WARNING

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

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

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    that could identify the victim or a witness shall not be published in any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

(a)      any of the following offences;

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

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

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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

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

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

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

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

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    shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.C., 2017 ONCA 143

DATE: 20170216

DOCKET: C60504

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.

Appellant

Timothy E. Breen, for the appellant

Peter Fraser, for the respondent

Heard and released orally: February 9, 2017

On appeal from the conviction entered on January 6, 2015
    by Justice Bonnie J. Wein of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of multiple offences related to sexual acts
    with his step-sister, 10 years his junior. The appellant began with fondling
    over the complainants clothing when she was just six years old, and had
    proceeded to full intercourse with the complainant on a regular basis by the
    time the complainant was 10 or 11 years old. The complainant, over time,
    developed a romantic attachment to the appellant, which ended when the
    complainant was 19, shortly after the appellant impregnated her. The appellant
    admitted the sexual relationship. He insisted, however, that it did not begin
    until the complainant had turned 16, which evidence the trial judge rejected.

[2]

The trial judge found the appellant to have been in a position of trust
    over the complainant, who had been particularly vulnerable as the youngest in a
    large, recently blended family. She was desperate for love and attention, and
    the appellant exploited this vulnerability for his sexual gratification. The
    offences for which the appellant was convicted correspond primarily to sexual
    acts that occurred over the period of six years between the appellant turning
    18 and the complainant turning 14.

[3]

The appellant advances two grounds of appeal. First, the trial judges
    conduct of the trial is said to have raised an apprehension of bias against the
    appellant. The appellant points to four allegedly improper interventions by the
    trial judge:

1.       interjections in defence counsels cross-          examinations;

2.       interventions in the examination of witnesses so      as
    to minimize inconsistencies;

3.       assuming control of the prosecutions           examination
    of two witnesses; and

4.       questioning the appellant as to whether he had    been
    drinking at lunch recess.

[4]

We reject as without merit the argument that the trial judges
    interventions gave rise to a reasonable apprehension of bias.

[5]

Her interjections occurred during questioning by the Crown and by the
    defence and were intended to:

1.       insure that procedural and
    evidentiary rules were  followed;

2.       clarify questions asked by
    counsel;

3.       clarify answers; and

4.       move the trial forward in an
    orderly fashion when  questioning had bogged down on a collateral           matter.

[6]

None of the interjections support the argument that the trial judge took
    over the Crowns case. At worst, the interventions by the trial judge during
    the examination of one somewhat difficult Crown witness suggested that she
    became mildly frustrated with the Crowns difficulty in getting to the relevant
    evidence. These interjections did not, however, interfere with counsels
    ability to fully and fairly put the defence forward. We simply do not read into
    these interjections the adversarial tone urged by counsel for the appellant.
    This ground fails.

[7]

Similarly with the second ground of appeal - misapprehension of evidence
    -  four alleged errors are raised:

1.       failing to address the reliability of the           complainants
    evidence;

2.       failing to consider the effect of the complainants        exaggeration
    of the frequency of sexual activity;

3.       failing to consider the
animus
of one of the           witnesses
    against the appellant; and

4.       failing to address the improbability that such           activity
    could go undetected in a crowded           household over many years.

[8]

We are not persuaded that the trial judge misapprehended the evidence. In
    our view, the appellant essentially asks us to retry this case. There is no
    basis to interfere with the trial judges findings of fact. Moreover, a
    misapprehension of evidence is not a reviewable error unless the error played
    an essential part not just in the narrative of the judgment but also in the
    reasoning process that resulted in a conviction:
R. v. Lohrer
, [2004]
    3 S.C.R. 732, at para. 2;
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193,
    at p.221.

[9]

The appellant has not demonstrated how what he seeks to characterize as
    erroneous factual findings played an essential role in the trial judges
    reasoning process that resulted in the conviction.

[10]

The appeal is dismissed.

Alexandra Hoy A.C.J.O.

"Doherty J.A."

"B.W. Miller J.A."


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.S., 2017 ONCA 131

DATE: 20170215

DOCKET: C55428

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.S.

Appellant

Misha Feldmann, for the appellant

Michael Perlin, for the respondent

Heard: October 14, 2016

On appeal from the conviction entered on June 21, 2011 by
    Justice Laurence A. Pattillo of the Superior Court of Justice, sitting with a
    jury.

Miller J.A.:

[1]

After a 21 day trial before a judge and jury, the appellant was
    convicted of 32 charges, including sexual assault, assault with a weapon, and
    assault causing bodily harm. The appellants former spouse testified that these
    acts were a discrete part of a larger, on-going pattern of domestic abuse of
    both her and her children which persisted for over 10 years: on multiple
    occasions the appellant facilitated the sexual assault of his former spouse by
    strangers in their family home; many of his assaults were carried out with
    weapons including swords, knives, an axe, a meat cleaver and a spear.

[2]

Chief among the appellants grounds of appeal is a claim of ineffective
    assistance of counsel. He also appeals on the basis of multiple errors in the
    charge to the jury.

[3]

None of these grounds of appeal have merit and I would dismiss the
    appeal.

A.

Ineffective assistance of counsel

[4]

The ineffective assistance of counsel claim was brought in relation to
    the six counts of sexual assault against the appellants former spouse, R.B.
    The claim revolves around trial counsels decision not to seek a more lengthy
    adjournment when, in the midst of cross-examining R.B., the appellants trial
    counsel realized she had not received a videotaped statement that R.B. had
    provided to the police on May 15, 2009. The videotaped statement had been
    provided to the appellants previous counsel as part of the Crown disclosure,
    but had not been passed on to counsel at trial.

[5]

Trial counsel sought a brief recess to review the transcript of the
    videotaped statement, and was granted a 20 minute recess to do so. After the
    recess trial counsel indicated that she was content to proceed and she resumed
    cross-examination, making use of the transcript. She later watched the
    videotaped statement, and confirmed for herself the accuracy of the transcript
    that she had been using. The next day, June 2, she continued her
    cross-examination, using the transcript.

[6]

What happened in the June 1 cross-examination is this: trial counsel
    began to cross-examine R.B. on a sexual encounter for which the appellant had
    not been indicted, and about which R.B. had not been examined in chief. Much
    confusion followed.

[7]

R.B., in the May 15 videotaped statement, had given an account of four
    sexual incidents. The appellant had only been indicted for three of these.
    Trial counsel nevertheless questioned R.B. on her statements about the
    non-indicted incident, on the theory that there were only ever three incidents,
    that R.B. could not keep the details of each one separate, and that this
    inability impaired her credibility.

[8]

Eventually, when the trial Crown understood what defence counsel was
    doing, she objected. The trial judge, upon review of the May 15 transcript,
    concluded that R.B.s videotaped statement chronicled four separate incidents.
    Defence counsel asked for an order under s. 276 of the
Criminal Code
to cross-examine R.B. on the fourth incident. Ultimately, the trial judge did
    not permit cross-examination on this incident. He questioned how there could be
    any inconsistency on which to cross-examine, given that R.B. had not testified
    about the fourth incident, and held that the fourth incident was not relevant
    for the purposes of the trial.

[9]

The trial judge then gave a mid-trial instruction to the jury to ignore
    the evidence that R.B. had given up to that point about the fourth incident. Defence
    counsel was permitted to continue questioning R.B. with respect to
    inconsistencies among her accounts of the three assaults, and she did so.

[10]

The appellant now argues that the cross-examination was deficient in its
    exploration of discrepancies between the videotaped statement and the evidence given
    on examination-in-chief, and that reasonably competent counsel would have
    sought an adjournment so as to have been better prepared to exploit these
    inconsistencies on cross-examination.

[11]

I do not agree that the appellant has met the high bar of establishing
    ineffective assistance of counsel. On an appeal on the basis of ineffective
    assistance of counsel, the burden is on the appellant to establish not only
    that trial counsels performance was incompetent, but crucially, that the
    appellant was sufficiently prejudiced by counsels inadequate performance that
    it amounts to a miscarriage of justice:
R. v. Archer
(2005), 202
    C.C.C. (3d) 60, at paras. 118-121;
R. v. S.(R.)
, 2016 ONCA 655, 341
    C.C.C. (3d) 530, at para. 44.

[12]

The appellant cannot identify any actual prejudice that he suffered on
    account of trial counsel not having obtained an adjournment before commencing
    the cross-examination on the transcript, or in relation to a s. 276
    application. The trial judge ruled that cross-examination on the fourth
    incident was not relevant to the trial. The appellant has not taken issue with
    that ruling. The inconsistencies now identified by the appellant are
    comparatively minor details, and to suggest that examining on these details
    could have led to a different outcome is speculative and doubtful. Whether the
    cross-examination would have been more fruitful had it been undertaken with
    greater preparation is a matter of conjecture. Notably, trial counsel obtained
    an acknowledgment from R.B. that she could have become mixed up about the
    details of the three sexual assaults.

[13]

As I would hold that the appellants claim failed to establish that the
    alleged incompetence resulted in a miscarriage of justice, there is no need to
    assess the adequacy of counsels performance:
Archer
, at para. 121.

[14]

I would hold that the claim of ineffective assistance fails.

B.

Errors related to the charge to the jury

[15]

The appellant raises five grounds of appeal related to the jury charge,
    which can be dealt with summarily. He alleges deficiencies in the charge
    related to (i) collusion, (ii) similar fact evidence, (iii) evidence on
    withdrawn counts, (iv) the length, confusing, and unbalanced nature of the
    charge, and (v) the instruction regarding the rule in
Browne v. Dunn
. In
    my view, none of these grounds have any merit.

(1)

Collusion

[16]

The appellant argues that there ought to have been a specific charge to
    the jury with respect to collusion among the witnesses: particularly, R.B. and
    her four children.

[17]

The jury, however, could have been under no mistake about the defence
    claim of collusion. It was front and centre throughout the trial: R.B. was said
    to be a jealous, spurned woman, who turned the children against their father
    and orchestrated their claims against him. This theory was highlighted during
    the cross-examinations
,
the defence closing address and the
    trial judges review of the defence theory in the charge to the jury.

[18]

No specific charge was sought, and in this context no specific charge
    was needed, either for intentional collusion or an unintentional tainting.

(2)

Similar fact evidence

[19]

The appellant accepts that similar fact evidence was properly admitted
    at trial. He now objects that although the jury was sufficiently instructed
    that they could not use similar fact evidence to conclude that the appellant is
    a bad person and therefore likely to have committed the offences, the jury was
    not sufficiently instructed on the positive use to which they could put that
    evidence. In my view, there is no merit to this submission.

[20]

The instruction to the jury was adequate and no objection to it was
    raised at trial. No injustice resulted from the absence of a more detailed
    instruction as to how the evidence of how assaults against one member of his
    family supported the complaints by other members of the family.

(3)

Evidence on withdrawn charges

[21]

Encouraged by the trial judge, the Crown withdrew eight counts in an
    attempt to streamline the trial. The appellant argues, for the first time, that
    the jury ought to have been instructed to disregard any evidence related to
    these withdrawn charges.

[22]

There was no error, in my view. The evidence related to the withdrawn
    charges was properly admissible as similar fact evidence in relation to other
    counts still before the jury.

(4)

Unbalanced charge

[23]

The appellants argument is that the charge was unduly complex, and that
    the trial judge unduly emphasized the Crowns case.

[24]

Again, I see no merit in the submission that the jury charge was unduly
    complex.

[25]

With respect to the argument that the charge emphasized the Crowns case,
    in a trial such as this, where there is a large number of charges comprising a
    continuous course of conduct against the same set of complainants over a 10
    year period, the jury charge will necessarily contain some repetition. When
    that is coupled with a defence that is a more or less blanket denial of each
    charge, there will be a superficial imbalance. But it is not an imbalance in
    the requisite sense as set out in
R. v. Nelson
, 2014 ONCA 853, 318
    C.C.C. (3d) 476, at para. 47.

(5)

Rule in
Browne v. Dunn

[26]

In cross-examining defence witnesses, the Crown noted that some of the
    events to which defence witnesses had testified were not put to Crown witnesses
    on cross-examination, so that they might have the opportunity to provide their
    account of these events: for example, the appellants testimony that what appeared
    to be a scar on the chest of one of the children was not caused by the
    appellants use of a sword, but by a cat. This failure to cross-examine engaged
    the rule in
Browne v. Dunn
.

[27]

The trial judge declined the Crowns request that he give an instruction
    on the failure to cross-examine because, in his view, it related to peripheral
    matters to a certain extent. The appellant argues that in the absence of an
    instruction, the jury would be left with the impression that the appellant
    should be held responsible for defence counsels errors. In my view, there is
    no merit in this submission.

[28]

With the trial judges permission, both counsel addressed the issue in
    their closing addresses. In the Crowns submissions, the jury was told that
    where a Crown witness is not cross-examined on an alternative version of
    events, the jury is entitled to place less weight on contradictory defence
    evidence and to use the absence of cross-examination in assessing the
    credibility of the defence witness.  In defence counsels closing address, she
    told the jury that it was open to the Crown to recall witnesses to explore
    these issues, which the Crown had also acknowledged. Both of these submissions
    were accurate and, contrary to the appellants submissions, in the circumstances
    of this case, there was nothing improper in the trial judge allowing counsel to
    address the issue, nor was there need for further comment from the trial judge
    in order to balance these submissions.

Disposition

[29]

I would dismiss the appeal.

Released: BWM FEB 15 2017

B.W. Miller J.A.

I agree. Janet Simmons
    J.A.

I agree. G. Pardu
    J.A.


WARNING

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

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

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

(a)       any
    of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dyce, 2017 ONCA 123

DATE: 20170214

DOCKET: M47426 (C60818)

Juriansz J.A.

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Wayne Dyce

Appellant (Applicant)

Wayne Dyce, acting in person

Nader R. Hasan, duty counsel

Michelle Campbell, for the Crown

Heard: February 6, 2017

ENDORSEMENT

[1]

The appellant, with the assistance of duty counsel, applies for an order
    under s. 684 of the
Criminal Code
assigning counsel to act on his
    behalf on the appeal. The Crown acknowledges he lacks sufficient means to
    retain legal assistance. The only issue is whether it appears desirable in the
    interests of justice that the appellant should have legal assistance.

[2]

Mr. Hasan submits there are three
    grounds on the conviction appeal for which the appellant should have legal
    assistance.

[3]

I see no merit in the first submission the
    trial judge erred by not instructing the jury on the dangers of propensity
    reasoning on the multi-count indictment. In my view, this was not a case in
    which it was legal error to fail to give such an instruction. Both sides
    presented significant evidence that applied to all counts  for example, the
    evidence supporting the appellants position the complainant had a motive to
    lie. In any event, the jury evidently understood the trial judges instruction
    to consider the charges separately: they acquitted the accused on four of the
    six charges he faced.

[4]

Nor do I see merit in the submission the
    trial judge failed to instruct the jury on the defence of honest but mistaken
    belief that the complainant consented. In my view there was no air of reality
    to that defence.

[5]

However, I accept it is arguable the
    trial judge failed to provide the jury with adequate assistance in dealing with
    the assessment of the parties credibility (on which the entire case turned).

[6]

First, where, as here, credibility is a
    crucial issue at trial, failure to specifically and adequately instruct the
    jury on credibility and the burden of proof may constitute a reversible error.
    As the Supreme Court held in
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8:

A series of decisions over at least
    the past 20 years has affirmed and reaffirmed the proposition that where
    credibility is a central issue in a jury trial, the judge must explain the
    relationship between the assessment of credibility and the Crowns ultimate
    burden to prove the guilt of the accused to the criminal standard.  A general
    instruction on reasonable doubt without adverting to its relationship to the
    credibility (or lack of credibility) of the witnesses leaves open too great a
    possibility of confusion or misunderstanding.

[7]

This concern has at least arguable
    merit on this record. The trial judge did review for the jury the appellants position
    the complainant (i) had a motive to fabricate and (ii) might not be reliable
    due to un-medicated bipolar disorder. She also gave a general instruction that
    it was up to the jury how much or little they chose to believe, using their
    common sense, from each witness. But there was no specific instruction on how
    to assess credibility, or the relationship between credibility and the burden
    and standard of proof.

[8]

The necessity of such an instruction in
    this case may be considered in the context of Count 2 of the indictment. Count
    2 charged that the appellant assaulted the complainant. The complainant
    testified this occurred that while she was a passenger in a car the appellant
    was driving. Dissatisfied with the way she was handling a call to Community
    Legal Assistance Sarnia, the appellant hit her three times in the head. The
    complainant testified she told the person to whom she was speaking that she was
    being hit. By contrast, the appellant testified that he made the call. The
    secretary of Community Legal Assistance Sarnia was called and testified she
    received a call from the appellant, not the complainant, and there had been no
    allegation of any assault.

[9]

The trial judge provided no instruction
    to the jury of the import of this evidence for the complainants overall credibility
    in the event they concluded she had fabricated or not told the truth about this
    event. Rather, in the course of her instructions on Count 2, the trial judge
    merely told the jury the appellant submitted that an independent witness
    supports his version of events as it relates to the incidents surrounding the
    cell phone incident.

[10]

I consider it arguable that a more
    fulsome instruction about credibility assessment was required in this case.

[11]

Second, a trial judge should generally
    instruct the jury on the limits of demeanor evidence in assessing credibility.
    The Canadian Judicial Councils
Model Jury Instructions
, Part I, Preliminary Instructions, 4.11 Assessing
    Testimony (online: https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/?langSwitch=en)
    includes the following instruction:

What was the witnesss manner when he
    or she testified? Do not jump to conclusions, however, based entirely on the
    witnesss manner. Looks can be deceiving. Giving evidence in a trial is not a
    common experience for many witnesses. People react and appear differently.
    Witnesses come from different backgrounds. They have different intellects, abilities,
    values, and life experiences.
There are simply too many variables to make
    the manner in which a witness testifies the only or the most important factor
    in your decision.
[Emphasis added].

See also David Watt,
Watt's
    Manual of Criminal Evidence
, 2nd ed. (Toronto: Thomson
    Reuters, 2015), at p. 268.

[12]

This model instruction is well founded
    both in law and common sense. In

R. v. Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85, Epstein
    J.A. cited the growing understanding of the fallibility of evaluating
    credibility based on the demeanour of witnesses:

It is now acknowledged that demeanour
    is of limited value because it can be affected by many factors including the
    culture of the witness, stereotypical attitudes, and the artificiality of and
    pressures associated with a courtroom. One of the dangers is that sincerity can
    be and often is misinterpreted as indicating truthfulness.

See also
Law
    Society of Upper Canada v. Neinstein
, 2010 ONCA
    193, 99 O.R. (3d) 1, at para. 66, and
R. v. Hemsworth
, 2016 ONCA 85, [2016] O.J. No. 505, at paras. 44-45.

[13]

In this case the trial judge did not
    provide any assistance to the jury in their consideration of the parties
    demeanour in the assessment of credibility. In fact, the trial judge emphasized
    the Crowns position regarding the complainants demeanour: her testimony had
    the ring of truth; she testified in a manner that was simple and
    straightforward; she appeared to do her best to answer all of the questions. A
    submission based on the failure to instruct the jury on the limitations of such
    evidence in assessing credibility has arguable merit on this record.

[14]

I conclude it appears desirable in the
    interests of justice that the accused should have legal assistance in advancing
    the ground of appeal that the trial judge provided inadequate assistance to the
    jury in the assessment of credibility.

[15]

I turn now briefly to the sentence
    appeal. The appellant proposes to appeal sentence on the basis of alleged
    errors in respect of the trial judges approach to sentencing on the sexual
    assault charge. It does not appear desirable in the interests of justice that
    the appellant should have legal assistance to advance this ground. That is
    because the sentence he received on the sexual assault charge was concurrent to
    his sentence on the sexual assault with a weapon charge. Even if the trial
    judge erred in the manner the appellant alleges, his overall sentence would not
    be affected.

Conclusion

[16]

I direct the appellant to request the Legal
    Aid Committee to reconsider its refusal in light of these reasons. In the event
    the Committee maintains its refusal of legal aid, I order Mr. Hassan be
    assigned counsel for the appellant to advance on the appeal the credibility
    ground only, and that his fees and disbursements be paid by the Attorney General
    on the Legal Aid scale.

"R.G.
    Juriansz J.A."


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Freeland, 2017 ONCA 137

DATE: 20170215

DOCKET: C62045

Doherty, Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Freeland

Appellant

Eve Thériault, for the appellant

Kevin Rawluk, for the respondent

Heard:  February 14, 2017

On appeal from the conviction entered by Justice A.G.
    Letourneau of the Ontario Court of Justice, dated March 30, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that the verdict was unreasonable.  We cannot
    agree.  The victim testified that he knew the appellant and recognized his
    voice.  He also recognized a can of bear mace wielded by the robber as having
    been in the appellants possession on a previous occasion.  The victim also
    recognized the appellant when he pulled his assailants mask off during a
    struggle.

[2]

Apart from the victims evidence, there was other evidence that the
    robbers first name was Matt.  All of this evidence provided a basis upon
    which a reasonable trier of fact could convict.  The appellant did not testify.

[3]

The appellant also argues that the reasons were insufficient.  We cannot
    agree.  The reasons demonstrate a firm grasp of the evidentiary record and an appreciation
    of the crucial issue  the dangers inherent in identification/recognition
    evidence.  The trial judge addressed some of the inconsistencies between the
    evidence of the victim and two other Crown witnesses.  He did not refer to the
    conversation between the victim and a man named Lloyd.  In our view, that
    evidence had little, if any, impeachment value and the trial judge cannot be
    faulted for not dealing with the evidence in his reasons.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Garabet, 2017 ONCA 139

DATE: 20170217

DOCKET: C59880

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Haig Robert Garabet

Applicant/Appellant

Mark J. Sandler and Amanda Ross, for the appellant

Howard Piafsky, for the respondent

Heard: January 30, 2017

On appeal from the conviction entered on June 26, 2014 by
    Justice D. Halikowski of the Ontario Court of Justice.

By the Court:

[1]

The appellant, self-represented at trial, challenged the admissibility
    of evidence seized from his residence and his vehicle pursuant to search
    warrants. He was granted leave to cross-examine the police officer who swore
    the information to obtain (ITO) in support of the search warrants. The
    cross-examination revealed that the central fact implicating the appellant in
    the ITO was false. However, the trial judge dismissed the appellants s. 8
Charter
application to set the warrants aside and, on the basis of the evidence found
    at the residence and in the vehicle, convicted the appellant of possession of
    controlled substances and possession of controlled substances for the purpose
    of trafficking.

[2]

Before this court, the appellant submits that the trial judge erred in
    refusing to set aside the warrants and in failing to find a s. 8 breach. He
    further submits that in the circumstances of the case, evidence obtained as a
    result of the warrants should be excluded pursuant to s. 24(2) of the
Charter
.

The ITO

[3]

In the course of an investigation into the activities of an alleged
    cocaine trafficker (not the appellant), the police learned that two officers,
    PC Tara Kramp and PC Basil Odei, were likely implicated in illicit drug
    dealing. The appellants former business partner, Nelson DaSilva, also appeared
    to be implicated. The police intercepted a text message forwarded by Odei to
    Kramp that appeared to set up a drug transaction for controlled substances, specifically
    steroids and GHB, at one of the stores owned by the appellant. The ITO alleged
    that the appellant was the person who had initiated that text message. It was
    conceded by the Crown at trial that the appellant had not sent the text message,
    and that it had been sent instead by an employee who worked at one of his
    stores.

[4]

The only other evidence in the ITO relating to the appellant was that
    two years earlier there had been a break-in at one of his stores. When the
    police investigated they found white powder believed to be cocaine on the
    surfaces of two digital scales, along with empty dime bags and a debt lists.  For
    reasons unexplained, they neither seized anything nor laid any charges as a
    result. The ITO also indicated that Tara Kramp had stated, based on a
    conversation she had had several months earlier, that she believed the
    appellant was engaged in cocaine trafficking.

Execution of the search warrants

[5]

The appellant resided with his wife and child in the basement of the
    home owned by his in-laws. Knowing that the appellant was not present at the
    residence at the time, and having no information that he had firearms or other
    weapons at his home, the police executed a dynamic entry. A tactical squad of
    eleven officers wearing goggles, helmets and balaclavas used a battering ram to
    bash in the door. The appellants father-in-law was handcuffed. He asked
    repeatedly to see the search warrant, and the trial judge accepted his evidence
    over that of the police officers in finding that he was never shown a copy of
    the warrant, contrary to s. 29(1) of the
Criminal Code
.

[6]

The search was not restricted to the appellants basement apartment. The
    entire house was searched.

[7]

The police found a quantity of cocaine at the appellants residence, and
    then obtained a warrant to search his car, where they found a variety of
    controlled drugs, drug paraphernalia, and items associated with drug
    trafficking. Search warrants for the appellants two stores were also obtained
    and executed. No drugs or related items were found at the stores.

Analysis

Validity of the warrants

[8]

In our view, the trial judge misapprehended the evidence in relation to
    the text message. He failed to appreciate that the text message formed the
    basis of the case made out in the ITO for a search warrant of the appellants
    residence. The trial judge characterized the appellants position as being that
    the police officer who swore the ITO had failed to specify clearly why he
    believed the third-party text message had originated from the appellant. With
    respect, that fails to recognize the significance of the error as to the
    originator of the text. The officers mistaken belief that the appellant had
    sent the text message setting up a drug transaction was the central fact upon
    which he relied when he stated that there were reasonable grounds to believe
    that there was a quantity of controlled substance at the appellants residence.

[9]

We do not agree with the respondents position that even if the
    incorrect information regarding the text message is removed from the ITO there
    remains sufficient evidence to justify the warrants.

[10]

The
    evidence relating to the appellants alleged cocaine trafficking was dated,
    imprecise and inconclusive, and insufficient to sustain the warrant.

[11]

The
    search of the appellants two stores was justified by the ITO, as the text
    message indicated that a drug transaction was planned to take place at one of
    the stores. However, in our view, the ITO failed to provide a basis to justify
    a search of his residence. There is no suggestion in the ITO that the appellant
    kept drugs in his residence. No surveillance was conducted of the residence.
    The suggestion advanced in oral argument on this appeal that the burglary two
    years earlier at one of the appellants stores might have prompted him to keep
    drugs at his residence is entirely speculative, and was not advanced in the ITO
    or at trial. The statement in the ITO that drug dealers often use stash
    houses to store their drugs was made in relation to Nelson DaSilva and not the
    appellant.

[12]

We
    also agree with the appellants submission that the search warrant was
    overbroad. It authorized the search and seizure of a long list of items, including:
    banking and financial documents; telephone records; photographs; documents
    relating to the occupancy or ownership of the place; and any data stored in
    electronic devices such as computers, mobile phones, blackberry devices, or any
    other devices with memory capable of storing data. Justification for the search
    of the appellants car was based entirely on the fruits of the unlawful search
    of his residence.

Section 24(2)

[13]

Since t
he trial judge concluded that
    the searches of the appellants residence and vehicle did not violate s. 8 of
    the
Charter
, he did not consider s. 24(2). This court is in a position
    to conduct the analysis under
R. v. Grant
, [1993] 3 S.C.R. 223. The
    court is to determine whether admitting the evidence would bring the
    administration of justice into disrepute, taking into account: (i) the
    seriousness of the
Charter
-infringing state conduct; (ii) the impact
    of the breach on the
Charter
-protected interests of the appellant; and
    (ii) societys interest in an adjudication on the merits.

[14]

There
    are several factors in this case that impact the seriousness of the
Charter-
infringing
    state conduct. The search of the appellants home was based on an ITO which the
    Crown admitted was not well put together. The offence being investigated was
    conspiracy to traffic, yet the wiretaps demonstrated that the appellant was not
    communicating with the alleged co-conspirators. There was no evidence that
    there would be drugs at the appellants home. The suggestion that it was a
    stash house was speculation. The officer who swore the ITO testified that the
    police did not have to have information that drugs were in the appellants
    home. As stated by Juriansz J. in
R. v. Jones
, 46 C.R. (5th) 318 (Ont.
    S.C.), at para. 31: The Charter violation is exceedingly serious in that it
    involves the search of a persons home [] on the basis of speculation.

[15]

Further,
    the way the warrant for the residence was executed aggravated the seriousness
    of the state conduct. The dynamic entry, while not illegal, was unnecessary, as
    the appellant had been arrested and was in custody at the time of the search.
    The police knew that the appellant lived with his wife, child and in-laws. There
    was no suggestion that they were part of any illegal activity. Although the
    trial judge found that the warrant was present during the search, it seems
    clear that it was never shown to the appellants father-in-law, who was
    handcuffed by the police and initially told he was under arrest. The warrant
    itself was overbroad. It included the entire home, cellphones, data,
    photographs and financial documents.

[16]

The
    breach had a significant impact on the
Charter
-protected interests of
    the appellant in that it involved entry into his private residence.

[17]

While
    society has an interest in having the matter adjudicated on the merits, the
    court must also consider the impact of admitting the evidence on the
    administration of justice. As stated in
Jones
, at para. 32: the
    regular admission of evidence obtained from peoples homes, where there is not
    a proper basis for a search would bring the administration of justice into
    disrepute.

[18]

A
    combination of all of these factors leads us to conclude that s. 24(2) of the
Charter
must be applied to exclude the evidence.

Disposition

[19]

Without
    the evidence seized pursuant to the search warrants, there is no basis for
    these convictions. Accordingly, the appeal is allowed, the convictions are set
    aside, and acquittals are entered.

Released: February 17, 2017

Robert J. Sharpe
    J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Hammond, 2017 ONCA 144

DATE: 20170216

DOCKET: C61885

Doherty, Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Hammond

Appellant

Richard Litkowski, for the appellant

Mabel Lai, for the respondent

Heard:  February 16, 2017

On appeal from the conviction entered by Justice Schwarzl
    of the Ontario Court of Justice, dated January 22, 2016, and the sentence
    imposed on April 1, 2016.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the reasons.  The trial judge identified intent as
    one of the issues.  His finding that the appellant made a throat cutting
    gesture was fully supported, not only by the complainants evidence, but also
    by the appellants statement made immediately after he made the gesture.  The
    finding that the gesture was made with the requisite intent flowed inevitably
    from the finding of the nature of the gesture made by the appellant.  Even the
    appellant acknowledged that if he made the throat cutting gesture, it would
    be a threatening gesture.

[2]

The trial judge imposed a sentence of eight months, followed by 18 months
    probation.  He identified the many mitigating factors and the aggravating
    factors.  This was a serious offence.  The appellant attempted to intimidate a
    particularly vulnerable witness and he did so in the face of the court.  A
    denunciatory sentence was necessary.  The trial judge correctly identified the
    protection of the judicial process and those who participate in it as the
    paramount concern.

[3]

We cannot say that the sentence is demonstrably unfit.

[4]

The appeal is dismissed.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable
    on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.O-M., 2017 ONCA 106

DATE: 20160209

DOCKET: C61270

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.O-M.

Appellant

Owen Goddard, for the appellant

Brock Jones, for the respondent

Heard: October 21, 2016

On appeal from the disposition imposed on November 4,
    2014 and January 14, 2015 by Justice D. Lahaie of the Ontario Court of Justice,
    sitting without a jury.

Benotto J.A.:

[1]

The appellant was convicted of serious offences which she committed when
    she was 15 years old. She was, as the trial judge found, the ringleader of an
    organized and vicious human trafficking enterprise. She forced several other
    teenage girls to work as prostitutes. If they defied her, she would threaten
    them or commit acts of violence. She took photos of them in sexually explicit
    circumstances and threatened to broadcast or distribute them.

[2]

The appellant received an adult sentence of six and one half years in custody.
    After credit for pre-sentence custody, there remained three years to be served.
    Three years is the maximum youth sentence available in these circumstances. She
    seeks leave to appeal her sentence on the basis that a three-year youth
    sentence would have been of sufficient length to hold her accountable and the
    sentencing judge erred in not imposing it. If leave is granted, she asks this
    court to substitute a youth sentence. The Crown opposes the appeal.

[3]

The appellant seeks to have fresh evidence admitted relating to her
    rehabilitative progress in custody at the Grand Valley Institution. The Crown does
    not oppose the admission of the fresh evidence. The progress made by the
    appellant is relevant to this appeal and, in light of the Crowns position, I
    would admit the fresh evidence.

[4]

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

Facts

[5]

The appellant was born in July 1996. The offences were committed in May
    and June 2012 when she was 15.

[6]

The convictions related to five complainants. These girls ranged in age
    from 13 to 18.

[7]

Three complainants alleged that, on separate occasions, they were lured
    to the appellants house through promises of a sleepover or party. They were 13,
    16 and 17 years old. When they arrived, they were forced to put on provocative
    clothing. In some cases they were given alcohol or drugs. The appellant took
    photos of some complainants and used the photos to advertise them to clients. The
    appellant solicited men to have sex with the girls for money and took them to
    meetings she had arranged. She forced compliance by threatening, forcibly
    confining and assaulting the complainants. Three of the complainants testified that
    they performed oral sex on men to whom the appellant had brought them. The
    appellant was convicted of 23 offences in relation to these complainants,
    including human trafficking, unlawful confinement, uttering threats, robbery,
    assault and sexual assault.

[8]

The fourth complainant, a developmentally-delayed 18 year old woman,
    said the appellant asked her to go to Montreal to work as a prostitute. The
    appellant was convicted of procuring a person to become a prostitute.

[9]

The fifth complainant said the appellant asked her at a party to become
    a prostitute. The appellant took naked pictures of her when she passed out
    drunk. The appellant was convicted of making and possessing child pornography.

[10]

The appellant does not challenge the convictions.

The sentencing

[11]

The parties agreed that the appellant was eligible for custody because
    of the seriousness of the offences and the violence involved:
Youth
    Criminal Justice Act
, S.C. 2002, c. 1,

s. 39(1)(a) and (d). Three
    years was the maximum youth sentence that could have been imposed, given that
    there were different offences: s. 42(15).

[12]

The appellant requested a three year youth sentence, and asked that she
    be given no credit for pre-sentence custody so that this sentence would fall
    within the youth maximum. The Crown submitted that she should receive an adult
    sentence of three years in addition to pre-sentence custody calculated at 1.5:1.

[13]

The imposition of an adult sentence is governed by s. 72(1) of the
YCJA
.
    On agreement of the parties, the trial judge applied the version of the section
    in force until October 22, 2012 which provided as follows:

In making its decision on an
    application heard in accordance with section 71, the youth justice court shall
    consider the seriousness and circumstances of the offence, and the age,
    maturity, character, background and previous record of the young person and any
    other factors that the court considers relevant, and

(a) if it is of the opinion
    that a youth sentence imposed in accordance with the purpose and principles set
    out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to
    hold the young person accountable for his or her offending behaviour, it shall
    order that the young person is not liable to an adult sentence and that a youth
    sentence must be imposed; and

(b) if it is of the opinion
    that a youth sentence imposed in accordance with the purpose and principles set
    out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length
    to hold the young person accountable for his or her offending behaviour, it
    shall order that an adult sentence be imposed.

[14]

The sentencing judge reviewed the appellants personal circumstances. Her
    childhood home was highly dysfunctional. Her mother was a drug addict, exotic
    dancer and prostitute. Her father abused substances and was convicted of
    assaulting her mother. He was complicit in the mothers prostitution. They
    separated when the appellant was 14. The Childrens Aid Society was involved on
    multiple occasions.

[15]

The sentencing judge also considered the Pre-Sentence Report. The
    appellant began associating with persons in their twenties when she was in the
    sixth grade. Her pro-social relationships ended at this time and she began
    abusing drugs and alcohol. The appellants school attendance was poor
    throughout her life. After arrest, the appellant was incarcerated at Sundance,
    a youth detention facility. There, she completed several high school credits
    with a high average. She is intelligent and wanted to become an occupational
    therapist. She completed a number of programs and demonstrated insight into her
    own thoughts and behaviours. She is independent and capable of following rules
    and expectations. However, Sundance staff described the appellant as a manipulator
    who plays the game. She showed little emotion and was noted as having no
    sense of compassion for peers at Sundance. She gravitated towards other sex
    workers in detention and used her street name.

[16]

The sentencing judge ordered a
YCJA
s. 34 assessment. The
    appellant scored as a high risk for future serious violence. The behavioural
    profile suggested narcissistic and antisocial personality functioning that was sociopathic
    in scope. The assessor recommended that the appellant be able to access
    resources within the youth criminal justice system rather than the adult
    system.

[17]

The sentencing judge found that the appellant had little, if any, desire
    to change. She was going through the motions and doing what she perceived as
    necessary to receive the best possible outcome and least restrictive sentence
    from the court.

[18]

The sentencing judge found that the Crown had rebutted the presumption
    of reduced moral blameworthiness despite the appellants age at the time of the
    offences. While she was a product of a poor upbringing, she was highly
    independent and intelligent and had created an adult world for herself. The
    offences were extremely serious. The sentencing judge found that a youth
    sentence would not hold [the appellant] accountable for her actions.

[19]

The sentencing judge then proceeded to consider the mitigating factors:
    the appellants age; that she was a first offender; that she is highly
    intelligent; that she had completed many of her high school credits and had
    accessed services in detention; that she had a very difficult background; and that
    she expressed remorse.

[20]

The sentencing judge also considered the aggravating factors:  there
    were multiple victims and the impact of the offences on them was significant.
    Some had thoughts of suicide. The appellants actions were predatory,
    well-organized and premeditated. There was troubling violence. She exploited
    the vulnerable. She abused drugs and alcohol and forced the victims to do the
    same. Her activities were for her own profit. Her conduct in custody was not
    exemplary and her risk of re-offending was high.

[21]

The sentencing judge concluded that an adult sentence of six and one half
    years was appropriate. She then granted credit for pre-sentence custody of 878
    days at the ratio of 1.5:1 for a total credit of 1,317 days.

Issues on appeal

[22]

The issues are (i) whether the sentencing judge failed to follow the
    requirement in former s. 72 of the
YCJA
that she consider whether a
    youth sentence was of sufficient length to hold the appellant accountable and
    (ii) whether she erred in refusing the appellants request for no credit for
    pre-sentence custody.

Positions of the parties

Appellants position

[23]

The version of s. 72 applied by the sentencing judge provided that
    judges could only give adult sentences to young persons if they were of the
    opinion that a youth sentence would not be of sufficient length to hold the
    young person accountable for their crime. If the youth sentence would be of sufficient
    length to hold the young person accountable, it had to be imposed. The
    sentencing judge did not follow this framework. She did not consider whether a
    youth sentence would be long enough to hold the appellant accountable for her
    offences. She focused on whether the Crown had rebutted the presumption of
    diminished moral blameworthiness. She found that it had. In her mind, this
    meant that an adult sentence was required. She never asked whether a youth
    sentence was long enough to hold the appellant accountable.

[24]

With respect to pre-sentence custody, the Crown was seeking an adult
    sentence of an additional three years in custody, and the defence was seeking
    no credit for the pre-sentence custody and a three-year youth sentence. The
    sentencing judge erred in concluding that the appellants case was not one of
    those exceptional cases where pre-sentence custody should be discounted in
    order to fall within the range for a youth sentence. The appellant submits
    that credit for pre-sentence custody is supposed to help an offender and not
    lead to an increased sentence.

Respondents position

[25]

The sentencing judge considered all the requirements of then s. 72 of
    the
YCJA
. Her decision, when read as a whole, reveals that she was of
    the view that a youth sentence would not be of sufficient duration to hold the
    appellant accountable for her offences. The sentencing judges emphasis on the
    appellants moral culpability was appropriate.

[26]

With respect to pre-sentence custody, the sentencing judge rejected the
    defence request to give the appellant no credit and impose a youth sentence.
    She said that this was not one of those exceptional cases where pre-sentence
    custody should be discounted in order to fall within the range for a youth
    sentence. This is not a reviewable error. The decision to grant or not grant
    credit is discretionary and entitled to deference on appeal.

Analysis

[27]

The threshold for appellate intervention on sentence was recently
    modified by the Supreme Court of Canada in
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089. The new test was summarized by Laskin J.A. in
R. v.
    Grant
, 2016 ONCA 639, 351 O.A.C. 345, at para. 162:

[W]hen sentencing an individual offender, trial judges have a
    broad discretion and the exercise of that discretion is entitled to deference
    on appeal. An appellate court is justified in interfering with the sentence
    only if the trial judge imposed a sentence that is
demonstrably
    unfit or committed an error in law or principle that had an impact on the
    sentence
. An error in principle includes the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor. [Citation omitted; emphasis added.]

[28]

I see no error of law or principle in the sentencing judges application
    of s. 72 or in her treatment of pre-sentence custody.

Section 72

[29]

The Crowns submission that the appellant should receive an adult
    sentence engaged s. 72(1) of the
YCJA
.

[30]

The Crown has the onus of satisfying the court with respect to s.
    72(1)(b). In
R. v. A.O
., 2007 ONCA 144, 84 O.R. (3d) 561, at para. 42,
    this court wrote that accountability is:

the purpose that the youth court judge must consider when
    deciding an application to impose an adult sentence on a young person.
    Accountability is achieved through the imposition of meaningful consequences
    for the offender and sanctions that promote his or her rehabilitation and
    reintegration into society.

[31]

The court further noted, at para. 47 that a sentence which holds the
    young offender accountable must reflect, as does a retributive sentence, the
    moral culpability of the offender and the harm caused.

[32]

The appellant submits that, since the equivalent of a three-year adult
    sentence was ultimately imposed, a three year youth sentence would have been of
    sufficient length to hold her accountable.

[33]

I do not agree.  The sentencing judge concluded that a sentence of six
    and a half years  not three years  was necessary. Clearly, she was of the
    opinion that a three-year sentence was not of sufficient length. The sentencing
    judge found that the crimes were vicious and premeditated acts designed to
    instill fear, shame, and dominance and to prevent the victims from escaping.
    They were organized and sophisticated offences, targeting vulnerable victims
    for financial gain. While the appellant was only 15, she was capable of adult
    decision-making. A three-year sentence would not have properly reflected the
    appellants moral culpability. A longer sentence was required.

[34]

In my view, the trial judges reasons for sentencing demonstrate that
    she did conclude  based on all the evidence  that the youth sentence would
    not be of sufficient length to hold the young person accountable. I am not
    satisfied that the effects of the adult sentence on her future prospects
    relating to expunging her record or remaining on the national and provincial
    sex offender registries  would have altered the trial judges conclusion.  She
    sentenced her to six and one half years, not three years. Had it not been for
    her youth, the appellant would have received substantially more.

Pre-sentence custody

[35]

The appellant submits that the sentencing judge erred in refusing the
    request that she grant no credit for pre-sentence custody to bring the total
    sentence within the youth sentence limit: if three years was the net result,
    the sentencing judge should have imposed a youth sentence.

[36]

Under s. 38(3)(d) of the
YCJA
, the sentencing judge was bound
    to consider the time the appellant spent in pre-sentence custody. But it is
    well-established that the sentencing judge has discretion on how to take this
    custody into account:
R. v. D.S.
, 2008 ONCA 740, 93 O.R. (3d) 211;
R.
    v. M.B.
, 2016 ONCA 760. This discretion includes whether and how much
    credit to grant. The decision of the sentencing judge to grant credit for
    pre-sentence custody was within her discretion and I would not interfere with
    it.

The Fresh Evidence

[37]    The fresh evidence demonstrates the progress
    the appellant has made while in custody.  She has completed courses relating to
    women sexual offenders, and has had counselling to assist in her reintegration
    into society.  She has shown a positive attitude and has discussed her plans
    and goals for the future. Her risk of re-offending, initially high has now been
    reduced to low.  She is taking university courses and is now out of custody.

[38]    While I commend the efforts she has made toward
    these positive results, the fresh evidence does not alter my conclusion.

Disposition

[39]    I would grant leave to appeal the sentence but
    dismiss the sentence appeal.

Released: February 9, 2017

M.L. Benotto J.A.

I agree David Watt
    J.A.

I agree P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lincoln, 2017 ONCA 113

DATE: 20170209

DOCKET: C62145

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Lincoln

Appellant

Raymond Lincoln, acting in person

Michael Dineen, duty counsel

Hafeez S. Amarshi, for the Crown

Heard: February 7, 2017

On appeal from the conviction entered on May 4, 2016 by
    Justice Gregory P. Rodgers of the Ontario Court of Justice.

APPEAL BOOK
    ENDORSEMENT

[1]

The trial judge found the appellant was in possession of cocaine found
    concealed under the driver's seat of the car he was driving. The Crown concedes
    that in reaching that finding the trial judge should not have taken into
    account that the appellant was in the presence of a person known as an active
    member of the drug trade.

[2]

We apply the proviso. The other factors considered by the trial judge
    establish beyond a reasonable doubt the appellant was in possession of the
    cocaine.

[3]

The appeal is dismissed.