WARNING

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

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

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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)       any of the following offences:

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

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

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

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

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

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

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

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

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

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

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

CITATION: R. v. M.B., 2011
          ONCA 76

DATE: 20110127

DOCKET: C50391

COURT OF APPEAL FOR ONTARIO

Laskin, Goudge and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. B.

Appellant

Catriona Verner, for the appellant

John Pearson, for the respondent

Heard: December 7, 2010

On appeal from the conviction
          entered on January 15, 2008, by Justice Robert A. Clark sitting with a jury and
          from the sentence imposed on August 18, 2008, by Justice Robert A. Clark and
          from the conviction entered on June 8, 2008, by Justice Nancy J. Spies of the
          Superior Court of Justice.

Goudge J.A.:

[1]

On January 15, 2008, after a trial by judge and jury, M.B. was convicted
    of one count of sexual touching and one count of sexual assault in relation to
    each of his two nieces, K.B. and J.B. He was subsequently sentenced to six
    years imprisonment. On June 8, 2008, after a second trial by judge alone, he
    was convicted of sexual touching and sexual assault in relation to his nephew
    C.B., for which he received a three year sentence.

[2]

He appealed both his convictions and his six-year sentence in the first
    trial.

[3]

On December 9, 2010, this court allowed his appeals from conviction and
    ordered new trials in each case. It was therefore unnecessary to deal with his
    sentence appeal. The court issued brief reasons for its decision, with fuller
    reasons to follow. These are those reasons.

THE FIRST TRIAL

[4]

The complainants K.B. and J.B. are daughters of the appellants brother.
    On two occasions when the girls were young, the appellant lived with his
    brothers family, each time for several months.

[5]

K.B. and J.B. were the Crowns only witnesses at trial. The trial judge
    ruled that the evidence of each could be used by the jury as similar fact
    evidence in evaluating the evidence of the other.

[6]

Their allegations were first disclosed to their mother during a visit to
    the home of a family friend in 2005. At the time, K.B. was nine years old and
    J.B. was eleven.

[7]

According K.B., she and her sister were in a room with a young girl of
    the family they were visiting when K.B. first disclosed that she had been raped
    by their uncle, the appellant. She said that J.B. then first disclosed that she
    too had been raped by their uncle, and immediately went to tell their mother.
    J.B. testified that K.B. disclosed her allegations directly to their mother
    while J.B. was listening, and that she then did the same.

[8]

At trial, K.B.s evidence on the sexual touching count was that on one
    occasion, in 2003 or 2004, the appellant came into her room in the morning,
    picked her up, placed her on his lap facing him, and raped her. She could
    remember very little about the incident itself. She said it hurt a little not
    a lot. She went back to sleep and when she woke had no memory of the assault.
    She did not bleed and had no other injuries. She did not remember the incident
    until a few months later.

[9]

On the sexual assault count, K.B. testified that the appellant touched
    her legs on more than one occasion, although she was uncertain how many. Again,
    she recalled few details, but said that he did not stop when she told him to.
    She said that although she shared a room with J.B., her sister was not there
    during any of these incidents. J.B., on the other hand, testified not only that
    she witnessed the appellant touching K.B.s legs on various occasions, but that
    she attempted to wake her sister during the assaults.

[10]

J.B.s evidence of sexual touching was that the appellant had sexual
    intercourse with her on seven occasions. She described one occasion where he
    put her on the counter in the bathroom and raped her. She said it hurt but
    there was no bleeding. She did not see a doctor or tell anyone about the
    incident. She recalled no other details and gave almost no details at all about
    the other six assaults except the city that they were living in when the first
    of these occurred. That put the incident in 1999 when she was five or six years
    old.

[11]

On the sexual assault count, she testified that the appellant had
    touched her leg inappropriately on a number of occasions. In particular, he had
    touched her between her ankle and her knee.

[12]

The appellant testified and denied ever touching either girl
    inappropriately.

[13]

Following the address by the defence, the address by the Crown (about
    which more is said below) and the charge, the jury retired to deliberate. When
    they returned they informed the court that they could not agree on a verdict
    with respect to some of the counts. They were exhorted, and later returned with
    convictions on all four counts.

THE SECOND TRIAL

[14]

At his second trial, which was before a judge
    alone, the appellant was convicted of sexually assaulting and sexually touching
    C.B., the older brother of K.B. and J.B.

[15]

The Crowns primary witness was C.B. However,
    the trial judge permitted the Crown to adduce the evidence of K.B. and J.B. as
    similar fact evidence. The appellants trial counsel did not require the two
    girls to testify again, but permitted the court to rely on the transcript of
    their evidence in the first trial. The appellant testified and denied C.B.s
    allegations.

[16]

The trial judge concluded that, without the
    similar fact evidence, she would have acquitted the appellant. However, she
    held that, as a matter of law, the appellant could not re-litigate the jurys
    verdict in the first trial. She therefore accepted the jurys findings in that
    trial as proof of the fact that the appellant sexually assaulted K.B. and J.B. Thus,
    at his second trial, the appellant was not permitted to contest the evidence of
    K.B. and J.B. As a result, the trial judge convicted the appellant.

THE FIRST APPEAL

[17]

In the brief decision released December 9, 2010,
    we outlined our three reasons for setting aside the appellants convictions for
    sexual touching and sexual assault of K.B. and J.B. and ordering a new trial.
    The following is an elaboration of those earlier reasons.

[18]

Our first reason concerns the risk of innocent
    collusion or influencing of each other by K.B. and J.B. in giving their accounts
    about what the appellant did to them.

[19]

Even without deliberate tainting by others of a
    witnesss evidence, innocent influencing of that evidence sufficient to affect
    its reliability can arise in certain circumstances. In
R. v. J.F.
(2003), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77, this court described the
    concern this way:

The trial judges finding that B.H.
    was sincere, a straight shooter, and not influenced by E.T. and the others,
    fails to take into account that collusion and discussion among witnesses can
    have the effect of tainting a witnesss evidence and perception of events
    innocently or accidentally and unknowingly, as well as deliberately and
    intentionally. The
reliability
of a witnesss account can be undermined
    not only by deliberate collusion for the purpose of concocting evidence, but
    also by the influence of hearing other peoples stories, which can tend to
    colour ones interpretation of personal events or reinforce a perception about
    which one had doubts or concerns. [Emphasis added.]

[20]

In this case, there are five circumstances that together raise the
    possibility of innocent tainting. First, there is some evidence that when they
    revealed what happened to them, K.B. and J.B. had an opportunity, albeit
    limited, to talk with each other about their experiences. Second, in describing
    what happened they both used identical words and phrases (he raped me, he
    put his dick in my bumb) that are not commonly used by young girls of that
    age. Indeed, in the pre-charge discussion with counsel, the trial judge
    indicated that he found this odd and a little disquieting.

[21]

In the pre-charge colloquy, defence counsel (not Ms. Verner) appeared to
    be of the view that only intentional collusion entitled her to ask for an
    instruction on collusion. Hence she made no request for any caution on innocent
    tainting. She and the Crown agreed that no such caution was necessary. As a
    result, the trial judge limited his charge in this area to the usual similar
    fact warning. He instructed the jury that if they found any collaboration by
    K.B. and J.B., they must not use the evidence of one complainant to help decide
    if the other was telling the truth. There was no caution about the possibility
    of innocent tainting of each other by K.B. and J.B. and the relevance of that
    to the assessment the jury was required to make of the reliability of the
    evidence of each of them. In our view, such a caution was warranted in this
    case.

[22]

Our second reason concerns whether the specific frailties of the
    evidence of K.B. and J.B. warranted a caution beyond the generic charge
    concerning youthful witnesses that they do not always have the same ability to
    recall past events with precision, possibly leading to certain inconsistencies
    in their testimony. The trial judge gave the generic instruction. Defence
    counsel did not ask that he caution the jury about the specific frailties they
    might find in the evidence given by K.B. and J.B., especially in light of their
    ages at the time of the events about which they testified. The trial judge did
    not address this issue.

[23]

However, there are a number of particular aspects of their evidence that
    cause concern. For K.B., these include that the rape she described hurt only
    a little and caused no injury despite her very young age; that she went back to
    sleep right afterwards; that she remembered nothing for a month; that she could
    not say on how many occasions the appellant touched her on the leg; and that for
    all the alleged occurrences she could remember very little detail.

[24]

For J.B., there was a similar absence of any detail. She also testified
    that she often slept in her parents bedroom to avoid the appellant. As the
    trial judge said, this was odd, since she also said she was in her own bedroom
    on various occasions when the appellant was allegedly rubbing her sisters legs
    and tried to wake her sister during these assaults.

[25]

These frailties were captured by the trial judge in making his findings
    of fact necessary to sentence the appellant. He summed up his concerns this
    way:

Again, while I do not wish to be taken as saying
    that I disbelieve their evidence, I am sufficiently troubled by the evidence of
    the two young girls, particularly that of J.B., that I am reluctant to rely on
    their accounts beyond the extent to which I am bound to do so by the jurys
    verdicts.

[26]

In these circumstances, it is our view that a specific caution was
    warranted to outline for the jury the risks of accepting the evidence of these young
    complainants. As McLaughlin J. pointed out in
R. v. Marquard
, [1993], 4
    S.C.R. 223, at p. 239, while the evidence of children is not to be approached
    from the perspective of rigid stereotypes, there will be cases where the
    particular evidence given by a particular child witness is such that failure to
    give such a caution will raise the spectre of an injustice and may therefore
    result in reversible error.

[27]

The third reason for our decision is the most important. It concerns the
    closing address by the Crown.

[28]

The first aspect of that address that causes concern is the highly
    emotive and inflammatory language used by the Crown. The appellant was
    described as a predator, and the incidents as terrifying, horrifying to
    imagine, horrifying events, unspeakable and horrific sexual abuse. This
    kind of rhetoric has absolutely no place in the closing address of the Crown.
    Such an appeal to passion seeks to completely deflect the jury from their
    proper role, to dispassionately assess the evidence they have heard.

[29]

After the Crown concluded, and to his credit, the trial judge in the
    absence of the jury severely chastised the Crown. The defence did not move for
    a mistrial. Nonetheless, the trial judge agonized during the lunch break over
    whether to order a mistrial on his own motion. He ultimately decided not to,
    feeling that he could undo the damage with his instructions to the jury. He
    concluded his charge with a very strong direction to the jury to pay no
    attention to these aspects of the Crowns address.

[30]

If that were the only problem with the address we would not be quite so
    concerned. However, there is another particularly troubling aspect of the
    Crowns closing. It is the way the Crown addressed the issue of the
    complainants motive for revealing their stories about what their uncle had
    done to them. The Crown told the jury that no reason for the girls fabricating
    these allegations emerged because there was no such reason since the girls were
    telling the truth. She said this:

However, its not improper for me to ask you to
    reflect on the fact that no reason emerged as to why J.B. or K.B. would
    fabricate these horrible allegations. I would submit to you no apparent motive
    was revealed from their evidence or their admissions, because quite frankly
    there isnt one, the girls are telling the truth.

[31]

The concern raised by these submissions is aptly captured by the words
    of this court in
R. v. L.L.
(2009), 244 C.C.C. (3d) 149 (Ont. C.A.), at
    para. 42:

The difficulty with these comments is twofold.
    First, they appear to suggest that the Crown proved lack of motive to fabricate
    when the evidence was not capable of supporting such a finding. Second, by
    asking highly  emotive rhetorical questions concerning why the complainant
    would create various negative consequences for herself, the Crown created a
    risk that the jury would jump to a conclusion that the complainant must be
    telling the truth if there was no demonstrated motive to lie.

[32]

The court went on at para. 53 to outline the minimum corrective
    instruction that should be given in such circumstances:

At a minimum, the corrective instructions should
    have addressed the following matters:

·

Because a persons motives can sometimes be hidden, there is a
    difference between absence of apparent motive and proven absence of motive;

·

Although the defence had raised some possible motives for the
    complainant to fabricate her evidence, depending on their view of the evidence,
    it was open to the jury to find an absence of any apparent motive on the part
    of the complainant to fabricate;

·

Although absence of apparent motive to fabricate is a proper
    factor to consider in assessing the credibility of the complainant, it is but
    one of many factors to be considered; and

·

Whatever their view of the evidence relating to the complainants
    motive to fabricate, it was essential that the jury bear in mind that the
    accused has no obligation to prove a motive to fabricate and that the onus
    remains on the Crown throughout to prove guilt beyond a reasonable doubt.

[33]

The trial judge did not have the benefit of this courts judgment in
R.
    v. L.L.
and no such instruction was given.

[34]

As we indicated in our earlier reasons, we are of the view that the
    cumulative impact of these various errors is such that the appellant cannot be
    said to have received a fair trial. His convictions must be set aside and a new
    trial ordered.

THE SECOND APPEAL

[35]

As we said in our earlier reasons, and as the
    Crown fairly acknowledged, the trial judge in the appellants second trial
    erred in law in holding that the jurys verdict in his first trial put beyond
    his challenge in his second trial the evidence of K.B. and J.B. that the
    appellant had sexually assaulted them. That holding was legally wrong because
    in criminal law the principle of issue estoppel cannot be permitted to be used
    to free the Crown from proving every element of its case beyond a reasonable
    doubt. In
R. v. Mahalingan
, [2008] 3 S.C.R. 316, McLachlin C.J. put it
    this way at para. 57:

Mutuality, at its most basic level, simply means
    that the parties in the two proceedings must be the same: see
CUPE
; H.
    Stewart, Issue Estoppel and Similar Facts (2008), 53 Crim. L.Q. 382, at p.
    383.  It has sometimes been understood, however, in the broader sense of
    requiring that the principle of issue estoppel apply to both parties in
    identical fashion.  In this sense, mutuality has never been part of Canadian
    criminal law, which recognizes that the presumption of innocence and the
    requirement that the Crown must prove every element of its case beyond a
    reasonable doubt trump issue estoppel.  Where the Crown seeks to estop an
    accused from contesting this innocence based on decisions against the accused
    in prior criminal proceedings, the claim for estoppel will fail.  To permit the
    Crown to rely on issue estoppel in these circumstances would offend the
    presumption of innocence and the requirement that the Crown in a criminal
    proceeding bears the burden of proving its case beyond a reasonable doubt.

[36]

The trial judge relied on the similar fact evidence of K.B. and J.B. to
    convict and made clear that without that evidence she would not have done so.
    This error therefore requires that the appellants conviction be set aside and
    a new trial ordered.

[37]

In summary, for these reasons, both appeals are allowed, the convictions
    set aside and new trials are ordered.

RELEASED: JAN 27 2011 (J.I.L.)

S.T.
    Goudge J.A.

I
    agree. J.I. Laskin J.A.

I
    agree. G.J. Epstein J.A.


CITATION:
R. v. Maieron, 2011 ONCA 78

DATE:  20110127

DOCKET: C52419

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Louigino Maieron

Respondent

Lisa Csele, for appellant

Louigino Maieron, appearing in person

Heard:  January 26, 2011

On appeal from the order made by Justice Norman Douglas of the
          Ontario Court of Justice dated May 20, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the Crowns submission that the appeal judge wrongly refused
    to order a new trial and stayed the proceedings on the basis that the appeal
    judge believed the allegations to be trivial and not worthy of prosecution.  It
    is not for judges to second guess the decision to prosecute a particular
    allegation.

[2]

An appellate court may, in exceptional cases, having determined that the
    order made at trial should be set aside, decline to order a new trial and
    direct a stay.  The appellate court can do so where, in the circumstances, a
    new trial would not serve the interests of justice.  In the circumstances of
    this case, the focus of that inquiry should be on the impact of a new trial on
    the respondent at this point in the proceedings.

[3]

The respondent has been before the court on four occasions at personal expense
    and inconvenience.  The allegation against him is minor both in its nature and
    in respect of the particulars of this allegation.  The Crown has made its legal
    point through this endorsement which makes it clear that judges cannot
    interfere with the Crowns exercise of its discretion to initiate prosecutions,
    except in those few cases that come within the abuse of process doctrine.  A
    new trial at this stage would not serve any useful purpose and would cause further
    inconvenience and expense to the respondent.  He has done nothing to contribute
    to the prolonged litigation of this minor allegation, but is in a sense a
    victim of self-initiated judicial errors.

[4]

In oral argument, there was some suggestion that the respondent
    continues the conduct that gave rise to the charge.  If that is so, the prosecutorial
    authorities can lay a new charge and proceed.  Nothing in these reasons should
    be read as interfering with that discretion.  If the Crown chooses to do so, hopefully
    the merits of the allegation can be addressed without subjecting the respondent
    to appearances at three different court levels.

[5]

Nothing in this endorsement should be construed as any criticism of the
    Crowns conduct.  The problem is the product of judicial error.

[6]

The appeal is dismissed.


CITATION: R. v. May, 2011 ONCA
      74

DATE:  20110127

DOCKET: C52198-C52199

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jesse Brendan May

Respondent

and

Jonathan
          Whalen

Respondent

Susan Magotiaux, for the appellant

John Lefurgey, for the respondent, May

Mark Halfyard, for the respondent, Whalen

Heard and released orally:  January 24, 2011

On appeal from the sentences imposed by Justice D. Taliano of
          the Superior Court of Justice on May 10, 2010.

ENDORSEMENT

[1]

This is a Crown application for leave to appeal the sentences imposed on
    the respondents, May and Whalen.  Both pled guilty to robbery.  The robbery
    involved a home invasion.  Mr. May received a sentence of two years less a day
    to be followed by three years probation.  Mr. Whalen received a sentence of 21
    months to be followed by three years probation.  Both served very brief periods
    of incarceration prior to sentencing and both were on strict bail terms for
    approximately a year and a half.

[2]

This was a planned robbery.  Three individuals, including May, entered
    the home armed with a variety of weapons.  They threatened to kill the
    occupants.  At one point during the robbery, a gun, apparently belonging to one
    of the victims, discharged and killed one of the robbers.  The details
    surrounding that discharge are unknown.  It would appear that May was upstairs
    at the time the shooting occurred in the basement.  Mr. Whalen did not enter
    the home.  He drove the getaway vehicle, but was well aware of the plan to rob
    the home.

[3]

Mr. May was 19 years old at the time of the offence.  He has a terrible
    background and has had very little by way of guidance or parental control.  He
    has accumulated a significant youth record, including two convictions for
    robbery.  The details of those offences were not before the court.

[4]

Mr. May was placed on strict bail conditions.  Fortunately, the persons
    responsible for him while he was under release took a real interest in Mr. May.
    He has turned his life around during the one and a half years he has been on
    bail.  Everyone agrees he has made very significant strides to becoming a law
    abiding and responsible citizen.

[5]

Mr. Whalen was 21 years of age at the time of the offence.  He too has a
    record, although it does not involve any crimes of violence.  He has a
    conviction for possession of a restricted weapon.  As indicated above, Mr.
    Whalen was the driver.  He also made substantial strides towards his
    rehabilitation while on bail awaiting trial.

[6]

This was obviously a very serious offence.  The trial judge was well
    aware of the seriousness of the offence.  His reasons show that he was aware of
    the applicable principles of sentencing and the range of sentence for home
    invasions set by this court.  The trial judge was also aware that a sentence
    range is not fixed in stone, but is ultimately provided for the guidance of
    trial judge who must exercise their sentencing discretion on a case-by-case
    basis.  Sometimes the proper exercise of that discretion takes the sentence out
    of the range.

[7]

The Crown agrees that deference was owed to the sentence imposed by the
    trial judge.  Clearly, he had a difficult task in this case.  The trial judge
    ultimately saw substantial potential for rehabilitation for both of these young
    men.  He saw that there was a real opportunity for them to become productive
    law abiding citizens.  The material before him provided a basis for that
    finding.  Both respondents have also continued their progress while in custody
    as indicated in the material that has been placed before us.  They do seem to
    have turned their lives around.

[8]

The trial judge had to shape a sentence that maximized the potential to
    achieve rehabilitation, which as indicated was a very real prospect in this
    case.  However, at the same time, he had to impose a sufficient penalty to
    adequately reflect the needs of general deterrence and denunciation.  Balancing
    these competing, if not somewhat antagonistic, principles, was not an easy
    task.  I think it is fair to say that other trial judges might have come down
    with a different sentence.  However, deference means yielding to the sentence
    imposed by the trial judge where the balancing engaged in by the trial judge
    does not reflect error in principle or result in a manifestly unreasonable
    sentence.  In our view, the trial judges balancing in this case does not
    suffer from either of those deficiencies.  We would not interfere.

[9]

In closing, we add one point.  The reasons of the trial judge are
    thoughtful and detailed but could be read as devaluing the impact of this very
    serious crime on the victims.  There is some suggestion that at least one of
    the victims was involved in the drug trade.  The trial judge seems to have
    thought that the absence of a victim impact statement entitled him to infer
    that the victims had not suffered any unusual harm.  This was a terrible
    experience for anyone to go through and to the extent that the trial judge
    minimized the seriousness of the impact on the victims because of their
    backgrounds, he was wrong in doing so.  However, his observations concerning
    the victims did not ultimately affect the balancing engaged in by the trial
    judge and we would not interfere with the sentence on that basis.

[10]

Leave to appeal the sentences is granted.  The appeals are dismissed.

Doherty J.A.

J.I. Laskin J.A.

E.E.
    Gillese 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. 486.5(1), (2),
    (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5  (1)
Unless an order is made under section 486.4, on
    application of the prosecutor, a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the judge or justice is satisfied that the order is necessary for
    the proper administration of justice.

(2)

On application of a justice system participant who is
    involved in proceedings in respect of an offence referred to in subsection
    486.2(5) or of the prosecutor in those proceedings, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is necessary for
    the proper administration of justice.

(3)

An order made under this section does not apply in respect
    of the disclosure of information in the course of the administration of justice
    if it is not the purpose of the disclosure to make the information known in the
    community.

(4)

An applicant for an order shall

(
a
) apply in writing to the presiding judge or justice or,
      if the judge or justice has not been determined, to a judge of a superior court
      of criminal jurisdiction in the judicial district where the proceedings will
      take place; and

(
b
)
    provide notice of the application to the prosecutor, the accused and any other
    person affected by the order that the judge or justice specifies.

(5)

An applicant for an order shall set out the grounds on
    which the applicant relies to establish that the order is necessary for the
    proper administration of justice.

(6)

The judge or justice may hold a hearing to determine
    whether an order should be made, and the hearing may be in private.

(7)

In determining whether to make an order, the judge or
    justice shall consider

(
a
) the right to a fair and public
      hearing;

(
b
) whether there is a real and substantial risk that the
      victim, witness or justice system participant would suffer significant harm if
      their identity were disclosed;

(
c
) whether the victim, witness or justice system
      participant needs the order for their security or to protect them from
      intimidation or retaliation;

(
d
) societys interest in encouraging the reporting of
      offences and the participation of victims, witnesses and justice system
      participants in the criminal justice process;

(
e
) whether effective alternatives are available to protect
      the identity of the victim, witness or justice system participant;

(
f
) the salutary and deleterious
      effects of the proposed order;

(
g
) the impact of the proposed
      order on the freedom of expression of those affected by it; and

(
h
) any other factor that the
      judge or justice considers relevant.

(8)

An order may be subject to any conditions that the
    judge or justice thinks fit.

(9)

Unless the judge or justice refuses to make an order,
    no person shall publish in any document or broadcast or transmit in any way

(
a
) the contents of an
      application;

(
b
) any evidence taken, information given or submissions
      made at a hearing under subsection (6); or

(
c
) any other information that could identify the
      person to whom the application relates as a victim, witness or justice system
      participant in the proceedings.  2005, c. 32, s. 15.

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. 205, c.
    32, s. 15.

CITATION: R. v. McCann, 2011
      ONCA 49

DATE: 20110119

DOCKET: C52225

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan McCann

Appellant

Ian Carter and Meaghan Thomas, for the appellant

Lisa Henderson, for the respondent

Heard and released orally: January 7, 2011

On appeal from the sentence imposed by Justice Célynne S.
          Dorval of the Superior Court of Justice dated May 21, 2010.

ENDORSEMENT

[1]

The appellant stands convicted of a number of serious sexual offences
    against young persons. The trial judge imposed a lifetime prohibition under s.
    161(1)(a) of the
Criminal Code
.

[2]

The appellant preyed upon and exploited a number of young women causing
    serious emotional harm to many of them.  We agree with the Alberta Court of
    Appeal that the offences need not be committed in the prescribed circumstances
    of s. 161(1)(a) for an order to be imposed.

[3]

In our view, it was entirely appropriate for the trial judge to impose
    this condition and for the term she did.  This is not a first offence for these
    sorts of offences and the psychological reports that we have seen are not
    particularly positive.  The appellant has demonstrated that he does not
    willingly obey court orders.  The goal of the legislation is the protection of
    young persons from predators like the appellant.  In our view, the order was
    well justified in all of the circumstances and is necessary for the protection
    of young persons.

[4]

The restriction on his freedom is a minor one and must yield where the
    protection of children is at stake.  At the present time, he remains a serious
    risk that justifies for now, a lifetime order.  Subsection (3) of s. 161 gives
    him the right to apply to vary the terms of the order in changed circumstances
    including the duration of the order and if he genuinely is rehabilitated in
    future, he may apply to the court to vary the terms of this order.

[5]

We would dismiss the appeal.

M.
    J. Moldaver J.A.

K.
    Feldman J.A.

J.
    MacFarland J.A.


CITATION:
R. v. Moulton, 2011 ONCA 85

DATE: 20110131

DOCKET: C52468

COURT OF APPEAL FOR ONTARIO

Rosenberg, Armstrong and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robin Moulton

Appellant

John L. Hill, for the appellant

Philippe Alma, for the respondent

Heard: January 20, 2011

On appeal from the judgment of
          Justice F. Graham of the Superior Court of Justice dated April 27, 2010.

APPEAL BOOK ENDORSEMENT

[1]

We need not decide whether the refusal to transfer the offender from a
    medium security institution to a minimum security institution was a sufficient
    deprivation of a liberty interest to give rise to a right to invoke
habeas
    corpus
.  The matter was not argued before us.

[2]

We agree with the application judge that the appellant was treated
    fairly and there were ample reasons for the medium security designation.  It
    was not unfair to treat membership in a criminal organization as a factor in
    deciding how the appellants security designation should be assessed.

[3]

The appeal is dismissed.


CITATION:
R. v.
Nisbet
, 2011 ONCA 26

DATE: 20110113

DOCKET: C52060

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin
Nisbet

Appellant/Applicant

Frances
Breman
, for the appellant

Allison
Dellandrea
, for the
          respondent

Heard and released orally:
January 4, 2011

On appeal from the sentence imposed by Justice H. A.
Rady
of the Superior Court of Justice dated April 23,
          2010.

ENDORSEMENT

[1]

Sadly, possession of child pornography facilitated
    through the internet is on the rise.  It
    is an abhorrent crime that victimizes the most vulnerable members of our
    society and hence the need for sentences to reflect denunciation and
    deterrence.

[2]

The officers examined the appellants computer over
    time and found a number of files which showed children aged 4 to 14 being
    depicted in all types of sexual activity with other children and adult males.
    Many of those files bore titles suggestive of child pornography.

[3]

The appellant argues that the sentence imposed was too
    high.  We disagree.  In our view, a sentence of six months was not
    inappropriate in all the circumstances of this case. A message must go out that
    this sort of conduct will not be tolerated.  There is no error in principle and hence no basis for this court to
    interfere.

[4]

The appeal is dismissed.

M.
    J. Moldaver J.A.

K.
    Feldman J.A.

J.
    MacFarland J.A.


WARNING

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

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

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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION: R. v. P.G., 2011 ONCA 50

DATE: 20110119

DOCKET: C47789

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

Michael S. Mandelcorn and R. Michael Rode, for the appellant

Matthew Asma, for the respondent

Heard and released orally: January 13, 2011

On appeal from the conviction
          entered on April 12, 2007 and the sentence imposed on May 23, 2007 by Justice
          Rommel G. Masse of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction for aggravated assault, assault
    with a weapon and obstruction of justice.  Although his notice of appeal also
    seeks leave to appeal sentence, leave was not pursued and is dismissed as
    abandoned.

[2]

Inasmuch as the complainant was a hostile witness at trial, counsel for
    the Crown sought to have two out of court statements the complainant made
    admitted into evidence on the basis of the principled exception to the hearsay
    rule.  The first was the complainants out of court statement made at the
    hospital to Nurse Cowan admitted into evidence as a principled exception to the
    hearsay rule.  The second was the complainants video-taped statement made to
    the police.  The necessity of admitting the statements was not contested.
    There, as here, the issue is the threshold reliability of the statements which
    the trial judge admitted into evidence.

[3]

The appellant submits that the threshold of reliability was not met for
    a compendium of reasons.  One is that the notes of Nurse Cowan contained the
    wrong date.  Another is that Nurse Cowan was an agent of the police or not a
    disinterested party.  Nurse Cowan did not attend solely to treat the
    complainant but obtained the complainants consent to take pictures of her
    injuries and to report the matter to the police.  There is no merit to either
    of these arguments and we dismiss them.

[4]

The appellant further submits that the trial judge erred in holding that
    the statement to Nurse Cowan was reliable because both she and complainant were
    available for cross-examination at trial.  The complainant testified at trial
    that she could not remember making the statements and because she was drugged
    up on painkillers.  Since the complainant could not remember what she said,
    the appellant submits that any cross-examination of her with regard to these
    statements could not be effective.

[5]

In our opinion, the trial judge did not err in noting that both Nurse
    Cowan and the complainant were available to be cross-examined at trial.  Nurse
    Cowans testimony at trial was relevant to proving that the complainant made
    the statements to her despite the complainants claim that she could not
    remember doing so.  The complainants claim that she could not recall what she
    said at the hospital was doubtful given that she gave a very similar statement
    to the police some months later.  Furthermore, there is no general rule that a
    hearsay statement cannot be admitted in the absence of an opportunity to
    meaningfully cross-examine a declarant.  A declarants lack of memory of the
    prior statement is merely one factor to take into account when determining the
    reliability of the statement.  The trial judge found that the complainant made
    the statements while she was still traumatized by the attack and was therefore
    not in a position to be concocting the statement.

[6]

The determination of whether these two hearsay statements were
    sufficiently reliable as to be admissible required the trial judge to perform a
    full assessment of the facts.  His decision is therefore entitled to deference.
     He was clearly cautious about relying on evidence from a complainant who later
    recanted at trial, but found that her statements to Nurse Cowan and the police
    were truthful.

[7]

The appellant has not identified any material misapprehension of the
    evidence or error in principle that would require this court to interfere with
    the trial judges decision. The trial judge gave extensive and persuasive
    reasons as to why the complainants statements to the nurse and to the police
    were reliable.

[8]

Accordingly, the appeal is dismissed.

K.M. Weiler J.A.

E.E. Gillese J.A.

R.A. Blair J.A.


CITATION: R. v. Paper, 2011 ONCA 56

DATE: 20110121

DOCKET: C51944

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leila Paper

Appellant

Leila Paper, in person and Russell Silverstein, duty counsel

James D. M. Clark, for the respondent

Heard and released orally: January 17, 2011

On appeal from the sentence imposed by Justice B. Brown of the
          Ontario Court of Justice, dated March 12, 2011.

ENDORSEMENT

[1]

We are not persuaded that the sentencing judge erred in principle in the
    sentence she imposed. This was a commercial operation with a wide variety of
    controlled substances available for purchase and sale.

[2]

The sentencing judge did consider the appellants guilty plea as
    indicative of remorse in her determination of the sentence she imposed and was
    entitled to balance it against the appellants failure to appreciate the
    potential harm created by the distribution of these substances.

[3]

Leave to appeal is granted, but the appeal is dismissed.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

David
    Watt J.A.


WARNING

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

An order restricting publication in this proceeding under
    ss. 486(1), (2), or (3) of the
Criminal Code
shall continue.
    These sections of the
Criminal Code
provide:

486.    (1)
Any proceedings
    against an accused shall be held in open court, but the presiding judge or
    justice may order the exclusion of all or any members of the public from the
    court room for all or part of the proceedings if the judge or justice is of the
    opinion that such an order is in the interest of public morals, the maintenance
    of order or the proper administration of justice or is necessary to prevent
    injury to international relations or national defence or national security.

(2)
For the purpose of
    subsection (1), the proper administration of justice includes ensuring that.

(a)       the interests of the witnesses under the age of
    eighteen years   are safeguarded in all proceedings; and

(b)       justice system participants who are involved in the
    proceedings are protected.

(3)
If
    an accused is charged with an offence under section 151, 152, 153, 153.1, 155
    or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212,
    271, 272 or 273 and the prosecutor or the accused applies for an order under
    subsection (1), the judge or justice shall, if no such order is made, state,
    reference to the circumstances of the case, the reason for not making an order.
     R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74,
    c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1;
    1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2;
    2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s.
    20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

CITATION: R. v. Pearson, 2011
      ONCA 70

DATE:  20110127

DOCKET: C50884

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Pearson

Applicant (Appellant)

Nicholas A. Xynnis, for the applicant (appellant)

Frank Au, for the respondent

Heard:  January 24, 2011

On appeal from the conviction entered by Justice McWilliam of
          the Superior Court of Justice dated November 1, 2007 and the sentence imposed
          on December 11, 2007.

APPEAL BOOK ENDORSEMENT

[1]

This was a straightforward case.  The trial judge was faced with the
    difficult problem of assessing the competing testimony of the appellant and the
    complainant.  His reasons are brief but, in our view, they demonstrate the
    basis for the conviction.  The trial judge referred to the evidence surrounding
    a will admittedly written by the appellant and to the evidence of one of the
    other siblings as supportive of the complainants evidence.  In essence, the trial
    judge convicted the appellant because he concluded that the other evidence in
    the case was consistent with the complainants evidence and not the appellants
    evidence.  The other evidence led the trial judge to believe the complainant
    and disbelieve the appellant.  Those findings of credibility explain the verdicts.

[2]

There is no merit to the submission that the trial judge misapplied the
    burden of proof or that the trial judge somehow applied different standards in
    assessing the credibility of the complainant and the appellant.

[3]

The appeal is dismissed.


WARNING

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

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

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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION: R. v. Raco, 2011 ONCA 60

DATE: 20110121

DOCKET: C51722

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Antonio Raco

Appellant

Frank Miller, for the appellant

Dena Bonnet, for the respondent

Heard and released orally: January 19, 2011

On appeal from the conviction entered by
          Justice S. Rogin of the Superior Court of Justice on October 21, 2009 and the
          sentence imposed by Justice Rogin on February 8, 2010.

ENDORSEMENT

[1]

While the appellant raised two grounds of appeal, the only issue pursued
    in oral argument was whether the trial judge misused the appellants failure to
    testify contrary to the holding of the Supreme Court of Canada in
R. v.
    Noble
, [1994] 1 S.C.R. 874.

[2]

The trial judge stated that he was entitled to comment on the fact that the
    accused did not testify but always bearing in mind the heavy onus on the Crown
    to prove each count beyond a reasonable doubt.  He also recognized that he
    could not use the accuseds failure to testify to transform what might be a
    weak Crown case into a strong one.

[3]

If the trial judge used the fact that the appellant did not testify as evidence
    to bolster the Crowns case, this would have been an error.  However, we are
    not persuaded that he did so.  Rather, we think he simply used the fact the
    appellant did not testify as meaning that there was no other explanation for
    what was otherwise an overwhelming case in respect of all the counts except
    count number 2 where the trial judge found that, while the offence probably
    occurred, he was not satisfied beyond a reasonable doubt.  Nor did he use the
    language of an adverse inference that was condemned in
Noble
.

[4]

That said, we emphasize that it is very dangerous for a trial judge to
    refer to the failure to testify except in the precise way referred to by
    Sopinka J. in
Noble
at paragraphs 77 and 82.

[5]

Accordingly, the appeal from conviction is dismissed.  The appeal from
    sentence is dismissed as abandoned.

M.
    Rosenberg J.A.

S.T.
    Goudge J.A.

Robert
    P. Armstrong J.A.


CITATION: R. v. Rowe, 2011 ONCA
      2

DATE: 20110105

DOCKET: C49955

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joacquin Rowe

Appellant

Joseph Wilkinson, for the appellant

Andreea Baiasu, for the respondent

Heard: December 22, 2010

On appeal from the conviction entered on March 19, 2008 and
          the sentence imposed on June 20, 2008 by Justice Omatsu of the Ontario Court
          of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction for aggravated assault. His ground
    of appeal is that the trial judges reasons for conviction indicate that she
    rejected his claim of self defence under s. 37 of the
Criminal Code
solely and exclusively because of the extent of the injuries suffered by the
    complainant. Despite Mr. Wilkinsons able argument, we do not agree. We do not
    read her reasons that way.

[2]

The incident giving rise to the charge took place in a holding cell at
    Old City Hall in Toronto. The appellant and complainant were being held there
    with several other inmates.

[3]

The incident was captured on the security video, which the trial judge
    watched a number of times during the trial and which we have also viewed. It
    showed the complainant asleep on a bench in the cell. The appellant put a long
    white sock over his right hand, approached the complainant, leaned over and
    made some contact with the complainant. As a result, the complainant woke up,
    stood up and took several steps towards the appellant with his arms outstretched.
    The appellant backed off a little, then punched the complainant once in the
    face. The complainant fell to the floor, motionless, with bloody running down
    his face. The appellant moved away, took off his sock and removed his
    sweatshirt.

[4]

The complainants injuries were serious. His nose, forehead and eye were
    damaged and he needs reconstructive surgery.

[5]

In this court, the appellant concedes that in view of the trial judges
    finding that he provoked the assault by the victimm he must rely on s. 37. The
    question the trial judge addressed was whether the appellant used more force
    than necessary to prevent the assault constituted by the complainants
    advancing towards him with his arms outstretched.

[6]

In conducting this proportionality analysis, the trial judge took into
    account the way the punch was struck as shown in the video. She also took into
    account the serious injuries the complainant suffered, which she found were
    caused by the punch. These considerations allowed her to determine the force
    used by the appellant and to conclude that it was excessive in the
    circumstances. Her ultimate focus was on the force used by the appellant and
    not exclusively on the injuries suffered by the complainant. She did not commit
    the error argued by the appellant.

[7]

The appeal must be dismissed.

M. Rosenberg J.A.

S. T. Goudge J.A.

R. A. Blair J.A.


CITATION: R. v. Scorcia, 2011 ONCA 17

DATE: 20110107

DOCKET: C50717

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and MacFarland JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Robert Scorcia

Appellant

Crystal Tomusiak, for the appellant

Emile Carrington, for the respondent

Heard and released orally: January 4, 2011

On appeal from conviction entered by Justice Gisele Miller of
          the Superior Court of Justice, sitting with a jury, dated February 20, 2009.

ENDORSEMENT

[1]

The appellant was convicted by a court composed of judge and jury of
    robbery, assault with a weapon and use of an imitation firearm while committing
    robbery.

[2]

Based on the position advanced by the defence at trial, the learned
    trial judge approached the issue of self-defence solely from the perspective
    that the appellant was involved in a pre-emptive strike to a threat he
    perceived as always hanging over his head. On the evidence led at trial, the
    trial judge concluded that there was no air of reality to the defence of
    self-defence on that basis and she instructed the jury accordingly. The essence
    of her instructions in this regard is found at p. 73 of the charge as follows:

Defence counsel in his closing address, suggested
    to you that although Robert Scorcia did everything that is required for you to
    find him guilty of assault with a weapon, that Mr. Scorcia was somehow
    justified in doing so, as a pre-emptive strike to a threat he perceived as
    always hanging over his head. I must tell you, and you must take the law from
    me, that there is no basis in our law for a defence or justification or of
    self-defence in the circumstances of this case, and you should put any
    suggestion to that effect from the defence out of your mind.

Joseph Lamanna presented no immediate threat to
    Robert Scorcia. Apart from whether Robert Scorcias perception of the threat
    Joseph Lamanna posed was grounded in reality, this is a case in which Robert
    Scorcia took steps to seek out Joseph Lamanna. He created the confrontation and
    Mr. Lamanna did nothing that would justify Robert Scorcia pulling out a
    gun, real or fake, and pointing it at Mr. Lamanna.

[3]

Leaving the issue of a pre-emptive strike aside, on the appellants
    evidence as to what occurred just before he pulled out his replica firearm and
    pointed it at the complainant, we think there was a basis for leaving the
    defence of self-defence with the jury.

[4]

On the appellants evidence, he pulled out the replica firearm, which he
    said was unloaded, only after the complainant said to him Oh, so you want to
    fight. According to the appellant, the complainant then started just making a
    motion towards me, walking towards me because he wanted to fight me and I
    pulled out the BB gun. In cross-examination, the appellant stated that he had
    brought the replica gun with him because he was fearful of the complainant: I
    was deathly scared of fighting him. This man has countless experience fighting.
     I have never been to a fight in my life. I was very scared.

[5]

There was clearly a basis in the record to substantiate the appellants
    fear. According to the evidence of the appellant and other witnesses, the
    complainant had a reputation for aggression and violence. He had engaged in
    bullying behaviour towards the appellant for a significant period of time and had
    threatened him with death or serious injury on numerous occasions. That is the
    backdrop against which the appellants evidence must be assessed, at least
    insofar as deciding whether there was an air of reality to the defence of
    self-defence.

[6]

In our view, taking the evidence of the appellant at its highest, as we
    must, we think that on this record, he was entitled to have the defence of
    self-defence left with the jury under s. 37 of the
Criminal Code
. That
    being so, the conviction for assault with a weapon cannot stand.

[7]

With respect to the robbery charge, the appellant was charged on the
    basis that he assaulted the complainant with intent to steal. If the
    appellants use of force was justified under s. 37, that conviction cannot
    stand. The same holds true for the charge of using an imitation firearm while
    committing a robbery.

[8]

Accordingly, for these reasons, the appeal is allowed, the convictions
    are set aside and a new trial is ordered.

Signed:           M. J.
    Moldaver J.A.

K.
    Feldman J.A.

J.
    MacFarland J.A.