677

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jomo Blake

Appellant

Amy Ohler and Lynda Morgan, for the appellant

Lorna Bolton, for the respondent

Heard: September 11, 2015

On appeal from the conviction entered on April 26, 2013
    by Justice Guy P. Di Tomaso of the Superior Court of Justice, sitting with a
    jury.

MacPherson J.A.:

A.

Introduction

[1]

The appellant, Jomo Blake, was convicted of one count of sexual
    interference relating to a 15-year old complainant following a jury trial
    presided over by Di Tomaso J. of the Superior Court of Justice. During the
    trial, the trial judge made a ruling relating to the voluntariness of the
    appellants statements to police and the sufficiency of police compliance with
    their obligation to inform the appellant of his right to counsel. The appellant
    appealed this ruling. At the conclusion of the hearing, the panel indicated
    that the appeal would be dismissed, with reasons to follow. These are the
    reasons.

B.

Facts

(1)

The parties and events

[2]

The complainant reported that she had been sexually assaulted by the
    appellant, a family friend. She said that the appellant began touching her
    sexually when she was 13 or 14 years old. Sometimes she would babysit at the
    appellants home; on a few occasions she slept over. The complainant told the
    police that she and the appellant had sexual intercourse during these overnight
    visits.

[3]

Shortly after the complainant made her statement to the police, the
    police arrested the appellant at his workplace. When he was arrested, the
    appellant said I know what this is about. He stated that he understood his
    right to counsel and said that he wanted to contact his wife so that she could
    call a lawyer.

[4]

During the car ride to the police station, the appellant asked again to
    speak to his wife to arrange for a lawyer. Detective Constable Jason Stamp
    testified that his partner Detective Kevin McLean asked if the appellant or his
    wife had a lawyer. When the appellant said No, Detective McLean told the
    appellant that he could contact duty counsel at the police station.

[5]

Detective McLean did not recall that conversation but said that the
    appellant made a spontaneous statement in which he said: I heard Im not the
    first one. I heard her father did it to her.

[6]

Detective McLean stated that, once they arrived at the station, the
    appellant wanted to consult with duty counsel. The booking officer noted that
    the appellant wished to speak to duty counsel. The appellant arrived at the
    station at 1:25 p.m. and was placed in a cell. At 2:35 p.m., he was taken to a
    private area to speak, by telephone, to duty counsel. The conversation lasted
    until 2:47 p.m.

[7]

Before the appellants police interview began, the appellants wife
    arrived at the police stations front desk. The appellant was told that she had
    arrived and he asked Detective McLean to ask his wife to contact a lawyer.
    Detective McLean testified that he relayed this request and, when the wife said
    that she didnt know any lawyers, he told her that duty counsel was available.

[8]

The appellant was interviewed by Detective McLean from 4:31 p.m. to 6:17
    p.m. The appellant agreed that he had been given an opportunity to speak to
    duty counsel. He said that he knew of the allegation against him and denied
    ever touching the complainant sexually.

[9]

At 5:06 p.m., the appellant again asked to call his wife to get a
    lawyer. Detective McLean said that the appellant could call a lawyer again if
    he wanted to, but also told the appellant that new information had come to
    light (from the complainants family) regarding assaults on the appellants children.
    This line of questioning lasted for about five minutes, at which point
    Detective McLean said that the Childrens Aid Society would be investigating
    the allegations the next day.

[10]

Detective
    McLean then suggested to the appellant that this sexual contact with the
    complainant had been consensual. He stated: if you had consent, then you had
    consent and Im going home. At the
voir dire
, Detective McLean
    acknowledged that this statement was not true. After this line of questioning,
    and as Detective McLean was ending the interview, the appellant said that he
    wanted to go home to his wife and children and confessed to having sexual
    intercourse with the complainant on one occasion:

DCM: Would that  did you have consensual sex?

JB:     Yes we have consensual sex.

DCM: On Saturday night.

JB:     Yes.

(2)

The trial judges ruling

[11]

At
    the trial, a blended
voir dire
was held to consider whether the
    appellants statements to the police were voluntary and whether his rights
    pursuant to ss. 7, 10(a) and 10(b) of the
Charter of Rights and Freedoms
were violated. The trial judge ruled that the appellants statement was
    voluntary and that he had not been deprived of his right to counsel.

[12]

The
    appellant appeals these rulings.

C.

Issues

[13]

The
    appellant raises three issues on the appeal:

(1)

Did the trial judge err by
    concluding that the appellant was not denied his right to counsel of choice
    under s. 10(b) of the
Charter
?

(2)

Did the trial judge err by
    concluding that the appellants s. 10(b) right to counsel was not violated when
    Detective McLean introduced allegations of potential child abuse into the
    interview with the appellant?

(3)

Did the trial judge err by finding
    that the confession was voluntary?

D.

Analysis

(1)

Right to counsel

[14]

The
    purpose of the right to counsel is to provide the accused with legal advice and
    to ensure that the accused understands his or her right to silence: see
R.
    v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-26;
R. v.
    Willier
, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 38. Police have a duty
    to facilitate access to a lawyer immediately and that includes the right to
    contact counsel of choice as well as the right to contact a third party to
    facilitate access to counsel: see
R. v. Taylor
, 2014 SCC 50, [2014] 2
    S.C.R. 495, at para. 24;
R. v. K.W.J.
, 2012 NWTCA 3, at paras. 32-33.

[15]

The
    appellant contends that the police officers did not facilitate his wish to
    contact his wife so that she could obtain a lawyer for him.

[16]

I
    do not accept this submission. This issue was not raised at trial. The trial
    judge found as fact that the appellant wished to speak to duty counsel and did
    so before his interview with the police. The appellant made no complaint about
    the advice he received and he clearly understood his right to silence.

[17]

In
    any event, it was appropriate for Detective McLean to ask the appellant if he
    or his wife had a lawyer; this would be required information if the officer was
    going to assist the appellant in contacting a specific lawyer.

[18]

Finally,
    I do not think that Detective McLean attempted to deflect the appellants
    attention away from the retention of a private lawyer and towards consultation
    with duty counsel. He was simply trying to obtain sufficient information to be
    able to comply with his constitutional obligation to assist the appellant in
    his desire to obtain legal advice. The detectives references to the duty
    counsel option were consistent with this goal: see
R. v. McCrimmon
,
    2010 SCC 36, [2010] 2 S.C.R. 402, at para. 19.

(2)

New jeopardy

[19]

The
    appellant contends that a second s. 10 (b)
Charter
breach occurred when
    the appellant was not afforded an opportunity to re-consult with counsel after
    Detective McLean informed him that there might be an allegation that he had
    abused his own children.

[20]

Section
    10(b) of the
Charter
affords an accused a single consultation with
    counsel. However, in some instances, a further opportunity to consult with
    counsel may be required where a change in circumstances necessitates a second
    consultation to fulfil the purposes of s. 10(b). One of the main instances in
    which an opportunity of a second consultation is required is where the accused
    faces a change in jeopardy. As explained by McLachlin C.J. and Charron J. in
Sinclair
,
    at para. 51:

The detainee is advised upon detention of the reasons for the
    detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel
    follows this. The advice given will be tailored to the situation as the
    detainee and his lawyer then understand it.  If the investigation takes a new
    and more serious turn as events unfold, that advice may no longer be adequate
    to the actual situation, or jeopardy, the detainee faces. In order to fulfill
    the purpose of s. 10(b), the detainee must be given a further opportunity to
    consult with counsel and obtain advice on the new situation.

[21]

In
    my view, the conversation between the appellant and Detective McLean during the
    interview did not rise to a level that required a second s. 10(b) offer to the
    appellant.

[22]

A
    leading case on the duty of police to re-advise detainees of their rights
    during an interview/statement scenario is this courts decision in
R. v.
    Sawatsky
(1997), 35 O.R. (3d) 767. In that case, this court held that the
    police must reiterate the right to counsel if they ask questions that go beyond
    an exploratory stage in connection with a related but significantly more
    serious offence or a different or unrelated offence. See also
R. v. D.T.
,
    2013 ONCA 166, 305 O.A.C. 58, at para. 28.

[23]

Detective
    McLeans conduct in his interview with the appellant does not come close to
    crossing the line drawn in
Sawatsky
and
D.T.
On this point, I
    explicitly endorse the trial judges reasoning in his
voir dire
ruling:

During Mr. Blakes interview, Detective McLean raised the issue
    of a separate investigation that police and the Childrens Aid Society were
    going to be jointly looking into regarding Mr. Blakes children. On behalf of
    Mr. Blake it is submitted that he was effectively threatened with other
    charges in relation to the abuse of his child or children for which he faced
    new jeopardy and regarding which he should have been advised of his rights once
    more to speak to counsel. I do not agree.

I do not accept that there is an evidentiary foundation upon
    which to find that this reference to a separate investigation involving the
    Childrens Aid Society and Mr. Blakes children was in any way a threat in
    relation to the allegations currently before the court. Detective McLean did
    not in any way threaten Mr. Blake with separate charges if he did not confess
    to the allegations before the court. Mr. Blake was never told that he would be
    facing any further charges. Quite to the contrary, at that point in time, the
    investigation had not even commenced.

I do not accept that Mr. Blake faced an inquiry or elevated
    jeopardy in respect of the Childrens Aid Society investigation which could
    cause him to feel threatened in respect of very different charges before this
    court. There was no
quid pro quo
 on the evidentiary record before
    this court that would in any way suggest that if Mr. Blake did not confess to
    the offences for which he had been charged involving [the complainant], then,
    he would face an entirely new and separate set of charges involving the abuse
    of his children.

(3)

Voluntariness

[24]

The
    appellant submits that by raising child abuse allegations, Detective McLean created an atmosphere of oppression.  The appellant also submits that the trial judge erred by failing to conclude that the appellant's confession was unreliable because it flowed from Detective McLean's disingenuous description of the legal consequences of consensual sex with a minor.

[25]

I
    do not accept that raising a child abuse allegation created an atmosphere of
    oppression. That line of questioning lasted for less than five minutes. It did
    not create oppressive conditions or cause him to confess. His will was not
    overborne.

[26]

There
    is no doubt that Detective McLean introduced, and even pressed, the issue of
    consensual sex during his interview with the appellant:

DCM: So thats what Im talking about, consent, you understand
    all that. And  that explains a lot to me if that is the case.

DCM: Im saying if you  had consent then you had consent and
    Im going home.

DCM: But my whole thing is if this is consent

JB:     Yeah.

DCM:  its consent and that would explain everything, then I
    can go back and talk to them.

JB:     You know what?

DCM: And Ill be back and let them know my update.

[27]

In
    my view, this line of questioning did not cross the line into improper police
    inducement. Detective McLean testified, and the trial judge accepted in his
    ruling, that his intention in adopting this approach was to reduce the moral
    blameworthiness of the appellants acts, making it easier for him to tell the
    truth about what had happened.

[28]

Importantly,
    Detective McLean did not tell the appellant that the charges would be dropped
    if the sex with the complainant was consensual. Indeed, when the appellant
    asked him a question about consensual sex, Detective McLean replied: When two
    people, two adults have consensual sex theres no charge.

[29]

Finally,
    I note that the appellant testified at his trial. During cross-examination,
    this exchange occurred:

Q.      Im going to suggest to you that you admitted that you
    did it when you thought it wasnt a crime.

A.      No.

Q.      Thats the only reason you broke down

A.      No.

Q.      because you believed that it wasnt illegal to have
    sex with a 15 year old so you thought you were off the hook.

A.
I know its illegal to have sex with a 15 year old
and I never had sex with a 15 year old.                                                                               [Emphasis
    added.]

[30]

In
    summary, I do not think that Detective McLeans language during the consent
    component of the interview amounted to an improper inducement.

E.

Disposition

[31]

I
    would dismiss the appeal.

Released: October 7, 2015 (K.F.)

J.C. MacPherson J.A.

I agree. K. Feldman J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Downes, 2015 ONCA 674

DATE: 20151006

DOCKET: C55711

Strathy C.J.O., MacPherson J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Royan Downes

Appellant

Maria Gaspar, for the respondent

John J. Navarette, for the appellant

Heard: September 28, 2015

On appeal from the conviction entered on February 16,
    2011, and the sentence imposed on September 1, 2011, by Justice Peter Daley of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted by a jury of importing cocaine. He was
    sentenced to six years imprisonment. The appellant appeals both conviction and
    sentence.

The Mistrial Application

[2]

The single ground of appeal in respect of conviction arises out of the
    trial judges refusal to declare a mistrial after a complaint from one or more
    jurors. On the third day of the trial, immediately following the morning health
    break, the trial judge, in the absence of the jury, advised counsel of a
    concern expressed to a court services officer that one or more members of the
    jury had observed the appellant looking at them from the second level of the
    front lobby area of the Brampton court house. The circumstances of this
    encounter are straight forward. The jury had been instructed by court staff to
    assemble on the lower level of the court house near the front entrance. The
    specific concern expressed to the court officer was that having seen the
    appellant looking at them from an upper tier, the jurors did not wish to
    encounter the appellant during the trial in the hallways or in the building.

[3]

Appellants trial counsel, not Mr. Navarette, apologized to the trial
    judge, explaining she had arranged to meet her client prior to court at the
    place where he was observed by jury members. The trial judge told trial counsel
    there was no need to apologize, and requested that any future meeting with her
    client take place in a more discrete area of the court house. The trial
    continued.

[4]

Later in the morning, just prior to lunch, trial counsel requested a
    jury instruction clarifying the earlier encounter between the appellant and
    jury. The trial judge agreed. He explained to the jury the circumstances of what
    had occurred; that is, that counsel had made an earlier, planned arrangement
    with her client to meet at the designated spot on the second level. However, in
    order to assuage the jury of any concern about a breach of the no-contact order
    in respect of participants in the trial, as provided in his opening
    instructions, the judge told the jury that future arrangements had been made
    between counsel and the appellant to meet elsewhere in the court house. No
    objection was taken to this clarifying instruction and the trial continued.

[5]

Following the luncheon recess, after consulting with the appellant over
    the break, counsel brought a mistrial application. The basis for the
    application was the appellants concern that the jury has placed him in a bad
    light as a result of that interaction, albeit innocent on his part, and that
    in the circumstances, the jury could not decide the case fairly.

[6]

The trial judge declined to order a mistrial.  In his reasons, the trial
    judge reviewed the circumstances giving rise to the issue, and stated he took
    the jurys concern to have arisen from his instructions to the jury that they
    avoid contact with any person involved in the trial and not to wait in the
    hallways in the court house building. He then referred to the governing principles
    relating to mistrials as set out in the leading case of
R. v
.
Burke
,

[2002] 2 S.C.R. 857 at para. 75
, and concluded that in the
    circumstances, there was no real danger of prejudice to the appellant or of a
    miscarriage of justice.

[7]

The appellant argues he was denied a fair trial on the basis that there
    existed a reasonable apprehension of bias on the part of a juror or jurors. He
    asserts that the trial judge erred by not conducting an inquiry of all the
    jurors to flesh out their concerns. It is contended it was speculation on the
    judges part that the concern arose from his order not to have contact with any
    person involved in the trial.

[8]

We disagree with appellants submissions for three reasons. First, the
    incidental and innocuous encounter of the appellant with the jurors did not
    give rise to a need that an inquiry be held. Nor did trial counsel for the
    appellant request an inquiry. Second, the clarifying instruction provided by
    the trial judge clearly explained to the jury the innocent reason for the
    proximity of the appellant to jury panel members. Again, trial counsel took no
    issue with it. Third, the trial judge was in the best position to assess the
    impact of the incident on the jury. He accurately stated the law in respect to
    mistrials and concluded there was no real danger of prejudice, or prospect of a
    miscarriage of justice. The exercise of his discretion in arriving at this
    conclusion is entitled to deference.

Sentence

[9]

The appellant was sentenced to six years imprisonment for his role in an
    enterprise to smuggle 2.1 kilograms of cocaine into Canada. The appellant
    concedes that that the appropriate range of sentence for a first time offender,
    absent exceptional circumstances, is six to eight years. See
R. v.
    Cunningham
, [1996] O.J. No. 448 (Ont. C.A.) at para. 29. The appellants
    complaint is that the sentence he received violates the principle of parity of
    sentencing. It is contended it does so because two other offenders involved in
    the same cocaine smuggling scheme were given conditional sentences following
    pleas of guilty. In each case, the sentence imposed followed a joint
    recommendation by crown and defence counsel.

[10]

The parity principle is a principle of fairness. Its purpose
    is designed to ensure a sentence is similar to sentences imposed on similar
    offenders for similar offences committed in similar circumstances. However, as
    this court stated in
R. v. Courtney,
2012
    ONCA 478 at para. 4
:

The parity principle does not
    require that all co-accused be subject to the same sentence, or even that they
    be treated similarly for sentencing purposes. On the contrary, disparate
    sentences for different offenders, for the same offence, do not violate the
    parity principle so long as they are warranted by all the circumstances. See

R. v. Ipeelee
,

[2012] S.C.J. No. 13
, at paras.
    78 to 79,

per

LeBel J.

[11]

We
    are of the view that the sentence imposed on the appellant does not violate the
    parity principle. Indeed, the sentence imposed on the overseer of this drug
    smuggling enterprise was 10 years imprisonment for his role in the operation
    following a plea of guilty. The other two participants who received conditional
    sentences played a more subordinate role than the appellant in the criminal
    enterprise. In the case of the courier, Nicola Morgan, she co-operated with
    authorities, pled guilty, and testified as to the appellants participation.
    Similarly, the second individual who received a conditional sentence played a
    more limited role with respect to the drug importation scheme.

[12]

In
    assessing the appropriate sentence, the trial judge took into account the major
    role played by the appellant, the significant amount of cocaine imported and
    the detrimental impact of the importation of cocaine on society. We see no
    error in the sentence.

[13]

The
    appeal from conviction and sentence is therefore dismissed.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

C.M.
    Speyer J. (
Ad Hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Du, 2015 ONCA 715

DATE: 20151026

DOCKET: C59981

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jiayu Du

Appellant

Fredrick R. Schumann, for the appellant

Cindy Afonso, for the respondent

Heard and released orally: October 20, 2015

On appeal from the decision of the Summary Convictions
    Appeal Court dated December 12, 2014 by Justice Thomas A. Bielby of the
    Superior Court of Justice, allowing the appeal from the sentence imposed on February
    4, 2014 by Justice Theo Wolder of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of two offences under the
Customs Act
R.S.C.
    c. 1 (2nd Supp.).

[2]

The summary conviction appeal judge found that the sentencing judge
    erred in law when, as part of his reasons for sentence, he stated:

The respondent did not deliberately fail to pay the duty owed.

[3]

In our view, the sentencing judge made no legal error. He was responding
    to the submissions of crown counsel and the response of defence counsel to the
    issue of whether the accused had planned and deliberated her conduct and
    whether to treat that as an aggravating factor on sentence.

[4]

The summary conviction appeal judge misapprehended this finding by the
    sentencing judge by treating it as misunderstanding by him of the
mens rea
requirement of the offences.

[5]

As the summary conviction appeal judge made a clear error of law, which
    reflected a failure to give deference to trial judges knowledge of the law, we
    grant leave to appeal, set aside the decision of the summary conviction appeal
    judge and restore the sentence imposed by the trial judge.

[6]

The appellant also asks this court to stay one of the convictions on the
Kienapple
principle. This was not done at trial. The Crown opposes
    this submission. In those circumstances and as the sentence imposed is a
    conditional discharge, we decline to give effect to that submission.

K. Feldman J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Durette, 2015 ONCA 668

DATE: 20151001

DOCKET: C58222

Doherty, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Durette

Appellant

Bernadette Saad, for the appellant

Stephen Dawson, for the respondent

Heard:  September 25, 2015

On appeal from the convictions entered by Justice Mulligan
    of the Superior Court of Justice, dated August 26, 2013.

APPEAL BOOK ENDORSEMENT

[1]

There are three issues.

(i)

Was the Crown required to disclose the O.P.P. Protocols in reference to
    confidential informants (CIs) upon request of the defence prior to trial?

[2]

We need not determine whether the O.P.P. protocols were properly treated
    as first party or third party records for the purpose of disclosure.  We will
    assume they were first party records.

[3]

In our view, the protocols were not relevant when the defence sought
    production. They were potentially relevant to the s. 8 challenge to the search
    warrant depending largely on the trial judges ruling as to the
    cross-examination of the affiants.  In our view, the trial judge did not err in
    declining to order disclosure prior to the brining of the s. 8 motion.  Any
    determination of the relevance of the material at that time would have been
    premature.  We make no comment on the potential relevance of the material to
    the s. 8
voir dire
and, in particular, on the cross-examination of the
    officers.

(ii)

Was the search warrant properly granted?

[4]

Counsel recognizes the standard of review and argues that on the
    material as amplified on the voir dire, there was no basis upon which a
    justice, acting reasonably, could have issued the warrant.  We disagree.  The
    information could reasonably be viewed as compelling (direct evidence of drug
    dealing from two sources) and there was some confirmation of the evidence
    provided by the CIs.  We do not accept that the discrepancies in the affidavit
    could justify a finding that the affiant deliberately misled the justice of the
    peace.

(iii)

Did the evidence justify a finding of possession?

[5]

There was ample evidence from which the trial judge could make the
    factual findings necessary for a finding of possession. Counsel, quite
    properly, acknowledges that the trial judge did not misapprehend the evidence.

[6]

The appeal is dismissed.


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. Howell, 2015 ONCA 728

DATE: 20151029

DOCKET: C55558

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aston Howell

Appellant

Erika Chozik, for the Appellant

Lisa Joyal, for the Respondent

Heard:  October 21, 2015

On appeal from the conviction imposed on February 3, 2012, by
    the Honourable Madam Justice K. Corrick of the Superior Court of Justice,
    sitting without a jury.

ENDORSEMENT

[1]

We are grateful for section 684 counsels
    thorough and careful preparation of this appeal.  Notwithstanding her very able
    submissions, we are not persuaded that there was a miscarriage of justice
    because the performance of the appellants trial counsel was not ineffective
    and did not undermine the appearance of a fair trial or the reliability of the
    verdict:
R. v. J.B.
, [2011]
    O.J. No. 2322 (C.A.), at para. 2;
R. v. Joanisse
, [2011] O.J. No. 2322 (C.A.), at para. 69.

[2]

As both counsel fairly acknowledged, the evaluation
    of counsels performance is not a standard of perfection or hindsight but of
    reasonableness:
R. v. Joanisse
,
    at para. 71.

[3]

The credibility of the complainant was a
    key issue in this case.  It is clear from the trial transcript that the
    appellants trial counsel cross-examined the complainant on the most material
    inconsistencies and frailties in her testimony which evolved over time.  The
    trial judge referenced these inconsistencies in her Reasons for Judgment,
    including the very significant omissions from and additions to the
    complainants police statement that the complainant told the appellant to use a
    condom and the appellants ejaculation.

[4]

Further, in accordance with the
    submissions of the appellants trial counsel, the trial judge rejected the
    Kents evidence, which, if accepted, would have served to corroborate important
    aspects of the evidence of the complainant and her sister concerning the presence
    of chickens and the nature of the ritual baths that they testified took place
    in the appellants apartment and that the appellant denied.

[5]

The purpose of appellate inquiry into an
    allegation of ineffective assistance of counsel is not to grade counsels
    performance:
R. v. J.B.
, at
    para. 6.  That the appellants trial counsel could have asked more questions, or
    that the submitted defences did not succeed, does not mean that counsels
    representation of the appellant was ineffective or that the verdict would have
    been different.  We are of the view that it would have made no difference in
    this case
.

[6]

The trial judge was alerted to the most serious deficiencies and
    discrepancies in the complainants evidence, was alive to a possible motive to
    fabricate because of the complainants application to the Criminal Compensation
    Board, was aware of the potential for collusion between the complainant and her
    sisters, and fully understood the appellants denial that the offences had ever
    occurred.

[7]

The trial judges positive assessment of
    the complainants evidence and her negative assessment of the appellants
    testimony did not depend on the fact that not every detail of the appellants
    evidence was put to the complainant.  In the circumstances of this case, it was
    not necessary and would have been confusing and unhelpful for appellants
    counsel to put the appellants conflicting versions of events to the
    complainant without knowing exactly what the appellant would say when he
    testified.

[8]

On the issue whether trial counsel
    undermined the appellants credibility by failing to comply with the rule in
Browne
    v. Dunn
(1893), 6 R. 67 (H.L.(Eng.)) when
    cross-examining the complainant, the appellants trial counsel submitted on
    several occasions in his closing and in response to the trial Crowns position
    in her closing that he had complied with the rule in
Browne v. Dunn
.  The trial judge did not find that the appellants trial
    counsel had breached it.

[9]

The trial judges acceptance of the
    complainants evidence was primarily based on the credible manner in which the
    complainant gave her evidence and its corroboration by and consistency with
    other evidence, including importantly, in response to the appellants defense
    of identity, the appellants significant admissions that he had previously met
    the complainant and that she had come to his apartment.

[10]

Similarly, the principal reasons for the trial judges
    rejection of the appellants evidence were the manner and content of the
    appellants testimony over which his counsel had little control.  As the trial
    judge concluded: I did not find Mr. Howell to be a credible witness.  He did
    not give his evidence in a forthright manner.  He was not responsive to
    questions. He often made no sense.  The trial judges assessment of the witnesses
    is entitled to considerable deference.

[11]

Finally, we reject the submission that the appellants
    trial counsel fell below the standard by asserting the alternative defenses of
    consent or honest but mistaken belief in consent, when the appellant denied any
    sexual contact.  We note that the appellants previous trial counsel, who died
    before the trial and with whom the appellants trial counsel had articled and
    continued to work from time to time, had indicated following the preliminary
    hearing and the judicial pre-trial that consent was the main defense.  The
    assertion of the alternative defenses was a strategic decision by trial counsel
    following the appellants problematic trial testimony.  Although there were
    legal and factual problems with this position, in a judge-alone trial, there
    would have been no prejudice to the appellant in the circumstances of this
    case.

[12]

As a result, we find that there was no miscarriage of
    justice in this case.  There was no trial unfairness to the appellant and the
    reliability of the trial judges verdict was not undermined by the
    representation of the appellant by his trial counsel.  The appellants trial
    counsel was not ineffective.

[13]

We admit and have considered the appellants fresh
    evidence.

[14]

For these reasons, the appeal is dismissed.

K. Feldman J.A.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kee, 2015 ONCA 730

DATE: 20151029

DOCKET: C57462

Strathy C.J.O, Lauwers J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Hyon Woo Kee

Appellant

Scott Bergman and Benjamin Elzingacheng, for the
    appellant

Amy B. Rose, for the respondent

Heard:  October 1, 2015

On appeal from the judgement of Justice Bruno Cavion of
    the Ontario Court of Justice, dated April 2, 2013 affirming the conviction
    entered on June 22, 2012 by Justice of the Peace J. Jackson.

Lauwers J.A.:

[1]

At the conclusion of oral argument, the appeal was dismissed with
    reasons to follow. These are those reasons.

A.

Context of
    the Appeal

[2]

The facts are not in dispute.  From his patrol vehicle stationed on the
    left shoulder of the three-lane highway, the charging officer observed the
    appellant, Hyon Woo Kee, driving at a high rate of speed moving eastbound on
    the Fred Gardiner Expressway in Toronto, Ontario. The posted speed limit was
    100 km/h. The charging officer clocked the appellants motor vehicle moving
    154 km/h while the vehicle was in the middle lane, using a radar device known
    as the BEE III Automatic Same Direction Traffic Radar (the BEE III),

[3]

The officer pulled the appellant over and charged him with speeding and
    stunt driving, contrary to ss. 128 and 172(1) of the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8 (
HTA
),

respectively.

[4]

The trial justice was satisfied with the charging officers evidence and
    found the appellant guilty on both counts.  At the request of the prosecutor,
    the speeding charge was stayed. The trial justice did not have the
    Manufacturers Operation and Service Manual for the BEE III
Automatic
    Same Direction Traffic Radar (Canadian Version)

(the
    Manual) before him.  On appeal, Cavion J. admitted the entire Manual as fresh
    evidence on consent.

[5]

This appeal turns on the proper interpretation of a single phrase in the
    Manual:

ASD (Automatic Same Direction) technology allows the operator
    to select lane of traffic to monitor in stationary mode: in the same lane as
    the patrol vehicle or the opposite lane, or in both lanes. (
p.
    15)

[6]

The appeal judge interpreted the disputed provision, having regard to
    the Manual as a whole, in favour of the Crown. In the absence of evidence to
    the contrary, he determined that the radar devices reading was accurate and
    reliable, and dismissed the appeal:
R. v. Kee
, [2013] O.J. No. 6455
    (C.J.).  His interpretation was diametrically opposite to the one reached in
R.
    v. Chaudhry
, [2012] O.J. No. 3919 (C.J.).

[7]

MacFarland J.A. granted leave to appeal to this court under s. 139 of
    the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (
POA
) on
    the following grounds:

There are two appellate decisions of the Ontario
    Court of Justice which have considered the language used in the Operation and
    Service Manual for the BEE III Automatic Same Direction Traffic Radar (Canadian
    Version) and come to opposite conclusions.

In my view, it is in the interests of the
    administration of justice that this conflict be resolved.

[8]

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

[9]

I begin with reviews of the decisions of the
    trial justice and the appeal judge. I then turn to the Crowns fresh evidence
    application, and the analysis of the issues.

B.

THE DECISION OF THE JUSTICE OF THE PEACE

[10]

At trial, the appellant was self-represented and
    did not lead any evidence or testify.  He cross-examined the charging officer
    on his qualifications, training, familiarity with the BEE III, and standard
    operating procedures.

[11]

The charging officer testified that: he was
    trained and qualified to use the BEE III device; he tested the device before
    his shift and found it to be in proper working order; the device self-tests
    every 20 minutes; and, he tested the device at the end of his shift and again
    found it to be in proper working order.

[12]

The officer testified to the facts set out above.
    His evidence at trial was that the appellant drove his grey Honda Civic aggressively,
    moving in and out of traffic, switching between the far right and the middle
    lanes. When the appellants vehicle was about 30 yards back from the patrol
    vehicle, the officers BEE III radar device locked in on the appellants motor
    vehicle and recorded that it was moving at 154 km/h in a 100 km/h zone in the
    middle of three lanes. The officer testified that when the appellants vehicle
    passed the patrol vehicle, he saw the front of the appellants vehicle dip
    sharply and rear brake lights come on, signifying that the appellant applied
    the brakes with force.

[13]

The trial justice accepted the
    evidence of the charging officer as credible and admitted the evidence
    regarding the BEE III reading as reliable and accurate. He found that both
    charges were proven beyond a reasonable doubt.  At the request of the Crown,
    the speeding charge was stayed. The trial justice sentenced the appellant to
    pay a $3,000 fine, as requested by the Crown keeping in mind the principles of
    denunciation and deterrence

C.

THE DECISION OF THE APPEAL JUDGE

[14]

As noted, the appeal judge admitted the entire Manual
    on consent, and the appeal turned on the interpretation of the disputed phrase,
    reproduced here for convenience:

ASD (Automatic Same Direction) technology allows the operator
    to select lane of traffic to monitor in stationary mode: in the same lane as
    the patrol vehicle or the opposite lane, or in both lanes.

[15]

The appellant, assisted by an agent, argued that the disputed phrase
    meant that, when the patrol vehicle is stationary, the BEE III can only be used
    to detect the speed of motorists if it is located in the same lane of traffic
    as the patrol vehicle, or in the adjacent lane. Since the patrol vehicle was on
    the shoulder of the road, and the appellants vehicle was at least two lanes
    away, the appellant submitted that the charging officer could not have been operating
    the BEE III in accordance with the manufacturers specifications. The appellant
was not in the same lane as the patrol vehicle or the opposite lane
which he had to be, since the officer was

in
    stationary mode, according to a strict reading of the disputed provision. The
    appellant relied on
Boivin J.s decision in
Chaudhry
as authority for his proposed interpretation.

[16]

In
Chaudhry
Boivin J. stated, at para. 6:

The fact that the officer acknowledged the
    manufacturer guidelines, and disagreed with them, and his suggestion that they
    are absurd cannot constitute evidence that the machine was operated in
    accordance with the guidelines such that I can rely on this reading, when done,
    in contravention with those guidelines. The radar device is a precision
    instrument and reliance on such can only be done if it is operated in
    accordance with manufacturer guidelines.

[17]

Boivin J. concluded at para. 7 that the speed
    reading was not reliable because the BEE III device was not, operated in a
    lane, which the manufacturer says the operation should be conducted in.
Boivin J. allowed the appeal and entered
    an acquittal.

[18]

Relying on
Chaudhry
and the evidence, the appellant argued that the BEE IIIs speed
    reading obtained by the officer did not satisfy the exception to the hearsay
    rule and could not lead to a conviction.

[19]

The appeal judge declined to follow the decision
    in
Chaudhry
, stating at para. 13, that if
    Boivin J.
had had the opportunity to
    review the entire Manual, and had he been advised of these sections, I am
    confident he would have decided differently.

[20]

The appeal judge found, at para.10, that the
    appellants rigid interpretation is not accurate and that such an
    interpretation makes the instrument impractical to use on stationary mode on
    any busy highway. Reading the Manual as a whole, the appeal judge interpreted
    the disputed phrase to mean that the operator can select whether to monitor
    traffic coming towards or moving away from the stationary patrol vehicle:
    para.12.

D.

FRESH EVIDENCE ON APPEAL

[21]

The Crown seeks the admission of fresh evidence
    on this appeal to assist this courts resolution of this ambiguity in the
    meaning of the disputed provision, and in reconciling the conflicting
    conclusions reached in the decision below and in
Chaudhry
.  The proffered evidence is a
short affidavit from John H. Broxon II, the current
    president of MPH Industries (the manufacturer of the BEE III).  Mr. Broxon
    is an electrical engineer who was a member of the team who drafted the Manual. His
    affidavit sets out the intended meaning of the disputed phrase, and affirms the
    BEE IIIs technical capacity to monitor the middle lane of a multi-lane highway
    from a stationary position on the side of the road.

[22]

Where it is in the
    interests of justice to do so, this court is entitled to receive and admit
    fresh evidence pursuant to ss. 117(1)(d) and 134 of the
POA
. The well-established principles
    enunciated by the Supreme Court of Canada in
Palmer v. The Queen
, [1980] 1 S.C.R. 759,

govern the
    courts decision under s. 117(1)(d) of the
POA
:
R. v. 1275729 Ontario Inc.
, [2005] O.J. No. 5515 (C.A.) at paras.
    19-21.

[23]

The proffered evidence is relevant and credible,
    but I would not admit it, on the ground that the admission of the evidence
    would not have affected the result.

[24]

The Crown admits
the proffered evidence would not have affected the
    result at trial (where the question addressed by the fresh evidence was not
    before the trial justice) or the appeal decision. However, the Crown suggests
    that the proffered evidence affirms the appeal judges interpretation,
    undermines the appellants claim that the officer failed to comply with the
    manufacturers guidelines in this case, underscores the reasonableness of the
    verdict at trial, and resolves the conflict in the jurisprudence. The Crown
    argues that its probative value in the context of this appeal is overwhelming.

[25]

The Supreme Court of
    Canada has specifically cautioned courts against an expansion of
the
Palmer
criteria
:
R. v. Levesque
, 2000 SCC 47, [2000] 2 S.C.R. 487, at
    para. 18.
I do not agree with the appellant that failure
    to satisfy the fourth branch of the
Palmer
test
    literally, by demonstrating that the proffered evidence would
reverse

the outcome at trial, is always fatal to a fresh evidence
    application. However, this is not a case in which I would admit it by exception.
    The proposed fresh evidence is simply unnecessary.

E.

Analysis

[26]

The appellants argument proceeds in two steps.
    First, the appellant submits that the appeal judges interpretation of the
    disputed provision in the Manual is wrong; second, that being so, he submits
    that the speed data produced by BEE III on which the charging officer relied is
    not reliable and cannot sustain a conviction, because there has not been strict
    compliance with the Manual. In view of my decision on the first issue,
    concerning the interpretation of the Manual, I would not address the second.

THE INTERPRETATION
    OF THE DISPUTED PROVISION

[27]

The appellant argued,
    as he did in the first appeal, that a reasonable interpretation of the provision
    is that the BEE III can only be used to monitor traffic travelling in the same
    lane as the stationary patrol vehicle or in the directly adjacent lane. This
    flows from the language of the Manual, which I repeat here for convenience:

ASD (Automatic Same Direction) technology allows the operator
    to select a lane of traffic to monitor in stationary mode: in the same lane as
    the patrol vehicle or the opposite lane, or in both lanes. (
p.
    15)

[28]

The appeal judge
    interpreted the disputed provision in light of the entire Manual. He found, at
    para. 12 of his decision: The BEE III can monitor traffic both coming and
    going towards a stationary patrol car parked on the shoulder of the highway.
In support of this conclusion, the appeal judge quoted two passages
    from the Manual that indicate the BEE IIIs capacity to monitor traffic moving
    in the same
direction
or the opposite
direction
, at paras. 10-11:

On page 2 of the Manual, it says:

ASD (Automatic Same
    Direction technology) allows the BEE III to automatically measure the speeds of
    targets moving in the same direction as the patrol vehicle ASD allows the
    radar to measure the speed of targets moving in one direction while completely
    ignoring targets moving in the opposite direction.

Also, on page [6], the Manual states:

In stationary mode,
    you can select the direction of target you want to monitorthe radar will
    measure the speed of targets moving in both directions, just like a manual
    radar will. As soon as a target is measured, the radar will tell you the
    direction that the vehicle is travelling in addition to the speed that it is
    travelling.

[29]

While the appellant
    concedes that the appeal judges interpretation might be reasonable, he argues
    that the appeal judge did not have sufficient evidence before him to make such
    an interpretation.

[30]

I disagree. Reading the
    Manual as a whole, the appeal judge had sufficient evidence to support his
    interpretation.  In addition to the provisions the appeal judge relied on
    specifically, the Manual also states at p. 17:

In stationary mode, the Mode window works
    similarly. Indicators appear in front of or behind the patrol vehicle icon to
    indicate the selected antenna. If the opposite lane of traffic is selected,
    only the arrow in the left lane lights. If the same lane of traffic is
    selected, the arrow in the right lane lights.
If both

directions

are selected
,
arrows in both

lanes

light
.  [Emphasis added.]

And, at p. 6:

Now, press the Same button on the remote. You
    will notice that the
arrow corresponding to the patrol cars

lane

is illuminated
.
This indicates that the radar will only measure the
    speed of vehicles

moving in that
    direction
(moving away from the patrol vehicle on
    the front antenna and approaching the patrol vehicle on the rear antenna).  The
    radar will only measure the speeds of vehicles
moving in the
same
    direction
as the patrol car, regardless of whether there
    is a stronger vehicle
moving in the opposite direction
.

Now press the Opposite (Opp) button on the
    remote. You will notice that the
arrow moves over to the

other lane of traffic
in
    the Mode window. In this mode, the
radar will only display the speed
    of vehicles

moving in that direction
(moving toward the patrol vehicle on the front antenna and away
    from the patrol vehicle on the rear antenna). Like in the previous case, the
    radar will only measure the speeds of vehicles
moving in

that lane of traffic
regardless of whether there is a stronger vehicle
moving in the

other lane of traffic
.

You
can toggle between the

lane
you want to measure
by pressing the Same and Opp keys.  If you want t
o go back to
monitoring

both directions of traffic
, you must press the Mov/Sta key twice. [Emphasis in original
    removed. Emphasis added.]

[31]

In these excerpts, the word lane or phrase
    lane of traffic are used interchangeably with the word direction, all of
    which refer to the direction in which the monitored traffic is moving, which
    supports the appeal judges interpretation. There are various other, similar
    references to lane and direction throughout the Manual that I do not
    reproduce in full here. Taken together, these provisions establish, as the
    appeal judge found, that the BEE III can be used to monitor traffic moving in
    either direction, or both from a stationary roadside position. There is no
    requirement that the patrol vehicle be stationary in the same, live lane of
    traffic that it is monitoring in order to comply with the Manual.

[32]

The appellant further submits that the BEE III
    can only be used to monitor traffic in the immediately adjacent lane to the
    stationary patrol vehicle. Again, I disagree.  The appellant has not identified
    anything in the Manual that supports this interpretation.  In fact, the Manual
    does not explicitly caution that the BEE III can only be used to monitor
    specific lanes (not directions) of traffic in proximity to the patrol vehicle. The
    Manual repeatedly refers to the BEE IIIs capacity to distinguish between the
    strongest and fastest targets moving in the same direction while in
    stationary mode, which indicates that the device has the capacity to monitor
    multiple traffic lanes and focus on the fastest moving vehicle across those
    lanes.

[33]

The appellant has not demonstrated any error in
    the appeal judges interpretation of the Manual.  The contrary interpretation
    of the disputed phrase in
Chaudhry

is
    erroneous.

F.

DISPOSITION

[34]

I
    would dismiss the appeal.

Released: October 29, 2015 GS

P.
    Lauwers J.A.

I
    agree G. R. Strathy C.J.O.

I
    agree C.M. Speyer J. (
ad hoc
)