COURT OF APPEAL FOR ONTARIO

CITATION: Ontario
    (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc.
    (Famous Flesh Gordon's), 2013 ONCA 157

DATE: 20130318

DOCKET: C55984

Goudge, Cronk and Armstrong JJ.A.

BETWEEN

Registrar, Alcohol and Gaming Commission of
    Ontario

Appellant

and

751809 Ontario Inc. operating as Famous Flesh
    Gordons

Respondent

Scott C. Hutchison, for the appellant

Richard Posner, for the respondent

Heard: February 7, 2013

On appeal from the order of the Divisional Court (Justice
    Wilton-Siegel, Justice Swinton and Justice Sachs), dated April 24, 2012.

Goudge
    J.A.:

Introduction

[1]

Robert Barletta is a full patch member of the Hells Angels.  He was a
    founding member of the London, Ontario chapter when it was established in 2003,
    and was its president at least until 2008.

[2]

He has no record of criminal convictions or infractions of the
Liquor
    Licence Act
, R.S.O. 1990, c.L. 19 (the Act). Nor is he facing any outstanding
    charges.

[3]

Mr. Barletta is also the owner of an establishment operating in London
    as Famous Flesh Gordons. He received a liquor licence for this establishment
    in 2001 and has operated it ever since.

[4]

In 2010, the Registrar of the Alcohol and Gaming Commission of Ontario (the
    Commission) applied to the Board of the Commission to revoke his liquor
    licence. As the Board put it, the sole issue was whether Mr. Barlettas
    membership in the Hells Angels was, in itself, sufficient to strip him of the
    privilege of holding a liquor licence.

[5]

On September 22, 2011, the Board concluded that it was not. On May 15,
    2012, the Divisional Court dismissed the Registrars appeal. With leave, the Registrar
    appeals to this court.

[6]

For the reasons that follow, I would allow the appeal and refer the
    Registrars application back to the Board to be dealt with in accordance with
    these reasons.

The Proceedings Below

[7]

The Registrars application to revoke was made pursuant to s. 15(1) of
    the Act. It permits the Registrar to make an application on any ground under s.
    6(2) that would disentitle the licensee to a licence in the first place. The
    ground advanced here by the Registrar is found in s. 6(2)(d) of the Act:

6(2)    Subject to subsection (4) or (4.1), an
    applicant is entitled to be issued a licence to sell liquor except if, [...]

(d)     The past or present conduct of the persons
    referred to in subsection (3) affords reasonable grounds for belief that the
    applicant will not carry on business in accordance with the law and with integrity
    and honesty.

[8]

The facts before the Board were uncontested. In addition to Mr.
    Barlettas history with the Hells Angels, and as operator of Famous Flesh
    Gordons, there was evidence about the Hells Angels as an organization. It is a
    criminal organization as defined in s. 467.1 of the
Criminal Code
,
    although being a member is not a crime. The organization has both written and
    unwritten rules. It is an unwritten rule that no member shall ever give a
    statement to the police or give any information that could betray the Hells
    Angels. A member would not testify regarding the operation of a bar or any
    criminal activities within it. Criminal activity by members is common. Sixty-seven
    point two percent (67.2 %) of all Ontario members have been convicted of a criminal
    offence. Indeed one of the main purposes or activities of the organization is
    the facilitation or commission of serious criminal offences.

[9]

The uncontested evidence clearly framed the fundamental issue as the
    Board defined it: Is Mr. Barlettas membership in the Hells Angels (referred to
    as the HAMC by the Board), sufficient, in itself, to revoke his liquor
    licence? Perhaps understandably, the Board viewed this as a test case.

[10]

The
    Board set out the task before it at paragraphs 54 and 55 of its reasons:

54.     More particularly, the Board has to resolve whether Mr.
    Barlettas membership in the HAMC provides the reasonable grounds for the
    Registrars belief that the Licence should be revoked.

55.     The onus lies upon the Registrar to prove his case on
    the balance of probabilities. Since the Registrar seeks the more significant
    remedy of revocation rather than suspension of the Licence, the evidence
    tendered in proof must be particularly compelling. While in the result the
    Licensees liberty will not be denied, finding the Licensee to be in violation
    of clause 6(2)(d) would deprive him of his livelihood or business, which is a
    serious matter.

[11]

In
    dismissing the Registrars application, the Board ultimately concluded at
    paragraphs 138 and 139:

138.   Here, where there is not a hint of impropriety on Mr.
    Barlettas part
in operating the licensed establishment
, it would be
    improper for the Board to conclude that there is a risk of non-compliance such
    as would justify the revocation of the Licence. The evidence proves that Mr.
    Barletta is conducting his establishments business in the fashion as is
    required by the regulatory laws, despite his membership in the HAMC. [Emphasis
    in the original.]

139.   Put differently, the Board believes that this Licensee
    has not shown himself to be ungovernable as the holder of a liquor licence. As
    such, the Registrar has also not established that the Licensee presents a risk
    to the public, its interest or its safety.

[12]

At
    the time of the Boards decision, s. 11(2) of the
Alcohol and Gaming
    Regulation and Public Protection Act
,
1996
, S.O. 1996, c. 26,
    provided for an appeal from the Boards decision to the Divisional Court, but
    only on a question of law.

[13]

The
    Registrar appealed to the Divisional Court. The Registrar argued that the Board
    erred in law in two ways. First, the Registrar said that the Board applied a
    higher standard of proof than the reasonable grounds for belief standard
    called for by s. 6(2)(d). Second, the Registrar argued that the Board erred in
    not applying properly the test in s. 6(2)(d), namely, whether past or present
    conduct afforded reasonable grounds for belief that Mr. Barletta will not carry
    on business in accordance with the law and with integrity and honesty.

[14]

The
    Divisional Court dismissed the Registrars appeal. It concluded that the Board
    applied the correct standard of proof. The court supported this conclusion by
    referring to several occasions in the Boards reasons such as paragraph 54
    quoted above, where the Board recited the reasonable grounds for belief
    standard of proof. The Divisional Court also concluded that the Boards
    language made clear that it indeed applied the test prescribed by s. 6(2)(d).
    The Board used paragraph 139 quoted above as support for its conclusion.

Analysis

[15]

In
    this court, the Registrar reiterates the two arguments dealt with by the
    Divisional Court and adds a third: the Registrar says that if the right
    standard of proof were used and the test called for by s. 6(2)(d) were properly
    applied, revocation of Mr. Barlettas licence would be the inevitable outcome
    on these facts. Any other outcome would be unreasonable.

[16]

The
    respondent, on the other hand, says that the Divisional Court read the Boards
    decision correctly, that the Board did not err in either the standard of proof
    or the test required by s. 6(2)(d) of the Act and that the result that the
    Board reached was reasonable.

[17]

The
    parties agree that if the Registrar succeeds in this court on either of the
    first two issues but not the third, the application to revoke should be
    remitted to the Board for a rehearing. In addition, the Registrar contends that
    success on the third issue ought to result in an order revoking Mr. Barlettas
    liquor licence.

First Issue: Did the Board apply the proper standard of proof?

[18]

The
    standard of proof provided by s. 6(2)(d) of the Act is that of     reasonable
    grounds for belief. There is no doubt that this is a lower standard of proof than
    balance of probabilities. The Supreme Court of Canada made that clear in
Mugesera
    v. Canada (Minister of Citizenship and Immigration)
, [2005] 2 S.C.R. 100,
    which dealt with this standard, one commonly used in regulatory statutes, in
    the context of the Immigration Act. The court said this at para. 114:

The FCA has found, and we agree, that the reasonable grounds
    to believe standard requires something more than mere suspicion, but less than
    the standard applicable in civil matters of proof on the balance of
    probabilities:
Sivakumar v. Canada (Minister of Employment and
    Immigration)
, [1994] 1 F.C. 433 (C.A.), at p. 445;
Chiau v. Canada
    (Minister of Citizenship and Immigration)
, [2001] 2 F.C. 297 (C.A.), at
    para. 60.  In essence, reasonable grounds will exist where there is an
    objective basis for the belief which is based on compelling and credible
    information:
Sabour v. Canada (Minister of Citizenship & Immigration)
(2000),
    9 Imm. L.R. (3d) 61 (F.C.T.D.).

[19]

As
    applied to this case, s. 6(2)(d) of the Act requires the Registrar simply to
    show that Mr. Barlettas past or present conduct provides
reasonable
    grounds

for belief
that he will not carry on business in
    accordance with the law and integrity and honour. The Registrar does not have
    to go so far as to show that Mr. Barlettas past or present conduct make it
more
    likely than not
that he will not carry on business as required.

[20]

With
    respect, I disagree with the Divisional Courts view that the Board applied the
    lower standard of proof. Rather, it read the reasonable grounds for belief
    standard as meaning proof on a balance of probabilities.

[21]

Paragraph
    54, one of those on which the Divisional Court relies for its conclusion on
    this issue, is followed immediately by paragraph 55, which makes that clear. It
    is useful to quote these two paragraphs again:

54.     More particularly, the Board has to resolve whether Mr.
    Barlettas membership in the HMAC provides the reasonable grounds for the
    Registrars belief that the Licence should be revoked.

55.
The onus lies upon the Registrar to prove his case
    on the balance of probabilities
. Since the Registrar seeks the more
    significant remedy of revocation rather than suspension of the Licence, the
    evidence tendered in proof must be particularly compelling. While in the result
    the Licensees liberty will be denied, finding the Licensee to be in violation
    of clause 6(2)(d) would deprive him of his livelihood or business, which is a
    serious matter. [Emphasis added.]

[22]

If
    more were necessary, the Board repeats the balance of probabilities
    requirement several more times in deciding what it must find.  In para. 70 for
    example, the Board said this:

70.     Specifically, in order to strip this Licensee of its
    Licence, the Board must find, on the balance of probabilities and based on the
    evidence before it, that the requirements under clause 6(2)(d) have been
    compromised.

[23]

There
    is thus no doubt that the Board applied a higher standard of proof than s.
    6(2)(d) calls for. It read s. 6(2)(d) as requiring proof on the balance of
    probabilities. This is an error of law. Moreover, it is an error on a question
    of law of general importance to the legal system, one which is outside the area
    of expertise of the Board as an administrative decision maker. Hence, the
    Boards choice of standard of proof cannot attract any deference in this court.
    See:
Dunsmuir v. New Brunswick
, [2005] 1 S.C.R. 190 at paragraph 55.
    The Boards choice must be reviewed on a standard of correctness. The choice
    was incorrect.

[24]

I
    would therefore conclude that the Divisional Court erred in finding that the
    Board applied the correct standard of proof in this case.

Second Issue: Did the Board apply the test called for by s.
    6(2)(d)?

[25]

The
    Registrars application to revoke Mr. Barlettas liquor licence required the
    Board to apply the test in s. 6(2)(d) of the Act. It is helpful to reiterate
    its provisions:

6(2)    Subject to subsection (4) or (4.1), an
    applicant is entitled to be issued a licence to sell liquor except if, [...]

(d)     The past or present conduct of the persons
    referred to in subsection (3) affords reasonable grounds for belief that the
    applicant will not carry on business in accordance with the law and with
    integrity and honesty.

[26]

This
    test entails an examination of the past and present conduct of the person
    seeking to acquire or maintain the privilege of carrying on an activity authorized
    by the state, namely a licensed establishment. The purpose of the examination
    is to see if there are reasonable grounds for belief that the person will, in
    future, carry on the activity in a way that is not contrary to the public
    interest. Many regulatory statutes use this approach.

[27]

The
    question is whether the Board misconstrued this test in this case. The
    Divisional Court found that it did not. With respect, I disagree, for three
    reasons.

[28]

First,
    in examining Mr. Barlettas past and present conduct, the Board focussed on his
    conduct as a licensee. The Boards penultimate paragraph dealing with his past
    and present conduct makes this clear:

138.   Here, where there is not a hint of impropriety on Mr.
    Barlettas part
in operating the licensed establishment
, it would be
    improper for the Board to conclude that there is a risk of non-compliance such
    as would justify the revocation of the Licence. The evidence proves that Mr.
    Barletta is conducting his establishments business in the fashion as is
    required by the regulatory laws, despite his membership in the HAMC. [Emphasis
    in the original.]

[29]

The
    difficulty is that there is no such limiting language in the subsection. The
    Registrar is entitled to rely on any past or present conduct, whether in the
    operating of the licensed establishment or not, that affords reasonable grounds
    for belief that the individual will not carry on business as required by s.
    6(2)(d). The words of the subsection, past or present conduct, are not
    limited to the operation of the business or in any other way. Their ordinary
    and grammatical meaning, in the context of legislation that is designed to
    ensure that licensed establishments will be operated by those who can be
    counted on to properly serve the public interest, requires that past and
    present conduct not be confined to the individuals operation of the licensed
    establishment.

[30]

Second,
    the Board appeared to require evidence of past criminal activity by Mr.
    Barletta in order to find past conduct supporting revocation. The Board put it
    this way at paragraph 100:

100.   Importantly, mere membership in a criminal organization,
    in itself, is not a criminal offence. Thus, the Registrar must substantiate the
    (alleged) criminal activity undertaken by the Licensee in order to invoke the
    past conduct provisions.

[31]

Once
    again, there is no such limitation in the test. Both the plain language and the
    purpose of the legislation make that clear. Past conduct that is not criminal
    could also provide the necessary reasonable grounds for belief.

[32]

Third,
    in exploring the way in which Mr. Barletta has carried on and will carry on the
    business of his establishment, the Board focused on whether or not he is
    ungovernable, that is, whether he has observed and will observe the regulatory
    laws governing a licensed establishment.  Paragraphs 138 and 139 quoted above
    make this clear. With respect to both the past and the future, there is no such
    limitation in the legislation. The Board can look beyond Mr. Barlettas past or
    present observation of the regulatory laws for his establishment. Moreover the
    requirement that he carry on business in future in accordance with the law and
    with integrity and honesty is not limited to complying with the regulatory laws
    applicable to licensed establishments. It is too narrow to look merely at his
    future compliance with regulatory laws. Compliance with the law generally and
    acting with integrity and honesty are not so limited.

[33]

In
    these three ways, the Board erred in limiting the analysis required by s.
    6(2)(d) in ways that the legislation does not provide. The Divisional Court
    erred in finding that it did not.

[34]

I
    conclude that the Board erred in law in its interpretation of s. 6(2)(d) of the
    Act. It may be that if this case is seen as an interpretation by the Board of
    its home statute, it may be owed some deference in this court. That need not be
    decided here because, even if that is so, my view is that the Boards erroneous
    interpretation of the test does not fall within a range of possible acceptable
    interpretations, given the plain language of the section and the clear purpose
    of the legislation. It is not a reasonable interpretation of the legislative
    test. It is outside any margin of appreciation that deference requires.

Third Issue: If the Board had proceeded correctly, is
    revocation the only reasonable conclusion that the Board could have reached?

[35]

The
    Registrar argues that if the Board had used the proper standard of proof and
    applied the proper test, revocation would have been the only result that the
    Board could reasonably have reached on these undisputed facts.

[36]

I
    do not agree. There is no doubt that the evidence about the Hells Angels as a
    criminal organization, with its troubling code of conduct, and Mr. Barlettas
    role in the organization, was clear. However, so was the fact that, while a
    member, he had apparently acted lawfully, with honesty and integrity, and had
    operated his licensed establishment properly for almost ten years.  While Mr.
    Barlettas association with the Hells Angels is in our view powerful evidence
    pointing that way, I cannot say that revocation is the only reasonable
    conclusion the Board could reach on a proper application of s. 6(2)(d). I would
    therefore reject this argument.

[37]

In
    summary, I would conclude that the Divisional Court was in error. The Board
    erred in law in using an erroneously high standard of proof and in misconstruing
    the test for revocation required by s. 6(2)(d) of the Act. The appropriate
    remedy is to allow the appeal and remit the Registrars application to revoke
    to the Board for reconsideration in accordance with these reasons.

[38]

Costs
    to the appellant fixed in the sum of $5,000 in full.

Released: March 18, 2013 (S.T.G.)

S.T. Goudge J.A.

I agree. E.A. Cronk J.A.

I agree. Robert P. Armstrong
    J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Perron c. Perron, 2013 ONCA
    174

DATE : 20130321

DOSSIER : C51977

Les juges Blair, Rouleau et Hoy

ENTRE

Monique Denise Perron
    (maintenant Waring)

Requérante (Intimée)

et

Joseph Ferdinand Dave Perron

Intimé (Appelant)

Mark Power, François Larocque et
    Jo-Anne Thibodeau, pour lappelant

Aaron Franks, Michael Zalev et Kathryn
    Junger, pour lintimée

Date de laudience : le 27 mars 2012

En appel de lordonnance du juge Alan C.R.
    Whitten de la Cour supérieure de justice en date du 8 mars 2010, avec motifs publiés
    à 91 R.F.L. (6
e
) 110.

INSCRIPTION

[1]

Le 23 novembre 2012, la cour a rejeté lappel
    dans cette affaire et a demandé aux parties de soumettre leurs observations sur
    la question des dépens. Suite à la réception de celles-ci, nous devons
    maintenant trancher la question des dépens.

[2]

Lappelant maintien que, malgré le fait que
    lappel a été rejeté, il a eu gain de cause sur la question critique :
    limportance qui doit être accordée à la langue dinstruction des enfants lors
    de la détermination de la garde. Par contre, ayant conclu que le juge de
    première instance a erré en nabordant pas pleinement la question de la langue
    dinstruction des enfants, la cour a dû tenir compte aussi du fait que, depuis
    la décision de la cour de première instance, les enfants sont demeurés inscrits
    à lécole dimmersion pour trois ans additionnels. Cest pour cette raison, que
    de concert avec les autres préoccupations exprimées par le juge de première
    instance, que nous avons rejeté lappel. Malgré les avantages quune
    instruction homogène en langue française aurait pu avoir pour les enfants, un
    changement décole ne pourrait pas, à ce point-là, être dans lintérêt des
    enfants. Par conséquent, il ny avait pas de cause pour accorder lappel et de remettre
    la question pour être jugée de nouveau en première instance.

[3]

Selon lappelant, il serait donc approprié de
    lui accorder ses dépens sur la base de lindemnisation partielle fixés à 35.000 $.
    Subsidiairement, lappelant demande que les parties paient leurs propres
    dépens.

[4]

Pour sa part, lintimée maintien quelle a eu
    gain de cause puisque lappel a été rejeté. Ainsi, elle devrait se voir accorder
    ses dépens sur la base de lindemnisation partielle fixés au montant de 25.000
    $. Lintimée ajoute que plusieurs moyens dappel soulevés dans lavis dappel
    ont été retirés à la dernière minute. Ceci a fait en sorte quelle a dû
    encourir des frais juridiques importants pour répondre à des moyens dappel qui
    navaient aucune chance de réussite.

[5]

À notre avis, la règle habituelle devrait être
    suivie dans linstance. Lappel a été rejeté et lintimée a droit à des dépens.
    Par contre, nous devons tenir compte du fait que lappelant a eu un certain
    succès, en ce quil a démontré que le juge de première instance a commis une erreur
    importante. À notre avis, il est donc approprié de réduire quelque peu le
    montant de dépens à être accordé à lintimée.

[6]

Pour ces motifs, nous accordons à lintimée ses
    dépens sur la base de lindemnisation partielle fixés au montant de 20,000 $. Le
    15.000 $ présentement détenu par le cabinet Martens Lingard s.r.l., suite à
    lordonnance du juge Sharpe en date du 9 novembre 2011, servira à acquitter une
    portion de cette obligation.

« R.A.
    Blair j.c.a. »

« Paul
    Rouleau j.c.a. »

« Alexandra
    Hoy j.c.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.
    539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These
    sections of the
Criminal Code
provide:

539          (1)
Prior to the
    commencement of the taking of evidence at a preliminary inquiry, the justice
    holding the inquiry

(a)       may, if application therefore is made by the
    prosecutor, and

(b)       shall, if application therefor is
    made by any of the accused, make an order directing that the evidence taken at
    the inquiry shall not be published in any document or broadcast or transmitted
    in any way before such time as, in respect of each of the accused,

(c)       he or she is discharged; or

(d)       if he or she is ordered to stand
    trial, the trial is ended.

(2)
Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)
Everyone who fails to
    comply with an order made pursuant to subsection (1) is guilty of an offence
    punishable on summary conviction

(4)
[Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539; R.S.,
    1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barnett, 2013 ONCA 179

DATE: 20130325

DOCKET: C55598

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Dylon Barnett, Kristopher McLellan and Kyle
    Mullen

Respondents

Frank Au, for the appellant

Howard L. Krongold, for the respondent Dylon Barnett

Patrick McCann, for the respondent Kristopher McLellan

Paolo Giancaterino and Marco Sciarra, for the respondent
    Kyle Mullen

Heard: March 6, 2013

On appeal from the judgment of Justice B.R. Warkentin of
    the Superior Court of Justice, dated May 11, 2012, dismissing the appellants
    application for
certiorari
and
mandamus
and discharging the
    respondents on first degree murder.

By the Court:

[1]

Following a 12-day preliminary inquiry, the preliminary inquiry judge
    discharged the respondents on first degree murder but committed them to stand
    trial for the second degree murder of Michael Swan. The Crown’s application for
    review by way of
certiorari
and
mandamus
was dismissed by the
    reviewing judge. The Crown appeals to this court.

(1)

Facts

[2]

The three respondents drove from Toronto to Ottawa, and broke into a
    residence that Swan shared with others. McLellan and Barnett were armed with
    loaded handguns; Mullen was armed with a baseball bat. They went directly to
    Swan’s bedroom where Swan was watching TV with his girlfriend, Scott, and a
    friend, Tanguay. Scott testified that the three armed men blocked the exit to
    the bedroom, ordered the occupants to get on the ground on their knees, ordered
    them to get rid of their cell phones, and demanded “where’s the weed?” and
    “where’s the money?” Tanguay testified that the armed men kept asking “where’s
    the money, where’s the gun? You know where the shit is, where is everything,
    what’s going on?” Scott testified that McLellan said to Swan “I know you’re the
    drug dealer, you know where it is.”

[3]

Upon Swan responding, either “I have nothing” in Tanguay’s version or “I
    don’t know” in Scott’s, McLellan shot him. Scott said McLellan shot Swan after Swan
    “went down to do something, and I’m assuming it was to get his phone which was
    in front of him…”

[4]

Swan died within a short time after being shot. The respondents searched
    the rest of the residence, found drugs and money. They were arrested as they
    were driving back to Toronto in possession of the stolen articles and the gun.

[5]

The preliminary inquiry judge committed the respondents for trial on the
    charge of second degree murder but discharged them on first degree murder. He
    concluded there was “no evidence of any plan to kill the victim” and that the
    evidence was “suggestive of an impulsive murder”.

[6]

He rejected the Crown’s “constructive first degree murder” theory. He
    said:

The evidence indicates that the three accused entered Michael
    Swan’s bedroom, demanded to know where the drugs and money were, and within a
    very short period of time of no more than a few seconds, the fatal shot was
    fired. This falls far short of the threshold established by the Supreme Court
    in
Pritchard
.

[7]

He concluded that “it cannot be said that Michael Swan was unlawfully
    confined to the degree required by section 231(5)(e) nor can it be established
    that the three accused exploited their position of domination over the victim in
    order to murder him.”

[8]

The reviewing judge denied the Crown’s
certiorari
and
mandamus
application. She held that the preliminary inquiry judge, in assessing the
    sufficiency of evidence, was entitled to conclude that “there was simply no
    evidence of planning and deliberation which would justify a committal on first
    degree murder.” On the “constructive first degree murder” issue, she held that
    the preliminary inquiry judge properly concluded that “the shooting and the
    alleged confinement did not constitute separate acts because of the manner in
    which the shooting occurred, particularly the timing of the shooting.”

(2)

Issues

[9]

The Crown submits that the preliminary inquiry judge committed
    jurisdictional error by choosing between competing inferences about whether the
    murder was planned and deliberate and by misapplying the law of forcible confinement
    murder pursuant to s. 231(5)(e). The Crown submits it was an error for the
    reviewing judge to uphold the preliminary judge’s decision.

(3)

Analysis

(a)

Planned and
    deliberate

[10]

In our view the Crown misreads the preliminary inquiry judge’s comment
    that the evidence was suggestive of an impulsive murder. Other passages in the
    judge’s reasons make clear that he did not weigh competing inferences but
    rather found there was no evidence of any preconceived plan to commit murder.
    He said “The Crown submits there was a preconceived plan to kill Michael Swan,
    but after reviewing all of the evidence presented at this preliminary hearing,
    I find that there is no evidence of any plan to kill the victim.” He also said:

I have considered all of the evidence presented at this
    preliminary inquiry and there is no available inference that the three accused
    had a plan to kill Mr. Swan prior to entering his residence, or a plan to kill
    if necessary if he did not immediately provide them with the information they
    were seeking. For a court to draw such an inference based on the available
    evidence, would amount to that type of speculation and conjecture that is
    clearly not permissible even at the preliminary inquiry stage.

[11]

We would not give effect to this ground of appeal. The preliminary
    inquiry judge found there was no available inference that would support
    committal for first degree murder. The evidence that was available was
    “suggestive of an impulsive murder” and that is why the judge committed the
    respondents on a charge of second degree murder. The reviewing judge did not
    err in upholding this part of the preliminary judge’s decision.

(b)

“Constructive first
    degree murder”

[12]

Section 231(5)(e) of the Code elevates to first degree any murder where
    the death is caused while forcibly confining the victim. The Supreme Court, in
R.
      v.

Pritchard
, 2008 SCC 59, [2008] 3 S.C.R. 195, held that there
    must be confinement for “a significant period of time”.

[13]

There is, however, no minimum period of time during which the
    confinement must continue. What is a “significant period of time” depends on
    the circumstances of the case. What is important is that the act of killing
    must be separate and distinct from the unlawful confinement.

[14]

Here, there was evidence that, before McLellan shot Swan, the
    respondents entered and blocked the bedroom; pointed firearms at the occupants;
    ordered them to get on the floor on their knees, put up their hands, and put
    aside their cell phones; and demanded where the money and drugs were. In
    particular, there was evidence that McLellan said to Swan “I know you’re the
    drug dealer, you know where it is” and that
Swan
replied “I don’t know” before McLellan shot him.

[15]

It was for the jury to determine what to make of Scott and Tanguay’s
    estimates of how much time elapsed, whether the confinement lasted for a
    significant period, and whether McLellan’s shooting constituted a separate
    criminal act. It seems to us that the preliminary inquiry judge addressed the
    question of whether Swan was “unlawfully confined to the degree required by s. 231(5)(e)”
    rather than leaving that question to the jury.

[16]

By asking himself the wrong question the preliminary inquiry judge
    exceeded his jurisdiction. The question of whether McLellan’s shooting of Swan
    was a separate act committed during an unlawful confinement should have been
    left to the jury. The preliminary inquiry judge should have turned his mind to
    whether Barnett and Mullen were a substantial and integral cause of Swan’s
    death. By finding that the preliminary inquiry judge had not usurped the role
    of the trier or fact, the reviewing judge erred in law.

(4)

Conclusion

[17]

The appeal is allowed, the discharges of the respondents on the charge
    of first degree murder are set aside, and the case is remitted to the
    preliminary inquiry judge for committal of McLellan on the charge of first
    degree murder. The cases of Barnett and Mullen are remitted to the preliminary
    inquiry judge to determine whether there is evidence that their acts were a
    substantial and integral cause of the death and therefore whether they should
    be committed for first degree murder.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

Gloria
    J. Epstein J.A.”

Released: March 25, 2013


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Brown, 2013 ONCA
    128

DATE: 20130304

DOCKET: C52423 and C54708

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Creg Brown and Richard Rak

Appellants

Misha Feldmann, for the appellant Creg Brown

Mark Halfyard, for the appellant Richard Rak

Grace Choi, for the respondent

Heard: February 25, 2013

On appeal from the conviction entered on April 16, 2010
    by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting with a
    jury.

By
    the Court
:

[1]

The appellants Creg Brown and Richard Rak appeal their convictions for
    various offences following a two-week trial by MacKinnon J. of the Superior
    Court of Justice, sitting with a jury. Brown was convicted of break and enter
    with intent to commit an indictable offence, robbery and assault. The break and
    enter and assault convictions were stayed pursuant to
R. v. Kienapple
,
    [1975] 1 S.C.R. 729. Rak was convicted of break and enter with intent to commit
    an indictable offence, robbery and criminal harassment. The break and enter
    charge was stayed pursuant to
Kienapple
.

[2]

The appellants were convicted of breaking into a motel where a couple,
    Janet Nichols and Jody Ekman, were staying and robbing them of money and
    personal effects, including pills.

[3]

The appellant Brown raises two issues relating to the trial judges
    instruction to the jury regarding identification evidence.

[4]

Both appellants raise issues relating to the number and content of
Vetrovec
warnings provided to the jury by the trial judge in his jury charge and to the
    manner in which the trial judge dealt with one witnesss prior inconsistent
    statement.

A.

Browns
    appeal

(1)

Jury instruction about identification

[5]

The appellant Brown submits that the trial judge erred in his
    instruction to the jury regarding identification evidence. Specifically, Brown
    contends that the trial judge erred by instructing the jury to consider how
    certain the complainants were about the accuracy of their in-dock
    identification of Brown as one of the people who robbed them at the motel:

Consider how certain were the witnesses about the description?
    Nichols told you the black man she saw on May 16 was one and the same as the
    one that she saw on May 14 in her home.

...

Has the witness ever expressed uncertainty about the
    identification? I do not believe that there has.

[6]

The appellant also submits that the trial judge provided an insufficient
    warning about the dangers of an in-dock identification and did not properly
    warn the jury about the dangers of the vagueness and generality of the
    eyewitnesses description of the appellant.

[7]

We begin with two contextual observations. First, the trial judges
    charge about identification evidence tracked very closely the specimen charge
    in
Watts Manual of Jury Instructions
. Second, Browns identity as one
    of the perpetrators did not primarily flow, in the Crowns view of the case,
    from the in-dock identification of the complainants. Rather, it was premised on
    Jason Shelswells acquaintance with Brown and his testimony that Brown was
    known as Matrix, which was the name used by two of the robbers to refer to
    the third robber during the robbery.

[8]

Against this backdrop, we do not accept Browns submissions on this
    point. The charge, and especially the re-charge, sufficiently warned of the dangers
    of in-dock identification. In addition, the trial judge carefully reviewed the
    complainants description of the perpetrator known as Matrix, and, read as a
    whole, the trial judges charge did not communicate that the jury could simply
    accept the identification based on the complainants certainty.

(2)

The references to the nickname Matrix in the jury charge

[9]

The appellant Brown points to the complainants testimony that two of
    the robbers referred to the third robber as Matrix. The appellant states that
    the trial judge referred to him as Matrix throughout the charge, which had the
    effect of telling the jury that Matrix and the appellant were the same person.
    This, says the appellant, went beyond referring to the evidence and usurped the
    fact finding function of the jury. Whether the appellant was Matrix was a critical
    question of fact to be determined by the jury.

[10]

We
    disagree. In each instance identified by the appellant in which the trial judge
    referred to Matrix, he did so in the course of summarizing the testimony of
    various witnesses, primarily Nichols and Ekman, who testified that one of the
    robbers was called Matrix by the other robbers.  This was a perfectly fair
    summary and did not usurp the function of the jury to determine whether in fact
    Matrix was the appellant.

B.

Both
    appeals

(3)

Vetrovec
warnings

(a)

Nichols and Ekman

[11]

The
    appellants contend that, although the trial judge was correct to provide
Vetrovec
warnings concerning the complainants Nichols and Ekman, he erred by saying that
    you are permitted to conclude that the evidence of one of them confirms the
    evidence of the other of them.

[12]

We
    disagree. As expressed by this court in
R. v. Drabinsky
, 2011 ONCA
    582, 107 O.R. (3d) 595 at para. 140:

There is, however, no prohibition against the evidence of one
Vetrovec
witness confirming the evidence of another
Vetrovec
witness.... The
    question is not whether the witness is him or herself a
Vetrovec
witness, but whether the evidence of each witness is sufficiently independent
    of the evidence of the other to provide confirmation.

[13]

Recently,
    in
R. v. Pelletier
, 2012 ONCA 566, 295 O.A.C. 200 at para. 69, Watt
    J.A. stated that at least in the absence of evidence of collusion or
    collaboration, the evidence of one unsavoury witness can confirm the testimony
    of another.

[14]

In
    this case, there is no live issue of collusion or tainting of the complainants
    evidence. Therefore, the general rule from
Drabinsky
and
Pelletier
applies and the trial judge did not err in the passage set out above.

(b)

Shelswell

[15]

The
    appellants complain that the trial judge did not provide a
Vetrovec
warning relating to the Crown witness Shelswell.

[16]

We
    do not accept this submission.  The jury knew Shelswell had a criminal record
    and had been instructed on how to address credibility and the evidence of
    witnesses with criminal records.  Furthermore, during the discussion between
    the trial judge and counsel about the contents of the jury charge, which
    involved an extensive dialogue on the
Vetrovec
issue, none of the
    three defence counsel requested a
Vetrovec
warning for Shelswell.
    After the charge was delivered, no counsel objected to the absence of such a
    warning relating to Shelswells testimony. In these circumstances, what Doherty
    J.A. said in
R. v. Glasgow
(1996), 93 O.A.C. 67 (C.A.), at para. 3, is
    apposite:

If a trial judge was not asked to give a warning, it is
    difficult to understand how the trial judge can be said to have erred in the
    exercise of her or his discretion.

(4)

Prior inconsistent statement of Danny Steeves

[17]

The
    appellants contend that the trial judge erred by not providing a mid-trial
    instruction about a prior inconsistent statement by the Crown witness Danny
    Steeves.

[18]

We
    disagree. No counsel requested such an instruction when Steeves was testifying.
    Moreover, the trial judge provided an appropriate instruction on this point in
    his jury charge:

Danny Steeves testified at this trial. He was cross-examined by
    Crown counsel about the audio/video police statement he gave and in which he
    used words or responded to questions in relation to Jay, Rak and Matrix. He
    did not accept any of those pre-trial statements when he testified at trial....

Any parts of his pre-trial statement which were not accepted by
    him at trial as true, cannot be used by you as proof of the facts stated.

[19]

No
    defence counsel objected to this component of the jury charge. In our view, the
    trial judges instruction on this issue was both timely and correct.

Disposition

[20]

Both
    appeals are dismissed.

Released: March 4, 2013 (J.C.M.)

J.C. MacPherson J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Buchanan, 2013
    ONCA 144

DATE: 20130308

DOCKET: C55257

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jetter Buchanan

Appellant

Michael Dineen, for the appellant

Avene Derwa, for the respondent

Heard: March 7, 2013

On appeal from the conviction entered on December 19,
    2011 by Justice John B. McMahon of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The parties concede that the trial judge misapprehended the evidence
    because of the mistaken submission by Crown counsel. This aspect of the
    evidence was critical to the trial judges conclusion; he mentioned the
    placement of the fingerprints in a number of his 9 points for convicting.

[2]

We do not agree, however, that the verdict was unreasonable. Properly
    understood the evidence was capable of sustaining convictions.

[3]

Accordingly, the appeal is allowed, the convictions set aside and a new
    trial ordered.


COURT OF APPEAL FOR
    ONTARIO

CITATION:

R. v. Codner, 2013
    ONCA 138

DATE: 20130306

DOCKET: C55554

Epstein, Lauwers and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Floyd Codner

Appellant

Mark Halfyard, for the appellant

Mabel Lai, for the respondent

Heard: February 12, 2013

On appeal from the sentence imposed on December 17, 2009 by
    Justice M.P. Eberhard of the Superior Court of Justice, sitting without a jury.

Epstein J.A.:

[1]

The only issue in this sentence appeal is the credit the sentencing
    judge gave the appellant for his 595 days of pre-sentence custody.

[2]

The appellant pled guilty to robbery (x2), possession of a loaded
    prohibited firearm and a breach of a firearms prohibition.  The charges arose
    out of the appellants entering an open garage armed with a loaded prohibited firearm,
    binding the two people in the garage and robbing them of cash and electronic
    equipment.  In this criminal activity the appellant was accompanied by his two
    co-accused.

[3]

At the sentencing hearing, the Crown and the defence counsel jointly
    submitted that a period of incarceration of between ten to twelve years was the
    appropriate range of sentence in the light of the mandatory minimums of seven
    years for robbery with a firearm and three years for possession of a loaded
    firearm.

[4]

At the time of sentencing, the appellant, 30, had previously been attending
    George Brown College.  He was married, although separated.  He had three
    children with whom he had a close relationship and considerable involvement.
    He had an unenviable criminal record that included prior convictions for
    possession of a schedule I substance, possession of an unregistered-restricted
    weapon (x3), possession for the purpose of trafficking, use of an imitation
    firearm and obstructing a peace officer.  He was under two weapons prohibitions
    orders and a lifetime mandatory order under s.109 of the
Criminal Code
.

[5]

At the sentencing hearing and before this court, the divide between the
    parties was the credit to be given for the 595 days the appellant spent in
    pre-sentence custody.  The Crown argued that credit should be given on a ratio
    of 1.5:1. The defence argued there was nothing in this case that justified deviating
    from the standard 2:1 ratio.

[6]

For the reasons that follow, I would grant leave to appeal sentence and
    dismiss the appeal.

The Sentencing Reasons

[7]

The sentencing judge found that the combination of the seriousness of
    the home invasion-style robbery, the continued use of a firearm in spite of
    previous escalating sentences and repeated prohibition orders, the possession
    of a loaded firearm in the vehicle with all of the potential dangers to the
    public, and the fact that the appellant committed the robbery when police
    intervention was foreseeable, justified a total sentence of 10 years.

[8]

While not required to do so, the trial judge made the mandatory minimum
    sentences, consecutive. She reasoned that while the crimes attracting the
    minimum sentences were part of a continuous occurrence, the armed robbery alone,
    together with the circumstances of the offender, particularly the nature and
    extent of his criminal record, warranted a seven-year sentence.

[9]

The appellant had served one year, seven months and thirteen days in
    pre-sentence custody.  The trial judge was willing to accord the appellant credit
    for time served of only two years.   This worked out to a credit calculated on
    a 1.2.1 basis. The trial judge found that it was the appellants own conduct;
    namely, failing to comply with the prohibition orders, that disentitled him
    to the trust upon which pre-trial release is based.  The appellant therefore
    brought about his own pre-sentence detention.

Analysis

[10]

An
    appellate court can only interfere with a sentence where it reflects an error
    in law or is demonstrably unfit.

[11]

The
    appellant submits that the trial judge committed two legal errors in denying
    the standard 2:1 credit.  First, it was an error to deviate from the standard
    credit on the basis of bails having been refused due to appellants previous
    convictions for failure to comply with weapons prohibition orders. Second, the
    appellant argues that the basis upon which the trial judge denied credit on the
    standard 2:1 basis, led to the error of punishing the appellant twice for the
    same conduct.

[12]

As
    I will explain, I agree with the second challenge to the exercise of the trial
    judges discretion in denying a full 2:1 credit for pre-sentence custody that
    has been advanced by counsel for the appellant

[13]

The
    appellant was charged before the coming into force of the
Truth in
    Sentencing Act
, and so the provisions of that Act do not apply to him.
    Under the former law, judges normally gave two for one credit for pre-sentence
    custody:
R. v. Pangman
(2001), 154 C.C.C. (3d) 193 and
R. v.
    Francis
, [2006] O.J. No. 1287 (C.A.). The underlying rationale is twofold:
    first, people denied bail do not get earned remission towards early parole and
    second, remand detention centers lack rehabilitative programs that are
    available in institutions where an accused is held on a more permanent basis. It
    should also be kept in mind that an accused is being held in custody despite
    the presumption of innocence.

[14]

Although
    trial judges were entitled to depart from the practice of two for one credit,
    they were obliged to provide reasons that demonstrated that the deviation was
    on a principled basis: Departure from the normal credit has been found
    justified in cases such as where; 1) detention in pre-trial custody was the result
    of the accuseds own conduct; 2) the accused would be unlikely to get early
    release on parole; and 3) the accused has been held in remand at an institution
    that has access to rehabilitative programs.
R. v. Wust
, [2000] 1
    S.C.R. 455, at para. 45.

[15]

Here,
    the trial judge found that the appellants breaches of the prohibition orders
    brought upon himself a disentitlement to the trust necessary for pre-trial
    release.  While as we have noted, one of the principled bases where appellate
    courts have recognized it is appropriate to deny 2:1 credit is where the
    detention is the result of the accuseds own conduct, the question is whether
    this rationale applies in the circumstances of this case.

[16]

While
    the appellant advanced several arguments as to why this rationale should not
    apply to breach of prohibition orders, our difficulty with this aspect of the
    trial judges reasoning in not allowing the appellant the standard credit for
    pre-sentence custody is that there was no evidence that it was the breach of
    prohibition orders as opposed to the appellants prior record or some other
    factor that resulted in a denial of bail in this case. The transcript of the
    bail hearing was not before the court.  Simply put, the reason for the denial
    of interim release pending trial appears to have been based on surmise.

[17]

However,
    in this case, the Crown points out, correctly in my view, that any argument
    arising out of the bail hearing must be considered in the light of the fact
    that the appellant bore the onus to justify his release, as per s.
    515(6)(a)(viii) of the
Criminal Code
:

(6) Unless the accused, having been given
    a reasonable opportunity to do so, shows cause why the accuseds detention in
    custody is not justified, the justice shall order, despite any provision of
    this section, that the accused be detained in custody until the accused is
    dealt with according to law, if the accused is charged (
a
) with an indictable offence, other than an offence listed in
    section 469
(viii) that is alleged to
    involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a
    prohibited weapon, a restricted weapon, a prohibited device, any ammunition or
    prohibited ammunition or an explosive substance, and that is alleged to have been
    committed while the accused was under a prohibition order within the meaning of
    subsection 84(1).

[18]

The
    Crown further submits that the breaches at issue arose from a robbery and a firearm-related
    offence.  They are therefore inextricably connected to his criminal record. As
    well, the appellants conduct demonstrated unchecked disdain for court orders,
    which in turn rendered him not releasable.

[19]

Taking
    these various arguments into consideration and the deference afforded the trial
    judge, I am not convinced by the appellants first argument that the trial
    judge erred in principle in denying a 2:1 credit for pre-sentence custody on
    the basis that the appellant was the author of his own misfortune. I agree with
    the respondents position, that the trial judge was entitled to conclude that
    the appellants own actions had contributed to his being denied bail, given
    that the onus had shifted to him and that the breaches for which he was charged
    were part of a pattern that is clear from his criminal record.

[20]

I
    would therefore not give effect to this first argument.

[21]

In
    support of his double punishment argument the appellant relies on the decision
    of the British Columbia Court of Appeal in
R. v. Calder Berg
(2007),
    221 C.C.C. (3d) 449.  That case dealt with this issue in the context of whether
    the repeated breach of a driving prohibition (rather than a weapons
    prohibition) disentitled the accused to normal credit for pre-sentence
    custody.  The court found that the trial judge erred in taking the appellants
    continued driving while prohibited into account at three different points in
    his sentencing: first, as an aggravating factor justifying a higher sentence
    for the offence of criminal negligence causing death; second, as an aggravating
    factor justifying a higher sentence with respect to the offences of driving
    while prohibited; and third, as a basis for refusing to give the appellant 2:1
    credit.  This amounted to a form of unjustified double counting.

[22]

I
    am more swayed by the double counting submission. In
Calder Berg
, the
    trial judge denied 2:1 credit for denunciatory purposes, which was the error in
    principle that rendered the double counting unjustifiable. However, the
    reasons articulated by the British Columbia Court of Appeal are largely
    applicable here as well. While the trial judge did not deny the credit (at
    least explicitly) for denunciatory purposes, the concern regarding double
    counting still applies. Here, the appellants sentence was impacted on three
    different levels by his prior weapons convictions, which included the mandatory
    weapons prohibitions: it was an aggravating factor which increased both the
    overall sentence and specific sentence, it impacted the appropriate range of
    sentence due to the applicable mandatory minimum sentence, and the trial judge
    used the violation of the weapons prohibition to reduce his pre-sentence
    custody. All of these amount to the type of double counting with which the
    British Columbia Court of appeal was concerned in
Calder Berg
.

[23]

Accordingly,
    I am of the view that the trial judge erred by imposing an unjustified double
    penalty for the appellants breach of prohibition orders.

[24]

It
    follows that the trial judges determination of the appropriate pre-trial
    credit does not attract the usual deference on appeal.  This court is therefore
    charged with the responsibility of determining whether or not we consider the
    sentence ultimately imposed, nonetheless, to be fit.
R. v. Land-Watt
,
2007 ONCA 642, 228 O.A.C. 394 and
R. v. Situ
, 2010 ONCA 683, O.J. No
    4427.

[25]

In
    my view, it was.

[26]

The
    sentence imposed, which is just slightly more than 11 years, falls within the
    range of 10 to 12 years proposed by both parties.  It is a sentence that is,
    all things considered, justified. This was a serious crime, committed by an
    individual with a criminal record for firearms and violence. Parliament,
    through its mandatory minimum sentencing regime has sent a strong signal to
    those contemplating such criminal conduct.  Denunciation, deterrence, and protection
    of the public are being taken seriously attracting a serious response.

[27]

In
    the end, whether the trial judge properly considered the breach of the firearms
    prohibition as a standalone offence; as an aggravating factor for the robbery;
    and as a factor weighing against enhanced pre-trial credit, the principle of
    totality and the fitness of the ultimate sentence relieves against any
    unfairness that might have resulted from considering each factor in isolation.

Disposition

[28]

On the basis of this analysis, I would grant leave to appeal sentence
    but dismiss the appeal.

RELEASED:

GE                                         Gloria
    Epstein J.A.

MAR -6 2013                          I agree Alexandra
    Hoy J.A.

I agree P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Cohen, 2013
    ONCA 163

DATE: 20130315

DOCKET: C54503

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leslie Cohen

Appellant

Leslie Cohen, appearing in person

Robert Hubbard, for the respondent

Heard: March 15, 2013

On appeal from the conviction entered on October 3, 2011
    by Justice Carol Brewer of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

It is well established that hybrid offences are deemed indictable until
    the Crown elects otherwise. In this case the Crown elected to proceed by
    indictment. After being informed of his right to a jury trial, the appellant
    elected to be tried in the Ontario Court and pleaded guilty following a full
    guilty plea inquiry. The appellant has served his sentence. We see no basis on
    which to interfere with the convictions.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. D'Onofrio, 2013
    ONCA 145

DATE: 20130308

DOCKET: C55074

Rosenberg, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Franco DOnofrio

Appellant

Lawrence Greenspon and Eric Granger, for the appellant

Kevin R. Wilson and Christine Josic, for the respondent

Heard: March 8, 2013

On appeal from the conviction entered on December 14,
    2011 and the sentence imposed on January 27, 2012 by Justice Lynn D. Ratushny
    of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The trial judges finding of reasonable and probable grounds turned on
    findings of fact that are entitled to considerable deference. The appellant
    attempts to meet that burden by arguing that three of the key findings are
    based on misapprehension of evidence.

[2]

We do not agree that there were material misapprehensions.

[3]

The police officer acknowledged his mistake with respect to the tear as
    recorded in his notes. It was open to the trial judge to accept the trial
    evidence. The photos confirmed that the location on top is difficult to
    describe.

[4]

The powder was confirmed by other evidence as was the brick-like shapes in
    the bags.

[5]

Given all the evidence, the trial judges conclusion is not subject to
    reversible error.

[6]

As to sentence, two factors dominate the range of sentence. The
    unprecedented quantity of almost 112 kilos with a street value of $15 million
    and the prior record for the same offence. The evidence shows that although a
    courier, the appellant must have been close to the importation.

[7]

Sentences for importing and trafficking large quantities of cocaine were
    of assistance in locating the proper range. The sentence was not manifestly
    outside the range. There was no error in principle.

[8]

Accordingly, the appeal from conviction is dismissed. While leave to
    appeal sentence is granted, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Geil, 2013
    ONCA 457

DATE: 20130319

DOCKET: M42088

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party

and

Jason John Geil, Janet Ann Bratton, Ontario
    Corporation #1410025 c.o.b. as Geil Style Enterprises Inc.

Moving Parties

Terrance G. Green and Mariah Soper, for the moving
    parties

Steven OMelia, for the responding party

Heard: March 4, 2013

On motion for leave to appeal the judgment of Justice
    Gary F. Hearn of the Ontario Court of Justice dated November 28, 2012,
    dismissing the appeal from the convictions entered on January 26, 2011 and the
    sentences imposed on September 16, 2011 by Justice of the Peace
Zeljana
Radulovic.

ENDORSEMENT

[1]

The applicants Jason John Geil, Janet Ann Bratton, Ontario Corporation
    #1410025 operating as Geil Style Enterprises Inc. built a farm roadway on land
    they owned to provide cultivation access to a section of their land. They did
    so without securing the permission of Grand River Conservation Authority. They
    were convicted of breaching a regulation under s. 28(16) of the
Conservation
    Authorities Act
, R.S.O., 1990, c. C.27, as amended. The conviction was
    upheld.

[2]

The applicants seek leave to appeal under s. 131 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33, as amended.

[3]

The principles for granting leave to appeal leave under s. 131 of the
Provincial
    Offences Act
are set out in
Ontario (Labour) v. Enbridge Gas
    Distribution Inc.
, 2011 ONCA 13, per Watt J.A. at paras. 33-35. There must
    be question of law alone, the resolution of which may have an impact on the
    jurisprudence in a way that is of interest to the public at large, and that
    resolution must be essential in the public interest, in the sense of material,
    important, or for the due administration of justice:
R. v. Krukowski
[1991] O.J. No. 255 per Lacourciere J.A. at para 13.  Further, the leave court
    may advert to the merits:
Ontario (Labour) v. Enbridge Gas Distribution
    Inc.
at para. 38.

[4]

The legal issue that the applicants raised in argument can be distilled:
    Does the Provincial Policy Statement enacted by the Province under the
Planning
    Act
, R.S.O. 1990, c. P.13
immunize
    farmers from prosecution under the
Conservation Authorities Act
by a
    Conservation Authority where the offence relates to farming activities, in this
    case constructing a road incidental thereto?

[5]

The applicants concede that the proper application of the Provincial
    Policy Statement was not argued before the trial justice. The applicants
    complain that trial counsel was incompetent in failing to do so. The issue was
    raised before the appeal court but was not referenced in the reasons for
    decision. The applicants complain that in failing to address the argument, the
    appeal courts reasons do not comply with
R. v. Sheppard
, [2002] 1
    S.C.R. 869.

[6]

The applicants submit that the issue is of importance to farmers
    generally. They also point to another decision of a justice of the peace which they
    submit conflicts with the trial decision in this case. In
R. v. Minas,
(Justice of the Peace Ann Rohan, unreported, dated January 21, 2009), as in
    this case, the land was in agricultural use and a road was built without a
    permit in an area designated as a wetland subject to regulation by the
    Conservation Authority.

[7]

There was some evidence in
Minas
that a laneway had existed on
    the land in the location of the road. In the course of his reasons for
    decision, the trial justice in
Minas

said:

The 2005 Ontario Provincial Policy stated that wetland
    protection is not to limit agricultural use. This is Mr. Thompsons evidence
    (an expert land use planner), that the defendant did not require a permit as
    agricultural activities are exempt as it relates to wetland protection under
    the
Planning Act
.  It is this courts opinion that a roadway existed
    for agricultural purposes on this property and may have been overgrown by lack
    of use over the years. Quite frankly, the matter before the court is whether
    or not the defendants should have access to viable farmland over an improved
    historic roadway for agricultural purposes; it is the opinion of this court,
    after hearing all the evidence, examining all the exhibitsthat the defendants
    are not guilty of these offences.

[8]

The applicants claim that there was such a laneway here too, which would
    bring the case even closer to
Minas
.
But the appeal judge noted
    at para 31 and 33 of his decision:

[31]    The Justice of the Peace did not accept the evidence of
    Stewart Geil that a laneway always had existed through the wetland and that it
    had not changed much except that some gravel had been put on it.  In coming to
    that conclusion Her Worship considered the very evidence of the Applicant Jason
    Geil who admitted that he had been cleaning the area through the wetland and
    had made the laneway wider and longer by cleaning bush, trimming branches and
    putting gravel on the roadway.

[33]    There is nothing before the court to indicate that the
    photo now sought to be introduced as new evidence was not available at the time
    of trial.  Further and in any event it is clear that upon viewing the
    photograph it does not assist the Applicants in any productive way as an
    existing roadway is not readily apparent.  Certainly not or near to the extent
    of the roadway illustrated on Exhibit #1 to the appeal which is an aerial
    photograph showing the current roadway as of July 13, 2012.

In my view,
Minas

is accordingly not a
    conflicting decision.

[9]

In relation to leave to appeal leave under s. 131 of the
Provincial
    Offences Act,
t
he
    respondent agrees that the interpretation of the Provincial Policy Statement
    and its application to farming raises a question of law. The respondent takes
    the simple position, however, that the argument that the applicants as farmers
    are immunized from prosecution by virtue of the Provincial Policy Statement
    simply has no merit.

[10]

The
    respondent submits that the Provincial Policy Statement gets its status from s.
    3 (5) of the
Planning Act
:

(5)
A decision of
    the council of a municipality, a local board, a planning board, a minister of
    the Crown and a ministry, board, commission or agency of the government,
    including the Municipal Board, in respect of the exercise of any authority that
    affects a planning matter,

(a) shall be
    consistent with the policy statements issued under subsection (1) that are in
    effect on the date of the decision; and

(b) shall conform with
    the provincial plans that are in effect on that date, or shall not conflict
    with them, as the case may be.

[11]

The
    respondent submits that the subsection plainly provides that the duty of the
    Conservation Authority to comply with the Provincial Policy Statement is
    limited, as the
Planning Act
states, to the exercise of any authority
    that affects a planning matter. The Provincial Policy Statement has no effect
    on the ordinary exercise of Conservation Authoritys jurisdiction under the
Conservation
    Act
in regulating wetlands. This would also explain why trial counsel, who
    was well-versed in the law having previously acted for the Conservation
    Authority, did not raise the issue; failing to do so was, the respondent
    submits, not an instance of incompetence.

[12]

The
    applicants raised three complaints in the factum, being whether the appeal
    judge provided sufficient reasons for judgment, whether he properly weighed the
    evidence that was brought before him and whether he properly applied the law to
    the evidence.  In the circumstances of this case, none of these is capable of
    meeting the test for leave under s. 131 of the
Provincial Offences Act
.
    I reach the same conclusion on the proposed legal question; the position to be
    argued by the applicants has no merit.

[13]

The
    motion for leave to appeal is dismissed.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gough, 2013
    ONCA 137

DATE: 20130306

DOCKET: C55605

Epstein, Hoy and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elvin Gough

Appellant

Howard L. Krongold, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: February 12, 2013

On appeal from the conviction entered on October 21, 2011
    by Justice Albert J. Roy of the Superior Court of Justice, sitting without a
    jury.

By the court:

OVERVIEW

[1]

The appellant appeals his conviction of robbery and uttering a
    threat.  The only issue at trial was identification and the only evidence
    on that issue was the eyewitness testimony of the victim, Dean Desarmia.

[2]

Mr. Desarmia, a resident of a Salvation Army shelter in Ottawa, was
    robbed in late July 2010 after cashing an Ontario Disability Support Program
    (ODSP) cheque at a MoneyMart store.

[3]

Mr. Desarmia first saw the robber shortly after cashing his cheque. As Mr.
    Desarmia and a friend walked along an Ottawa street, a man walked towards them.
     Mr. Desarmia had never seen or met the individual before.  The friend greeted the
    man and then walked away with him.

[4]

Mr. Desarmia then saw an acquaintance and went and sat with him on the
    edge of a planter.  While Mr. Desarmia was seated on the planter, the man who
    had met up with Mr. Desarmias friend walked over really fast and, as he sat
    down beside Mr. Desarmia, he placed Mr. Desarmia in a headlock.  The man told
    Mr. Desarmia that if Mr. Desarmia did not give him the money, he would crush
    Mr. Desarmias head.  Mr. Desarmia handed over the envelope containing all
    of his cash, around $450.  The robber threatened that if Mr. Desarmia spoke to
    the police, he would cut Mr. Desarmias head off.

[5]

Several days after the robbery, Mr. Desarmia recounted what had
    transpired to his brother (one of the Crowns two witnesses) and left
    Ottawa.  Upon his return a couple of weeks later, he encountered a man
    talking with someone outside the Salvation Army shelter who, upon seeing Mr.
    Desarmia, uttered the words Its a free country.

[6]

Believing that the man was the robber, Mr. Desarmia spoke to the staff
    at the Salvation Army residence  Candace Letourneau (the other Crown witness),
    and Steph, who did not testify.  Mr. Desarmia learned that the mans name was
    Elvin Gough.

[7]

Some five days later, Mr. Desarmia reported the robbery to the police,
    and provided them the appellants name Elvin Gough, as the man who had robbed
    and threatened him.    Mr. Desarmia also provided the police with a description
    of his assailant: a black male, middle aged, heavy-set, wearing a black fabric
    that covers the head and drapes down at the neck, similar to a bandana but not
    a bandana.

[8]

The police located the appellant and charged him with robbery and
    uttering threats.

[9]

Prior to the robbery, Mr. Desarmia had been diagnosed with schizophrenia.
    He was not taking medication at the time of the robbery, or at the time he saw
    the man outside the shelter.

[10]

At
    trial, some fourteen months later, Mr. Desarmia identified the man in the
    prisoners box, the appellant, as the man who had robbed him and whom he had
    met outside the shelter.

[11]

The
    appellant did not testify.

[12]

After
    a two-day trial, the trial judge concluded that the appellant had committed the
    offences.

[13]

The
    appellant argues that; (1) the trial judge materially misapprehended the
    evidence, (2) the verdict is unreasonable, and (3) the trial judge failed to
    correctly instruct himself on the inherent unreliability of identification
    evidence, or to advert to and adequately scrutinize the specific frailties
    disclosed by Mr. Desarmias evidence.

[14]

Based
    on our conclusion that the trial judge erred in the manner in which he
    considered the identification evidence, the convictions cannot stand and the
    appeal must be allowed.

[15]

Specifically,
    while the trial judge noted the need for caution in weighing Mr. Desarmias
    identification evidence in his reasons, he did not direct himself to or
    adequately analyze the specific and significant frailties in Mr. Desarmias
    evidence.  It is particularly critical that a trial judge do so where, as
    here, there is no independent evidence capable of corroborating the victims
    identification evidence.

[16]

To
    provide context for the analysis that follows, we first set out the relevant
    portions of the trial judges reasons. We then briefly address the appellants
    first and second grounds of appeal before turning to the appellants third, and
    pivotal, argument.

THE TRIAL JUDGES REASONS

[17]

In response to defence counsels submissions on the identity
    issue, the trial judge acknowledged that the court should be cautious when
    looking at identity and, of course, that is something that we are all very
    cognizant of, that, if there is an area where mistakes are made, it often is in
    the area of mistaken identity....

[18]

The trial judge was satisfied that Mr. Desarmia had not made up
    that he was robbed of his money from his ODSP cheque by a large, black man. He
    found that there was a ring of truth and an air of certainty about [Mr.
    Desarmias] evidence on the material facts and that there was a child-like
    genuineness and truthfulness about his evidence.

[19]

The trial judge reasoned as follows:

[Mr. Desarmia] identified the accused, he described him and
    in circumstances when he had an opportunity to see him.  He saw the accused
    walking towards him, the accused sat right next to him, the accused had him in
    a headlock, he saw the accused, he gave him the envelope and then he saw the
    accused walk away.  He saw the accused threaten him and this all happened in
    daylight.

Not only did he give a description of the accused without
    details  and that has to be said, he did not give details  but one of the things
    that he did recognize was his voice

[]

Then two weeks later, when he comes back to the shelter, he
    sees the accused.  It is not as though he is walking down the street in some
    other city and picks out an individual.  He picks out the accused who is
    staying at this residence and it is confirmed that the accused is a resident at
    this shelter.

Then the accused says something to him about a free country.  That
    is all consistent with the victim saying that he recognized his voice.

So that this is not one of these circumstances where you get a
    momentary view of someone and you do not see him for two weeks and then you
    make an identification. The opportunity and circumstances of this case are far
    convincing about the weight of the evidence that should be given on the
    question of identity.

So, on all of the evidence, the evidence of the occurrence and
    the evidence of the identity, I am satisfied on the evidence of Mr. Desarmia,
    confirmed by the evidence of the two Crown witnesses, I am satisfied beyond a
    reasonable doubt that this occurrence, the robbery and threats, took place and
    I am satisfied beyond a reasonable doubt as well that these offences were
    committed by Mr. Gough.

ANALYSIS

(1)

Material Misapprehension of Evidence

[20]

The
    appellant submits that the trial judge misapprehended key evidence involving
    the corroboration of the complainants identification evidence.

[21]

Specifically,
    on three occasions in his reasons, the trial judge erroneously referred to Ms.
    Letourneaus evidence that the appellant resided at the Salvation Army shelter
    as confirming Mr. Desarmias evidence.

[22]

It
    is conceded that Ms. Letourneau did not testify that the appellant resided at
    the shelter. In fact, she testified that while she had a good idea of who was
    staying at the shelter, she had never met the appellant and did not know his
    name.

[23]

Mr.
    Desarmia, however, after first testifying that he never saw the appellant
    living at the shelter, later testified that the appellant was living at the
    shelter.  Mr. Desarmias evidence appears to speak to the period of time after
    he saw the appellant outside the shelter, and not the time at which the robbery
    occurred.

[24]

The question that follows is the extent to
    which, if at all, this misapprehension affected the trial judges reasoning
    process, resulting in his conclusion that the appellant is the robber. If the
    misapprehension played an essential part in the trial judges reasoning process
    leading to the conviction, the conviction is not saved even if the evidence at
    trial was capable of supporting a conviction:
R. v. Lohrer
(2004), 2004
    SCC 80, 193 C.C.C. (3d) 1 (S.C.C.), citing
R. v. Morrissey
(1995),
22
    O.R. (3d) 514,
97 C.C.C. (3d) 193 (Ont. C.A.), at para. 93.

[25]

While
    the misapprehension of evidence was unfortunate, we are not satisfied that it
    gave rise to a miscarriage of justice.

[26]

The
    only indication of the significance that the trial judge accorded what he
    thought was confirmatory evidence of Ms. Letourneau is in the following passage
    from his reasons excerpted above:

It is not as though [Mr. Desarmia] is walking down the street
    in some other city and picks out an individual.  He picks out the accused who is
    staying at this residence and it is confirmed that the accused is a resident at
    this shelter.

[27]

The
    misapprehended evidence was of very limited probative value. Since the appellants
    defence at trial rested on the fact that Mr. Desarmia knew the appellant and
    the appellant lived at the shelter it was an easy error for the trial judge to
    make.

[28]

While
    not clear from his reasons, the trial judge may also have regarded Ms.
    Letourneaus evidence as buttressing Mr. Desarmias credibility; that is, Mr.
    Desarmias evidence that he saw the appellant outside of the shelter is more
    believable if the appellant in fact lived at the shelter at that time.  Mr.
    Desarmias credibility, however, was not a key issue at trial.  The critical
    issue was the reliability of his identification of the appellant as the robber.

[29]

We
    are not, however,
persuaded that the misapprehension of
    the evidence played an essential part in the trial judges reasoning process
    resulting in the appellants conviction.  We reject this ground of appeal.

(2)

Unreasonable Verdict

[30]

The
    appellant submits that the identification evidence cannot reasonably support a
    conviction.

[31]

To give effect to this ground of appeal,  we must
    be persuaded that, on the record before the trial judge, no properly instructed
    trier of fact acting judicially could reasonably have convicted the appellant:
    see
R. v. Goran
,
2008 ONCA 195,
[2008] O.J. No.1069, at para. 21.

[32]

As
    explained below, there are frailties in Mr. Desarmias evidence.  Nonetheless,
    Mr. Desarmia did see the robber twice in close quarters, during daylight, in a
    single day, albeit briefly.  We adopt the approach of Blair J.A. in
Goran
and conclude that, notwithstanding these frailties, it is possible that a trier
    of fact, properly instructed and acting reasonably, could have come to the same
    conclusion as the trial judge.

[33]

We
    do not give effect to this ground of appeal.

(3)

Concerns Regarding the Identification Evidence

[34]

As
    indicated above, our concern is that the trial judge failed not only to
    self-instruct properly on the inherent unreliability of identification
    evidence, but also to advert to and adequately scrutinize the specific
    frailties disclosed by the evidence.  The trial judges comments that the
    court should be cautious when looking at identity and it is an area where
    mistakes are made fall short of the degree of scrutiny required.  The trial
    judge also failed to instruct himself on the fallacy of mistaking certainty for
    accuracy by placing excessive reliance on Mr. Desarmias child-like
    genuineness and the fact that he sensed a ring of truth and an air of
    certainty about his evidence.

[35]

Being
    notoriously unreliable, eyewitness identification evidence calls for
    considerable caution by a trier of fact:
R. v. Nikolovski
, [1996] 3
    S.C.R. 1197, at pp. 1209-10;
R. v. Bardales
, [1996] 2 S.C.R. 461, at pp.
    461-62;
R. v. Burke
, [1996] 1 S.C.R. 474, at p. 498. It is generally
    the reliability, not the credibility, of the eyewitness identification that
    must be established.  The danger is an honest but inaccurate
    identification:
R. v. Alphonso
, 2008 ONCA 238, [2008] O.J. No. 1248,
    at para. 5;
Goran
, at paras. 26-27.

[36]

The trier of fact must take into account the
    frailties of eyewitness identification in considering such issues as whether
    the suspect was known to the witness, the circumstances of the contact during
    the commission of the crime (including whether the opportunity to see the
    suspect was lengthy or fleeting) and whether the circumstances surrounding the
    opportunity to observe the suspect were stressful;
R. v. Carpenter
, [1998] O.J. No. 1819 (C.A.), at para. 1;
Nikolovski
, at 1210;
R. v. Francis
(2002),
    165 O.A.C. 131,
[2002] O.J. No. 4010,
at para. 8.

[37]

As well, the judge must carefully scrutinize the
    witnesses description of the assailant.  Generic descriptions have been
    considered to be of little assistance;
R. v. Boucher,
2007 ONCA 131
,
[2007] O.J. No. 722,
    at para. 21.  The same can be said of in-dock or in-court identification;
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at 468-69;
R.
    v. Tebo
(2003), 172 O.A.C. 148 (Ont. C.A.), at para. 19.

[38]

In his reasons, the trial judge
failed to grapple with a
    number of frailties specific to Mr. Desarmias identification evidence,
    including:

·

The evidence of Ms. Letourneau was that more than one black
    person was living at the shelter.  As the trial judge noted, Mr. Desarmias
    description of the robber was generic.  There was no evidence that the
    appellant was wearing the distinctive head garb Mr. Desarmia described to the
    police at the time that Mr. Desarmia saw him in front of the shelter. Mr.
    Desarmias identification of the appellant was cross-racial. The concern with
    respect to the generic description on which Mr. Desarmia presumably acted in
    identifying the appellant outside the shelter was therefore heightened.

·

According to Mr. Desarmia, he relied mostly on the voice of the
    man outside the shelter in identifying him as the robber. Mr. Desarmia testified,
    however, that one of two reasons he receives ODSP is because he suffered
    hearing damage from a car accident.  Moreover, the verbal exchanges between Mr.
    Desarmia and the robber were limited, and more than two weeks had elapsed
    between the time Mr. Desarmia heard the robbers voice and the encounter where
    the man outside the shelter uttered a mere four words.

·

Mr. Desarmia did not know the robber, and, in the first
    encounter, had little reason to pay attention to him. The circumstances of the
    second encounter were stressful, and may have made accurate observation
    difficult. Both encounters were brief.

[39]

These
    issues were raised. The deficiency in the reasons can be summarized as a
    failure on the part of the trial judge to connect the essential principles of
    the frailties of eyewitness identification to the specific concerns raised by
    the evidence in this case. This lack of analysis was particularly problematic
    given that there was no other evidence linking the appellant to the crime.

DISPOSITION

[40]

For
    these reasons, we allow the appeal, quash the convictions and order a new trial
    if the Crown is so advised.

Released: Mar. 6, 2013    GE                                         Gloria
    J. Epstein J.A.

Alexander
    Hoy J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamadi, 2013
    ONCA 198

DATE: 20130328

DOCKET: C53689

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmad Hamadi

Appellant

Daniel Sommers and Omar Ha Redeye, for the appellant

Holly Loubert, for the respondent

Heard and released orally: March 27, 2013

On appeal from the conviction entered on November 17,
    2010 and the sentence imposed on April 12, 2011 by Justice J. F. McGarry of the
    Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted by McGarry J. of the Superior Court of
    Justice on November 17, 2010 of three offences: uttering a threat to cause
    death, criminal harassment, and failing to comply with an undertaking. The
    appellant received a global sentence of seven months incarceration on April 12,
    2011.  He appeals the convictions and sentence.

[2]

On his conviction appeal, the appellant advances two grounds.

[3]

First, the appellant contends that the verdict was unreasonable,
    essentially on the basis that the trial judges assessment of the credibility
    of the appellant and the complainant was unreasonable and incorrect.

[4]

We do not accept this submission.  The trial judge gave ample reasons
    for making the credibility findings he did.  We can see no error in this
    component of his reasoning, which was clearly open to him on the evidence.

[5]

Second, the appellant submits that, through extensive questioning of
    various witnesses, the trial judge entered the arena, giving rise to an
    appearance of bias.

[6]

We disagree.  Judges have a right to ask questions.  In this case, the
    trial judges questions were for the purpose of clarifying and understanding
    what unsophisticated witnesses were trying to say. There is nothing in his
    questions that would suggest the appearance of an unfair trial.

[7]

The appellants only complaint about his sentence is that the three
    month sentence for breach of an undertaking was excessive; it should have been
    two months.

[8]

We do not accept this submission.  In our view, both this component of
    the sentence and the global sentence of seven months were fit.

[9]

The appeal is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Hrynkiw, 2013
    ONCA 191

DATE: 20130328

DOCKET: C55017

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Johnnie Hrynkiw

Appellant

David Burke, for the appellant

Susan Magotiaux, for the respondent

Heard: March 27, 2013

On appeal from the decision of the Summary Conviction
    Appeal Court dated January 18, 2012 by Justice Jane E. Kelly of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on May 6,
    2011 by Justice Norris Weisman of the Ontario Court of Justice.

APPEAL BOOK
    ENDORSEMENT

[1]

We are not satisfied that this case raises an issue of law capable of
    supporting an order for leave to appeal. Rather, the main issue raised is the
    question of the summary conviction appeal courts characterization of the seriousness
    of the s. 10(b)
Charter
breach for the purposes of the
Grant
test.

[2]

Leave to appeal is refused.