COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Wills, 2014 ONCA 178

DATE: 20140307

DOCKET: C54968

Doherty,
Pepall
and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Wills

Appellant

Carlos Rippell, for the appellant

David Lepofsky, for the respondent

Heard:  November 26, 2013

On appeal from the convictions returned by a jury
    presided over by Justice Mark L. Edwards of the Superior Court of Justice on October
    19, 2011, in Newmarket, Ontario, and on appeal from the sentences imposed on January
    16, 2012.

Doherty J.A.:

I

[1]

The appellant was found guilty by a jury on two counts of robbery with
    a firearm (counts 1 and 2), one count of unlawful confinement (count 3), one
    count of disguise with intent to commit an indictable offence (count 4), and
    two counts of possession of a weapon for the purpose of committing an
    indictable offence (count 5  a baton; count 6  a firearm).  The trial judge
    stayed count 6, relying on
R. v. Kienapple
, [1975] 1 S.C.R. 729.  The
    appellant received sentences totalling 10 years which after credit for
    pre-trial custody resulted in a net sentence of seven years and four months.
    He appeals his conviction and sentence.

[2]

The charges arose out of a home invasion.  Two masked men forced their
    way into the Sacchetti residence.  One viciously assaulted Mr. Sacchetti when
    he attempted to prevent their entry into his home.  The other robber forced
    Mrs. Sacchetti to the floor in the kitchen, put a gun to her head, and demanded
    money.  The two men fled the scene with a small amount of cash.

[3]

The appellant was tried alone.  Identity was the central issue at
    trial.  Not surprisingly, neither victim could identify either assailant.  The
    Crowns case rested on DNA evidence linking the appellant to two bandanas used
    by one or both of the robbers, and evidence that a police baton similar to the
    weapon used to beat Mr. Sacchetti was seized from the appellants bedroom
    closet about two months after the robbery.

[4]

The appellant did not testify.

[5]

Counsel advanced several grounds on the conviction appeal.  I would
    dismiss that appeal.  I would, however, allow the sentence appeal by making the
    two-year consecutive sentence imposed on count five for possession of a weapon
    (a baton) for the purpose of committing an offence, concurrent to the sentences
    imposed on the robbery charges.  This variation results in a net sentence of five
    years and four months.

II

the evidence

(a)

The Robbery

[6]

Mr. Sacchetti, aged 78, and his wife, aged 75, live together in
    Woodbridge, Ontario.  At about 7:30 p.m. on a February evening, Mr. Sacchetti
    heard loud banging on the front door followed by shouting.  He opened the door
    and two men rushed forward into the house.  Both men were masked and wearing
    hoods.

[7]

One of the robbers (the first robber) pushed Mr. Sacchetti backward into
    a closet door, shattering the glass on the door.  A struggle ensued.  The first
    robber pulled Mr. Sacchetti outside into the snow and beat him severely with a
    stick-like weapon.  Mr. Sacchetti pulled a white mask from the first robbers
    face during the struggle.

[8]

Inside the house, the second robber confronted Mrs. Sacchetti in the
    kitchen.  He ordered her to the floor and when she had difficulty getting down because
    of her scoliosis, the second robber put his foot on her back and pushed her to
    the floor.

[9]

The second robber left Mrs. Sacchetti lying on the floor for a moment but
    then returned with what appeared to be a handgun.  Pointing the handgun at Mrs.
    Sacchettis neck, and then at her face, the robber said, Mrs., you see this?
    Where is the money?  Mrs. Sacchetti directed the robber to a drawer in the
    buffet containing cash.

[10]

The
    second robber left Mrs. Sacchetti and joined the first robber, who was
    continuing the assault on Mr. Sacchetti at the front of the home.  The second
    robber pushed snow into Mr. Sacchettis mouth in an effort to keep him quiet.
    The first robber indicated they should leave and both men fled off through a
    nearby ravine.  The home invasion lasted five to ten minutes.

[11]

The
    Sacchettis were terrorized by the incident.  They thought they were going to
    die.  Mr. Sacchetti was taken to the hospital and treated for a broken nose,
    cuts to his head, and injuries to his torso.

(b)

The Victims Description of the Robbers

[12]

Mr.
    Sacchetti could not identify either robber.  He described the first robber as:

·

A black man, but not an African black, just maybe one step
    down.

·

A little taller than Mr. Sacchetti, perhaps five feet, seven
    inches or five feet, eight inches.

·

A normal build, not a big guy, with a slim face.

·

[I]n the 20s, 21, 22.  You know, something like that.

[13]

Mrs.
    Sacchetti never saw the face of her attacker.  She did not know if he was white
    or black.  She described him as tall, maybe six feet, and as neither fat nor
    skinny.  Her assailant said something to her in Italian.

(c)

The DNA Evidence

[14]

The
    police found the white bandana Mr. Sacchetti had pulled from the face of the
    first robber.  There was blood on that bandana.  The police found a second blue
    bandana in the ravine along the escape route followed by the robbers.  An
    impression of a footprint found very close to that bandana matched an
    impression of a footprint taken from the Sacchettis house.  It was a fair
    inference that both bandanas were worn during the robbery by either or both of
    the robbers.

[15]

A
    Crown expert examined both bandanas for DNA.  Three sections were cut from the
    white bandana.  On one section, the expert detected the DNA of at least one individual.
    There was insufficient DNA to allow a comparison.  The DNA of at least three unidentified
    people was found on a second cut-out section.  Once again, that DNA was not
    suitable for comparison.  The DNA of at least two individuals was detected on
    the third cut-out section from the white bandana.  One of the DNA samples matched
    the appellants DNA profile.  The expert opined that the chance that two
    different persons could share that DNA was something in the order of one in 48
    billion.

[16]

The
    Crown expert acknowledged that there was DNA on the white bandana from at least
    three persons, stating:

[W]e say at least three because we dont know how many
    individuals are in that mixture.  There could be four, there could be five, we
    dont know, but theres at least three.

[17]

The
    expert cut one section from the blue bandana found in the ravine.  Testing of
    that section revealed DNA from at least two individuals.  The DNA from one of
    the individuals matched the DNA of the appellant.  The chance of a random match
    with another individual was one in 9.2 billion.  The expert could not say how
    many individuals DNA might be on the cut-out section from the blue bandana.

[18]

The
    Crown expert testified that he could not say when the DNA was placed on the
    bandanas and he could not estimate how long the DNA may have been on the
    bandanas.  Nor could the expert say how the DNA had come to be placed on the
    bandanas.  DNA could have been placed on the bandanas by direct or indirect
    contact.  The expert also agreed that the person or persons wearing the bandanas
    during the robbery may not have left his or her DNA on the bandana.  Finally,
    the expert could not comment on the presence or absence of DNA on the parts of
    the bandanas that were not tested.

(d)

The Weapon

[19]

Mr.
    Sacchetti described the weapon used by the first robber in some detail.  He described
    it as having what appeared to be a wooden handle that was about eight inches
    long and a metal end that was about 12 inches long.  Mr. Sacchetti testified
    that the handle was black or brown and the metal end of the weapon was silver.
    He described the metal end of the weapon as flexible, comparing it to the microphone
    attached to the witness box and to a piece of BX wire.  He also described the
    metal end as like a whip.

[20]

Mr.
    Sacchetti likened the weapon used against him to the wood piece that
    policemen carry on the side of their legs.  He testified:

I never been involved with the police that they gonna use at
    me, but I see the police walk with this thing on their thing, but I dont know
    how far it goes into the pants.  But that was the  but this thing, I dont
    know if policeman Canadian have the same metal piece on the top.  I didnt see
    this.  All I know, I see when they walk and I see this thing on their legs and
    its the same, about the same colour. I figure its wood, but I dont know at
    the end the way it is.

[21]

The
    police seized a metal baton from a gym bag found in the appellants bedroom
    closet about two months after the robbery.  The officer who seized the baton described
    it as an asp, it is just  for the jury, basically an asp is what the majority
    of police officers carry.  It is a metal baton, it is a metal stick.

[22]

The
    officer indicated that uniformed police officers wear the baton on their belt.
    He explained that these batons extend when swung.  Once extended, the baton is
    rigid.

[23]

The
    police officer who found the baton in the appellants closet agreed that police
    batons can be purchased over the Internet and in certain self-defence
    stores.  The officer was shown a series of pictures of batons taken from the Internet.
    The batons varied somewhat in shape and size and were different colours.  That
    same officer and others testified that in their experience, police batons are
    seldom found in the possession of persons who are the subject of police searches.

[24]

Mr.
    Sacchetti was shown the baton seized from the appellants bedroom closet and
    asked to compare it to the weapon used against him in the robbery.  He
    described the handles as about the same length although the handle on the
    baton was thinner.  Mr. Sacchetti further testified that the non-handle portion
    or end of the weapon used against him was a little longer than the end of
    the baton.  Mr. Sacchetti also indicated that the weapon used in the robbery
    had a wooden handle, whereas the baton had a metal or rubberized handle.  Mr.
    Sacchetti went on to indicate, however, that he did not actually touch the
    handle of the weapon during the attack.

[25]

Mr.
    Sacchetti pointed out three other differences between the baton seized from the
    appellants bedroom closet and the weapon used in the robbery.

·

The end of the baton seized from the appellants closet was black,
    although specks of the black paint had come off the tip of the end, exposing
    the silver coloured metal underneath.  The end of the weapon used in the attack
    was silver.

·

The end of the baton shown to Mr. Sacchetti was firm.  That end
    of the weapon used against him moved and was like a whip.

·

The tip of the end of the baton seized from the appellants
    bedroom closet had a mushroom-like shape.  The weapon used in the robbery had a
    more pointed tip.

III

were the verdicts unreasonable?

A:  The Test

[26]

Counsel
    for the appellant submits that the evidence could not reasonably support a
    finding that the appellant was one of the perpetrators.  Counsel maintains that,
    without that finding, the appellant could not be convicted on any of the
    charges.

[27]

Jury
    verdicts are regarded as the gold standard in criminal law.  However, as with
    any human institution, juries can make mistakes.  Where the mistake is a
    wrongful conviction, the cost to the accused can be measured in years of his or
    her life.  Appellate review, and, in particular, review under s. 686(1)(a)(i),
    serves to protect against jury error in those cases where the trial is free of
    legal error and is entirely fair, but the evidence cannot justify the
    conviction of the accused: see
R. v. W.H.
,
2013 SCC 22, at para. 39.  Section 686(1)(a)(i) reads:

686(i) On the hearing of an appeal against a conviction  the
    court of appeal

(a)  may allow the appeal where it is
    of the opinion that

(i)  the verdict should be set aside
    on the ground that it is unreasonable or cannot be supported by the evidence.

[28]

Section
    686(1)(a)(i) requires the appellate court to test the jurys verdict against a
    reasonableness standard.  That standard asks whether the verdict is one that a
    properly instructed jury, acting judicially, could reasonably have rendered.

[29]

In
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40, Arbour
    J., for a unanimous court, described the appellate courts function in
    assessing the reasonableness of a jury verdict:

When an appellate court arrives at that conclusion [that the
    verdict is unreasonable] it does not act as a thirteenth juror, nor is it usurping
    the function of the jury.  In concluding that no properly instructed jury
    acting judicially could have convicted, the reviewing court inevitably is
    concluding that these particular jurors who convicted must not have been acting
    judicially.  In that context, acting judicially means not only acting
    dispassionately, applying the law and adjudicating on the basis of the record
    and nothing else.  It means, in addition, arriving at a conclusion that does
    not conflict with the bulk of judicial experience.  This, in my view, is the
    assessment that must be made by the reviewing court.
It requires not
    merely asking whether twelve properly instructed jurors, acting judicially, could
    reasonably have come to the same result, but doing so through the lens of
    judicial experience which serves as an additional protection against an
    unwarranted conviction.
[Emphasis added.]

[30]

The
    lens of judicial experience refers to the appellate courts examination of
    the cogency of the evidence as informed by the courts awareness of the risk of
    wrongful convictions associated with certain kinds of cases and certain kinds
    of evidence.  The court, as an institutional participant in the criminal
    justice system, has an appreciation of those risks that a jury in a specific
    case cannot have.

[31]

Section
    686(1)(a)(i) requires the appellate court to independently weigh the totality of
    the evidence.  The court weighs the evidence, however, not with a view to
    making its own assessment as to the appropriate verdict, but for the more
    limited purpose of determining whether the verdict is beyond the reasonableness
    limit.  In making that assessment, the court must give due weight to the
    advantage a jury gains from actually seeing the witnesses and hearing the
    narrative unfold: see
W.H.
,
supra
, at para. 27
.

[32]

In
    this case, the lens of judicial experience must focus both on the nature of
    the crime and the nature of the evidence.  This was a terrible crime committed
    against innocent and particularly vulnerable members of the community.
    Law-abiding members of the community could easily see themselves as the victims
    of this kind of random violent crime.  A jurys understandable concern that
    criminal activity of this kind does not go unpunished could subconsciously influence
    the jurys assessment of whether the circumstanceswhich no doubt pointed the
    finger of suspicion at the appellantwere sufficiently compelling to justify a
    finding of guilt beyond a reasonable doubt.

[33]

Not
    only is this the kind of case where jury objectivity is tested, but also the
    evidence relied on by the Crown was purely circumstantial.  The reasonableness
    of the verdicts must be assessed with regard both to the inferences reasonably
    available from the totality of the evidence and to the Crowns ultimate burden
    to demonstrate that guilt is the only reasonable inference to be drawn from the
    totality of that evidence:  see
R. v.
Yebes
, [1987] 2 S.C.R. 168,
at pp. 186-90; and
R. v. Barrett
, 2004 NSCA 38, at paras. 15-20.  There is a risk that a
    jury could use the DNA evidence, which provided incontrovertible evidence
    connecting the appellant to the bandanas, to draw the further, but much weaker,
    inference connecting the appellant to the robbery.

B:  Application of the Test to this Case

[34]

The
    DNA evidence was obviously important evidence.  The jury could readily infer
    that one or both of the robbers had worn the bandanas during the robbery.  The
    DNA evidence also established, almost to an absolute certainty, that the
    appellant, among others, had direct or indirect contact with both bandanas at
    some point in time before the police found the bandanas at the robbery scene.

[35]

The
    finding of the appellants DNA on both, as opposed to just one, of the bandanas
    was also suggestive of some connection between the appellant and the robbery.
    The DNA evidence went some way toward identifying the appellant as one of the
    perpetrators.

[36]

However,
    the DNA evidence alone could not support the inference that the appellant was
    one of the perpetrators or that either bandana belonged to the appellant.  The
    expert evidence called by the Crown precluded those inferences based
    exclusively on the DNA evidence.  Like the fingerprint evidence in
R. v.
    Mars
(2006), 205 C.C.C. (3d) 376, at paras. 20-21 (Ont. C.A.) and
R.
    v. D.D.T.
,
2009 ONCA 918,
    at para. 26, the DNA evidence alone could not say when that DNA was placed on
    the bandanas and therefore could not identify the appellant as the perpetrator
    of the robbery.  There had to be other evidence which, combined with the DNA
    evidence, would permit a finding that the appellant was the perpetrator,
e.g.
see
R. v. Samuels
,
2009
    ONCA 719; and
R. v. Wong
,
2011 ONCA 815.

[37]

The
    Crown argues that the evidence that a police baton similar to the weapon used
    in the robbery was found in the appellants bedroom closet less than two months
    after the robbery provides the necessary added evidence, which, when combined
    with the DNA evidence, could establish that the appellant was one of the
    robbers.

[38]

Counsel
    for the appellant takes a very different view of Mr. Sacchettis evidence.  He
    contends that Mr. Sacchettis description of the differences between the weapon
    used against him and the baton seized from the appellants closet compels the
    conclusion that the seized baton was not the weapon used in the robbery.  On
    this view of Mr. Sacchettis evidence, the police baton seized from the
    appellants bedroom closet added nothing to the Crowns case.

[39]

The
    appellants position assumes that a reasonable jury would accept Mr.
    Sacchettis detailed description of the weapon used against him in the attack.
    Certainly, a reasonable jury could accept the entirety of his evidence.  If the
    jury accepted the detailed description as accurate, it would follow that the
    police baton seized from the appellants apartment was not the weapon used in
    the robbery.

[40]

However,
    there is another reasonable view of Mr. Sacchettis evidence.  A reasonable jury
    could conclude that Mr. Sacchettis general description of the weapon used
    against him as like the wood piece that police carry on the side of their
    legs was accurate and reliable but that his description of the details of the weapon
    was not reliable because of the circumstances in which he observed the weapon.
    For example, a reasonable jury might well take Mr. Sacchettis reference to the
    weapon as being like a whip as explained by the manner in which his assailant
    swung the weapon in a downward motion at Mr. Sacchetti who was lying on the
    ground.  Similarly, Mr. Sacchettis description of the end of the weapon used
    to strike him as silver could be explained by the exposure of the metal surface
    of the weapon where the paint had been scratched off.  The lighting conditions where
    Mr. Sacchetti was attacked could well have affected his perception of the colour
    of the object being used to bludgeon him.

[41]

Allowing
    for the clearly advantageous position of the jury who saw and heard Mr.
    Sacchetti testify and who had an opportunity to examine the baton seized from
    the appellants closet, I think a reasonable jury could conclude that Mr.
    Sacchetti was struck with a police baton that was similar in appearance to the
    police baton seized from the appellants bedroom closet.

[42]

The
    reasonableness of the finding that the appellant was one of the perpetrators
    ultimately depends on the probative value of evidence that the appellant had in
    his bedroom closet some two months after the robbery a police baton that was
    similar to the weapon used in the robbery.  In considering the probative value
    of the evidence, one must bear in mind that a police baton is not the kind of
    object that is commonly found in a household or in the possession of persons
    other than police officers.  The somewhat uncommon nature of the weapon adds
    some probative force to the evidence from the Crowns perspective.

[43]

I
    do not think that Mr. Sacchettis very general description of one of the
    robbers, at para. 12, adds any force to the Crowns case.  It is relevant to the
    reasonableness inquiry only in the sense that it is not inconsistent with the
    appellants appearance and does not, therefore, as in
Mars
, at para.
    26, diminish the potential force of the circumstantial evidence.  Mrs.
    Sacchettis description has no evidentiary value.

[44]

This
    is a close call.  I am, however, satisfied that the DNA evidence linking the
    appellant to the two bandanas used in the robbery, combined with evidence
    permitting the inference that some two months after the robbery the appellant had
    a police baton like the police baton used in the robbery, is sufficient to render
    the jurys finding that the Crown had proved that the appellant was one of the
    perpetrators a reasonable one.  In holding that the verdicts survive the
    reasonableness analysis I have taken into account the appellants failure to
    testify: see
R. v. Corbett
,
[1975] 2 S.C.R. 275, at pp. 280-81.

IV

the convictions on the armed robbery charges

[45]

Counts
    one and two in the indictment alleged that the appellant did use a firearm to
    rob the victims.  At trial, counsel for the appellant moved for a directed
    verdict at the end of the Crowns case.  He argued that, as the alleged firearm
    had not been fired during the robbery and as the police had not recovered the
    alleged firearm, the Crown could not prove beyond a reasonable doubt that the
    alleged firearm was, in fact, a firearm, as defined in s. 2 of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
    Counsel submitted that the evidence was at least equally consistent with the
    use of an imitation handgun during the robbery.  An imitation handgun is not a
    firearm, as defined in s. 2.

[46]

The
    trial judge rejected this argument and charged the jury that, to convict on the
    robbery with a firearm counts, the jury must be satisfied beyond a reasonable
    doubt that a firearm was used in the robbery.  He gave the jury the definitions
    of both weapon and firearm.  An imitation handgun does fall within the
    definition of weapon, although, as indicated above, it is not a firearm.
    The jury convicted on both counts.

[47]

Counsel
    renews this submission on appeal, arguing that there was no evidence that the
    weapon used by the second robber was a firearm, as defined in the
Criminal
    Code
.

[48]

I
    agree with Crown counsels contention that the appellants submission and the
    trial judges instructions mischaracterize the offences alleged in counts one
    and two of the indictment.  To convict on those counts, the Crown was required to
    prove that the appellant committed robbery, as defined in s. 343 of the
Criminal
    Code
.  Use of a firearm is not an essential element of robbery, as defined
    in s. 343.  The Crown was not required to convince the jury beyond a reasonable
    doubt that the appellant used a firearm.  If the jury was satisfied that the
    Crown had proved robbery, as defined in s. 343, the jury was obliged to convict
    the appellant on counts one and two.  It was for the trial judge on sentencing
    to determine whether the Crown had proved beyond a reasonable doubt that the
    appellant used a firearm in the commission of the robbery, thereby triggering
    the mandatory minimum penalty under s. 344(1):  see
R. v. Moore
, 2012 ONCA
    770; and
R. v. A.D.
, 2003 BCCA
    106,
(2003), 173 C.C.C. (3d) 177.  Any deficiency in the Crowns
    proof that a firearm was used in the robbery is appropriately considered on the
    sentence appeal.

[49]

I
    will, however, address the appellants submission that, absent proof that a
    firearm was discharged or the recovery of a firearm, the Crown could not prove
    that the weapon used in the robbery was a firearm, as defined in s. 2.  As I
    understand this argument, counsel relies on Parliaments creation of the
    discrete offence of using an imitation firearm in the commission of an
    indictable offence in s. 85(2) and asserts that the Crown cannot prove that a
    firearm, as opposed to an imitation firearm, was used, unless the alleged
    firearm is discharged during the offence or recovered after the offence and
    tested to demonstrate that it meets the definition of firearm in s. 2.  There
    is some support for this proposition: see
R. v. Lemoine
,
[1998] O.J. No. 601 (C.A.); and
R.
    v. Taing
, 1998 ABCA 108
.

[50]

I
    do not conclude from Parliaments decision to criminalize the use of imitation
    firearms, an obviously dangerous activity, that the normal rules of proof do
    not apply to an allegation that an accused used a firearm, as defined in s. 2
    of the
Criminal Code
.  The Crown may prove that the alleged firearm
    fell within the definition by inference from the totality of the circumstances,
    even if the alleged firearm was not fired or recovered.  This court has upheld
    trial decisions that have drawn that inference even though the firearm was not
    discharged or recovered: see
R. v. Richards
,
[2001] O.J. No. 2286 (C.A.);
R. v. Carlson
, [2002] O.J. No. 1884 (C.A.); and
R.
    v. Charbonneau
, [2004] O.J. No. 1503
    (C.A.)
.

[51]

I
    do, however, accept that, where the Crown alleges the use of a firearm and the
    firearm was not recovered or discharged, it is incumbent on the trial judge to
    clearly explain to the jury the essential elements of the definition of firearm
    in s. 2 and to make it clear to the jury that the use of something resembling a
    firearm does not constitute proof of the use of a firearm.  Assuming the jury
    is properly instructed, and assuming that the inference that the alleged
    firearm was, in fact, a firearm is reasonably available, it is for the jury to
    decide whether that inference should be drawn.

V

THE
    ADMISSIBILITY OF THE BATON SEIZED FROM THE APPELLANTS APARTMENT

[52]

Two
    arguments are advanced in support of the appellants position that the baton
    was inadmissible.  The first presumes, based on Mr. Sacchettis evidence, that
    the baton was not the weapon used in the robbery.  For reasons outlined above,
    I am satisfied that a jury could reasonably conclude that the police baton
    seized from the appellants bedroom closet was similar to the police baton used
    in the robbery.  That similarity, particularly in light of the relatively
    uncommon nature of the weapon involved, was sufficient to render the baton admissible
    as a piece of circumstantial evidence going ultimately to the question of
    identity, a material fact in issue.

[53]

The
    appellant also argues that the baton was inadmissible because there was no
    evidence that he was in possession of the baton.  The baton was found in the
    closet of the appellants bedroom.  He lived there with his girlfriend and a
    young child.  The baton was in a gym bag containing what appeared to be adult
    male clothing.  There was no evidence that any other adult male lived in the
    apartment, although there was some evidence that at least one other male
    visited the apartment.  These circumstances provided an ample basis upon which
    a jury could conclude that the appellant was in possession of the baton when it
    was found by the police.  I think the jury could also infer, particularly in
    the absence of any evidence to the contrary, that the appellant was in
    possession of the baton some two months earlier.

VI

the instruction on circumstantial evidence

[54]

The appellant submits that the trial judge erred in law in failing to
    instruct the jury that, as the case was purely circumstantial, it could convict
    only if guilt was the only rational inference:  see
R. v. Griffin
,
    2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.  The trial judge could have
    instructed the jury in the words urged by the appellant.  However, as long as
    the trial judge adequately explained to the jury how to use circumstantial
    evidence to draw inferences and explained the burden on the Crown to prove
    guilt beyond a reasonable doubt based on those inferences, no particular
    semantic formulation was necessary:
R. v. Mayuran
, 2012 SCC 31, [2012]
    2 S.C.R. 162, at para. 38.  The trial judges instructions adequately conveyed
    the required message.

VII

the sentence appeal

[55]

The
    trial judge imposed sentences of five years and four months concurrent on the
    two robbery counts.  He did so on the basis that the jury had found that the
    appellant was liable as a party to the use of a firearm during the commission
    of the robbery, thereby triggering the four-year minimum sentence in s.
    344(1)(a.1).

[56]

As
    explained above, at paras. 45 to 48, it was not for the jury to determine
    whether a firearm was used in the robbery.  The trial judge should have made
    that determination on sentence.

[57]

The
    Crown argues that the appellant was not prejudiced by this misallocation of the
    responsibility for determining whether a firearm was used in the robbery.
    Counsel observes that the trial judge was not asked to revisit the issue on
    sentencing and that no objection was taken to the trial judges acceptance of
    the jurys finding that a firearm was used for the purposes of sentencing.

[58]

I
    have difficulty with the Crowns argument on two fronts.  First, I cannot agree
    that, where the law requires a trial judge to make a particular determination,
    there is no prejudice when the jury makes that determination and the trial
    judge merely accepts the jurys finding.  There is no way of knowing what
    finding the trial judge would have made in respect of the claim that a firearm
    was used in the robbery.  Second, any reliance on the jurys verdicts is
    tainted by the trial judges misdirection as to the meaning of the word firearm.
    During his instructions on the robbery charges, the trial judge confused the
    definitions of weapon and firearm.  No clarification was provided to the
    jury despite an objection by counsel for the appellant.

[59]

This
    court is left with two options.  The court could make its own finding as to
    whether the Crown had proved beyond a reasonable doubt that a firearm was used
    in the robbery, or it could assume in the appellants favour that the Crown had
    failed to prove that the firearm was used in the robbery and, on that
    assumption, determine the appropriate sentence.  I will follow the latter
    course.

[60]

All
    home invasion robberies are very serious crimes and will usually merit significant
    penitentiary sentences:
R. v. Wright
, [2006] 83 O.R. (3d) 427 (C.A.).
    This home invasion was a particularly egregious example of the crime.  The
    gratuitous violence and threats made against the elderly victims are shocking
    and despicable.  Even if the weapon pointed into the face of Ms. Sacchetti as
    she lay helpless on the ground believing she was about to die was not a
    firearm, it nonetheless terrorized Ms. Sacchetti.  I am sure the vision of that
    gun and the terror it generated will never leave her mind even if one cannot
    say for certain that it was a real gun:  see
R. v. Steele
, 2007 SCC
    36, [2007] 3 S.C.R. 3, at paras. 20-23.

[61]

Taking
    into account the pre-trial custody, the trial judge imposed an effective
    sentence of eight years on the robbery.  Regardless of whether the weapon used
    to terrorize Ms. Sacchetti was a real firearm, the totality of the circumstances
    justifies a sentence of eight years.  I would not interfere with the sentences
    imposed on the robbery charges.

[62]

There
    is, however, merit to the appellants argument that the trial judge should not
    have imposed a consecutive two-year sentence on the charge of possession of a
    weapon (the baton) for the purposes of committing the offence of robbery.  This
    count was part and parcel of the robbery charges.  In my view, the vicious and
    senseless beating administered with the baton is one of the aggravating factors
    taken into account in fixing eight years as an appropriate sentence on the
    robbery charges.  To impose a further consecutive sentence is to double count
    that conduct in calculating the appropriate sentence.  The sentence on the
    charge of possession of a weapon (the baton) for the purpose of committing the
    offence of robbery should have been made concurrent to the sentences on the
    robbery charges.

VIII

conclusion

[63]

I
    would dismiss the conviction appeal.  I would allow the sentence appeal and
    make the two-year sentence on the charge of possession of the baton for the
    purpose of committing the offence of robbery concurrent to the sentences on the
    robbery charges.  This variation results in an effective sentence of eight
    years, which taking into account pre-trial custody, results in a sentence of
    five years and four months.

Doherty J.A.

I agree M.L. Benotto
    J.A.

Pepall J.A. (Dissenting):

[64]

With
    respect, I disagree with my colleague that the conviction appeal should be
    dismissed.  In my view, the evidence could not reasonably support a finding
    that the appellant was one of the perpetrators of the crimes for which he was
    convicted and, as such, the verdict was unreasonable.

The Test

[65]

In
    making this determination, I appreciate that, to use my colleagues
    terminology, jury verdicts are regarded as the gold standard in criminal law.
    An appellate court is not to act as a thirteenth juror:
R. v. Biniaris,
2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40.  That said, in my opinion, the
    verdict in this case is beyond the limits of reasonableness.  It is not one
    that a properly instructed jury, acting judicially, could reasonably have
    rendered.

Application of the Test

[66]

Neither
    of the victims identified the appellant as one of the robbers.  The case
    against the appellant was based solely on circumstantial evidence.  As such, in
    order to convict, the jury had to be satisfied beyond a reasonable doubt that
    the only rational inference that could be drawn from the circumstantial
    evidence was that the appellant was guilty: see
R. v. Griffin
, 2009
    SCC 28, [2009] 2 S.C.R. 42, at para. 33.

The Evidence

[67]

As
    my colleague indicates at paragraph 3 of his reasons, the Crowns case rested
    on DNA evidence connecting the appellant to two bandanas used in the robbery
    and evidence of a baton seized from the appellants apartment.

(a)

DNA Evidence

[68]

As
    noted in paragraph 34 of my colleagues reasons, the DNA evidence does
    establish that the appellant, among others, had direct or indirect contact with
    both bandanas at some point in time before the police found them.  However, the
    timing of when the appellants DNA was placed on the bandanas cannot be
    determined.  As the Crowns DNA expert testified: Theres no way to determine
    how long any of those DNA profiles have been on that bandanna.  Furthermore,
    both bandanas contained the DNA of multiple individuals and had DNA

from
    more individuals than there were perpetrators to the offences.

[69]

As
    my colleague states at paragraph 36 of his reasons, the DNA evidence alone
    could not support the inference that the appellant was one of the perpetrators
    or that either bandana belonged to him.

(b)

The Baton

[70]

Turning to the evidence of the baton, about two months after the crime,
    a baton was found in a closet in the appellants apartment (the apartment
    baton).  At trial, it was marked as an exhibit and described as a black
    baton.  It consisted of three sections: the handle, the middle, and the end
    section.  The detectives described the apartment baton as being steel with a
    rubber handle and that, while the end section of a police baton usually
    extended out, the apartment baton was jammed.

[71]

Four
    points are of note.  First, the victim, Mr. Sacchetti, did not identify the
    apartment baton as the baton used during the crime. No one else did either.

[72]

Second,
    in his testimony, the victim identified how it was dissimilar to the baton used
    in the crime. The victim repeatedly testified that the bottom of the baton used
    in the crime was wood and the metal top swivelled.  Neither of these features
    is found on the apartment baton.

[73]

Third,
    there is no evidence connecting the apartment baton to the crime.

[74]

Fourth,
    while it may be true, as my colleague notes, that batons are not common
    possessions, it is also true that they are not complete rarities.  They can be
    bought on-line and in self-defence stores.  They come in various colours,
    composite materials and designs.  Exhibits consisting of photographs of various
    batons included a silver baton with a black handle, a grey baton with a black
    handle, a solid silver baton with grooves and a silver and white baton with a
    black handle.  While the seizure of batons was not common in the experience of
    the police officers who testified, two officers  Detective Abreu and Detective
    Walsh  acknowledged having seized a baton from a residence at least once or
    twice over the course of their careers.

(c)

Mr. Sacchettis Evidence

[75]

The
    victim, Mr. Sacchetti, provided various descriptions of the baton used against
    him.

[76]

He
    first discussed the baton in his examination-in-chief (at p. 161 of the
    transcript):

A.      Hes on the top of me and not really on the top of me
    like a real position, and he was whacking me and beating me with this piece of
    metal.  Well, the bottom I guess was wood

Q.      Im going to ask you to slow down a little, okay?

A.      and the top was a piece of metal that swivels.  Its
    not straight.  Like when you hit, it moves around.

[77]

His
    second description of the baton was also given in his examination-in-chief (at
    p. 166-167 of the transcript):

A.

He was, yeah, whacking me with this piece of  the bottom was wood and
    it was about eight inch, about like this, and then the top was something that
    you move it around, you know?  Like, for example, like this, you know.  You
    whack em around and it moves.

[78]

His
    third description was also given in his examination-in-chief, at pp. 169 of the
    transcript.  It was at this juncture that he referred to a police baton.

[79]

With
    respect, the comparison Mr. Sacchetti drew to a police baton was not a general
    description of the weapon used against him.  He was addressing the bottom.
    The comparison he drew to a police baton began as a way to describe the bottom
    of the baton.  He then proceeded to contrast the two weapons and commented on
    their differences just as he had commented on the differences between the
    weapon used against him and the apartment baton. The relevant exchange is set
    out below:

Q.     Now, I want to ask you, Im going to ask you some
    questions about the item that you were being hit with that this person had, okay?
    So I want you to describe  youve told us a little bit about it already.
    Youve used the word bottom and top, okay?

A.      Yeah.

Q.      Can you tell us in terms of what you mean by
the
    bottom
?  [Emphasis added.]

A.      Like, you know like the policeman has that wood piece
    that they use to carry on the side of their legs, the Canadian policeman?  But
    then this thing, he had a piece of metal on the top of that

Q.      Okay. Just youre going to have to slow down.  Just a
    second. He had a piece of metal on the top of what?

A.      On the top of the wood handle.

Q.      Okay.

A.      And this piece of metal is like whip that swivels, you
    know, moves around when you  like, you know, its not like a piece of wood
    that it doesnt move.  He had me and he moves this piece of metal.  Its
    something like that, swivels.

Q.      Okay.  So youre just waving your hand and your arm and
    your finger back and forth?

A.      Like, you know the whip, like when they had the horse?
    The whip, except this thing was like  for example, like BX wire.  You know,
    like wire that the electrician used to use, is a metal that moves, you twist it
    the way you want it.

Q.      No, I have no idea.  I have no idea what that is.

A.      Well, this thing, you could twist it the way you want,
    this piece that they had on the top of this wood.  Its like a piece of metal
    that its not stiff.  You know, its not one piece, it moves around.

[80]

Later
    in his examination-in-chief, he was asked whether he was able to tell how many
    parts there were to the baton.  He responded as follows (at p. 171 of the
    transcript):

A.

Well, the only part there were of this item was the two, was the handle,
    the wood handle at the bottom and this flexible tube on the top.

[81]

At
    p. 172 of the transcript of his examination-in-chief, Crown counsel asked:

Q.      Mr. Sacchetti, one of the things you said when I asked
    you to describe this item, you said it was like the policeman has, that wood

A.      Well

Q.      Let me finish.  You said it was like what the policeman
    has, that wood piece they carry at the side of their legs.  I want you to tell
    us, what was the same or what was different about this item than what the
    police carry?  What are you thinking about in terms of what the police carry?

A.      Now, what I know, I never been involved with the police
    that they gonna use at me, but I see the police walk with this thing on their
    thing, but I dont know how far it goes into the pants.  But that was the  but
    this thing, I dont know if policeman Canadian have the same metal piece on the
    top.  I didnt see this.  All I know, I see when they walk and I see this thing
    on their legs and its the same, about the same colour.  I figure its wood,
    but I dont know at the end the way it is.

Q.      Youve been referring to the handle or the end as wood.

A.      Yes.

Q.      Why are you calling it wood?  What is it about the
    object that makes you think its wood?

A.      Well, as far as I understood, as far as my knowledge, I
    think its made out of wood.  I dont know.

Q.      Did you ever actually touch this item yourself?

A.      No.

Q.      Other than it being hit on your body, did you touch it
    at all?  The handle or

A.      No.

[82]

It
    is unclear from this last exchange whether Mr. Sacchetti is talking about the
    baton that Canadian policemen carry or the baton used by the perpetrator or
    both.

[83]

Later,
    Mr. Sacchetti was questioned on the apartment baton.  Crown counsel showed him
    the apartment baton and the following exchange ensued:

Q.      I want you to look at that object and you can see if it
    moves at all, but I want to ask you, how does that object Ive given you
    compare to what you saw that night when you were being whacked?

A.      Well, the handle was about the same length, the bottom
    was about the same length, but top, its long, about this long.

Q.      The item that was used?

A.      Yeah, the thing was on the top of his hand, but was
    flexible, you know.  See, this thing, its straight.  It doesnt move, doesnt
    flex.

.

A.  Well, that thing was as little longer than this thing, but
    the difference is that this thing is solid, it doesnt move, and that thing,
    you could move it.

Q.      And how does the colour compare to the item that was
    used?

A.      Well, this is black.  That was a silver colour.

Q.      And what part was the silver colour that you saw?

A.      This is the  the top part was the silver colour.

Q.      So just for the record, youre showing the part that is
     the top part that is not the handle, the thinner part.

A.      The metal, the thin part, yeah.

Q.      Okay.

A.      This about the size, the five/eight or a finger, but.

Q.      Okay.  Now I want to ask you about the size around.
    How does the size around of the item you are holding which is Exhibit A, how
    does the handle size around compare to what you saw that night?

A.      The bottom was thicker than this.

Q.      And how about the top portion?

A.      The top was about.

Q.      How does  let me finish my question.  How does it compare
    around to what you recall of that night?

A.      About the same as this and go into a point.

Q.      What do you mean it went into a point?

A.      It doesnt have, like, this had, like this one has.
    For example, the finger goes from here to a point.

Q.      Okay.  So lets make sure were talking about the same
    thing.  Youve said that the item youre holding which is Exhibit A has a point
    at the end.

A.      This one has a little head like a mushroom, that one
    wasnt.

Q.      And so that night it did not have like the mushroom
    shape?

A.     No.

[84]

The
    lighting in the area of the assault was good as confirmed by both Mr.
    Sacchetti, and by one of the investigating officers who had immediately
    attended at the crime scene.  The former said it was fully bright and the
    latter recalled that the exterior of the house was very well lit.

[85]

With
    respect, based on the evidence, I do not believe that a properly instructed
    jury acting judicially could reasonably render a guilty verdict.  The Crowns
    evidence in this case amounted to inconclusive DNA evidence coupled with a
    baton that was identified as being dissimilar to that found in the closet of
    the appellants apartment and as dissimilar from a police baton, and that bore
    no identifiable connection to the crime scene.  In my view, the guilty verdict
    in this case was unreasonable.  The evidence could not reasonably permit the
    conclusion that the appellant was the perpetrator of the crimes for which he
    was convicted.

[86]

I
    would allow the appeal, set aside the conviction and enter acquittals on all
    charges.

RELEASED:  DD  MAR 07 2014

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2014 ONCA 212

DATE: 20140321

DOCKET: C57456

Sharpe, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Tyler Wilson

Respondent

and

Attorney General of
    Ontario

Intervener

Lisa Shields, for the appellant

Grace Choi, for the intervener

Richard Litkowski,
amicus
    curiae

Heard: January 30, 2014

On appeal from the judgment of Justice R.J. LeDressay of
    the Ontario Court of Justice, dated June 11, 2013, allowing the appeal from the
    conviction entered on June 15, 2012 by Justice of the Peace D. Lee.

Sharpe J.A.:

[1]

The issue on this appeal is whether a drivers failure to wear a seat
    belt contrary to s. the
Highway Traffic Act,
R.S.O. 1990, c. H.8 (HTA),
    s. 106(2) is an offence of absolute liability or strict liability. The
    respondent, Mr. Wilson, was convicted by a Justice of the Peace on the basis
    that the offence was one of absolute liability. An appeal to the Ontario Court
    of Justice was allowed and a new trial ordered on the ground that the offence
    was one of strict liability affording the driver a due diligence defence. The
    Corporation of the City of Burlington appeals to this court with leave. As Mr. Wilson
    decided to take no further part in the proceedings,
amicus curiae
was
    appointed to advance the respondents position on appeal. Burlington, supported
    by the Attorney General of Ontario as intervener, asks that the appeal be
    allowed on the ground that the offence is one of absolute liability, but, in
    the circumstances, asks that a stay of proceedings be entered.

[2]

For the following reasons, I conclude that s. 106(2) creates a strict
    liability offence and that the appeal should be dismissed.

Facts

[3]

On September 24, 2011, a police officer saw Mr. Wilson stop his vehicle
    at a stop sign. The officer noticed that Mr. Wilsons seatbelt was hanging by his
    shoulder and issued a Provincial Offences Notice for failing to wear a seatbelt
    contrary to the HTA, s. 106(2).

[4]

Mr. Wilson testified that he had placed a coffee in a cup holder in the
    backseat of his car. While driving, he noticed the coffee was spilling on his
    laptop. When the officer observed him, he had just pulled up to a stop sign and
    removed his seatbelt so he could straighten the coffee cup.

[5]

The Justice of the Peace interrupted Mr. Wilsons testimony and told him
    that his evidence made him guilty of the offence as it was one of absolute
    liability. Mr. Wilson went on to say that there was no other traffic around and
    at the time, it was his intention to re-engage the seatbelt as soon as he fixed
    the coffee cup. The Justice of the Peace found Mr. Wilson guilty.

Appeal to the Ontario Court of Justice

[6]

On appeal to the Ontario Court of Justice, Mr. Wilson argued that

a)

the Justice of the
    Peace created a reasonable apprehension of bias by interrupting him to tell him
    he was guilty before all of the evidence was complete; and

b)

the offence was one of
    strict rather than absolute liability.

[7]

The appeal judge gave comprehensive reasons rejecting the reasonable
    apprehension of bias argument but concluded, on the basis of the test set out
    in
R. v. Sault Ste. Marie
, [1978] 2 S.C.R. 1299, as applied by this
    court in
R. v. Kanda
, 2008 ONCA 22, 88 O.R. (3d) 732, that s. 106(2)
    is an offence of strict liability. As the prosecution did not seek a new trial,
    the appeal judge allowed the appeal and entered a stay of proceedings.

Legislation

[8]

Ontarios seat belt legislation is found in the HTA, s. 106:

Seat belts

Seat belt assembly must not be removed or
    altered

106 (1) No person shall drive on a highway a motor
    vehicle in which a seat belt assembly required under the
Motor Vehicle
    Safety Act
(Canada) at the time that the vehicle was manufactured or
    imported into Canada has been removed, rendered partly or wholly inoperative,
    modified so as to reduce its effectiveness or is not operating properly through
    lack of maintenance.

Use of seat belt assembly by driver

(2)
Every person who drives
    on a highway a motor vehicle in which a seat belt assembly is provided for the
    driver shall wear the complete seat belt assembly as required by subsection
    (5).

Use of seat belt assembly by passenger

(3)
Every person who is at
    least 16 years old and is a passenger in a motor vehicle on a highway shall,

(a) occupy a seating position for which a seat belt
    assembly has been provided; and

(b) wear the complete seat belt assembly as required
    by subsection (5).

Driver to ensure young passenger uses seat
    belt assembly

(4)
No person shall drive on
    a highway a motor vehicle in which there is a passenger who is under 16 years
    old unless,

(a) that passenger,

(i) occupies a seating position for which a seat belt
    assembly has been provided, and

(ii) is wearing the complete seat belt assembly as
    required by subsection (5); or

(b) that passenger is required by the regulations to
    be secured by a child seating system or child restraint system, and is so
    secured.

Exception

(6)
Subsections (2) and (3)
    do not apply to a person,

(a) who is driving a motor vehicle in reverse;

(b) who holds a certificate signed by a legally
    qualified medical practitioner certifying that the person is,

(i) for the period stated in the certificate, unable
    for medical reasons to wear a seat belt assembly, or

(ii) because of the persons size, build or other
    physical characteristic, unable to wear a seat belt assembly; or

(c) who is actually engaged in work which requires
    him or her to alight from and re-enter the motor vehicle at frequent intervals
    and the motor vehicle does not travel at a speed exceeding 40 kilometres per
    hour.

Same

(7)
Clause (4) (a) does not
    apply in respect of a passenger if the passenger holds a certificate signed by
    a legally qualified medical practitioner certifying that the passenger is,

(a) for the period stated in the certificate, unable
    for medical reasons to wear a seat belt assembly; or

(b) because of the persons size, build or other
    physical characteristic, unable to wear a seat belt assembly.

Regulations

(8)
The Lieutenant Governor
    in Council may make regulations,

(e) exempting from any of the provisions of this
    section or the regulations made under this section,

(i) any class of motor vehicle,

(ii) any class of driver or passenger, or

(iii) drivers carrying any prescribed class of
    passenger,

and prescribing conditions for any such exemption;

Offence

(8.3)
Every person who
    contravenes or fails to comply with this section or a regulation made under
    this section is guilty of an offence and on conviction is liable to a fine of
    not less than $200 and not more than $1,000.

Issue

[9]

The sole issue raised on this appeal is whether s. 106(2) of the HTA
    creates an absolute or strict liability offence.

Analysis

R. v. Sault Ste. Marie and the presumption of strict liability

[10]

In
R. v. Sault Ste. Marie
, Dickson J., writing for a unanimous court,
    identified what he described as a half-way house between the extremes of true
    criminal offences that require proof of a guilty state of mind (intention,
    knowledge or recklessness), and public welfare offences imposing absolute
    liability, where conviction will follow upon proof that the accused did the
    prohibited act with no consideration of the accuseds state of mind or degree
    of fault. The new category was that of strict liability: the prosecution makes
    out its case by proving the doing of the prohibited act, but it is left open to
    the accused to avoid conviction by proving on a balance of probabilities that
    he or she took reasonable care to avoid the prohibited act.

[11]

Dickson
    J. offered a compelling rationale for the half-way house of strict liability.
    The link between absolute liability and increased compliance is unproven and
    tenuous. Strict liability maintains efficiency and effectiveness in the enforcement
    of minor regulatory legislation by relieving the prosecution of any obligation
    to prove fault but, by affording the accused the opportunity to demonstrate
    that he or she took reasonable care, also avoids the potential injustice
    inherent in the imposition of no-fault liability.

[12]

Sault
    Ste. Marie
, at p. 1326,
holds that the principle that punishment should in general not be inflicted on
    those without fault applies to make public welfare offences
prima facie
offences of strict liability. An offence would be classified as imposing
    absolute liability only where the Legislature had made it clear that guilt
    would follow proof merely of the prohibited act. The primary considerations to
    be used to determine whether the offence is one of absolute liability are: the
    overall regulatory pattern adopted by the Legislature, the subject matter of
    the legislation, the importance of the penalty, and the precision of the
    language used

Classification of HTA Offences

[13]

As
    this court observed in
Kanda
, the HTA creates offences falling within
    all three categories. Some HTA offences use language importing full
mens
    rea
(e.g. s. 104(2.2) parent or guardian knowingly permitting a person
    under 16 to ride a bicycle without a helmet), some impose liability on a
    reasonableness standard (e.g. s. 75(4) unreasonable noise), and some create
    offences of absolute liability by explicitly excluding the due diligence
    defence (e.g. s. 84.1(5) wheel detached from a commercial motor vehicle).
    However, for most HTA offences, the legislature does not clearly specify the
    level of fault and it falls to the courts to discern the appropriate level of
    fault based on the analysis laid down in
Sault Ste. Marie
.

[14]

The
    only case cited to us dealing with the specific issue whether s. 106(2) is an offence
    of strict or absolute liability is
R. v. Stewart
, [2007] O.J. No. 3000
    (Ont.C.J.), a brief oral judgment stating that the offence is one of absolute
    liability. However, as I read the decision, the argument advanced by the
    accused and rejected by the court was that the prosecution had to prove not
    only that the driver was not wearing a seat belt, but also that the vehicle was
    provided with a seat belt assembly and that it could be properly fashioned.
    That submission related to the elements of the offence, not whether absolute or
    strict liability was imposed. Although the trial judge said that s. 106(2) was
    an absolute liability offence, there was no reference to
Sault Ste. Marie
or to the presumption of strict liability.

[15]

The
    closest appellate authority is
Kanda
where this court considered
    whether the offence created by what is now s. 106(4), driving a vehicle while a
    passenger under sixteen is not wearing a seat belt, was one of strict or
    absolute liability. The court applied the four factors identified in
Sault
    Ste. Marie
in the following manner.

[16]

Writing
    for the court, MacPherson J.A looked first at the overall regulatory pattern.
    As, I have already explained, the HTA creates offences falling within all three
    categories. As the legislature had not used explicit language in s. 106,
    MacPherson J.A. concluded that overall regulatory pattern was neutral.

[17]

MacPherson
    J.A. found that the subject matter of the legislation pointed to strict
    liability. While the provision at issue was designed to ensure the safety of
    vulnerable young passengers, it was held in
Sault Ste. Marie,
at p. 1311,
    that [t]here is no evidence that a higher standard of care results from
    absolute liability. A driver who committed the prohibited act will be convicted
    in most cases as establishing the defence of due diligence or reasonable care
    will not be easy:
Kanda,
at para. 31. It follows that classifying the
    offence as one of strict liability strikes an appropriate balance between
    encouraging drivers to be vigilant about the safety of child passengers in
    their vehicles and not punishing those who exercise due diligence with respect
    to childrens seat belts:
Kanda
, at para. 32.

[18]

MacPherson
    J.A. concluded that the penalty, at the time a fine of not less than $60 and
    not more than $500 and two demerit points, was consistent with absolute
    liability. I note that the current penalty, introduced in 2009, is a fine of
    not less than $200 and not more than $1,000.

[19]

The
    precision of language, or lack thereof, was found to point to strict liability.
    By themselves, the words no person shall or every person who do not import
    absolute liability: see
R. v. Chapin
, [1979] 2 S.C.R. 121 at p. 131. However,
    some HTA offences using those words have been held to impose absolute
    liability:
R. v. Kurtzman
(1991), 4 O.R. (3d) 417 (C.A.) (failing to
    stop at a red light) and
London (City) v. Polewsky
(2005), 202 C.C.C.
    (3d) 257 (Ont. C.A.), leave to appeal to the S.C.C. refused, [2006] S.C.C.A.
    No. 37 (speeding). MacPherson J.A., at para. 39, distinguished those cases on
    the basis that the proscribed conduct resulted from the accuseds own actions
    while the child seat belt offence deals with a situation in which another
    person  the child passenger  is potentially involved in creating the violation.
    He held that it was counterintuitive to exclude the defence of due diligence where
    the offence involved failing to meet a standard of care with respect to another
    person.

[20]

Finally,
    MacPherson J.A. added this important point, at para. 40:

[Section 106(4)] of the
HTA
does not expressly exclude the
    defence of due diligence. The language of absolute liability is well-known and
    has been used by the legislature in the
HTA
in
s. 84.1
. If the legislature wanted to
    impose the serious consequences that flow from the creation of an absolute
    liability offence, the means for so doing would have been known and available.

[21]

He
    concluded, at paras. 43-44 that the strong presumption in favour of strict
    liability created by
Sault Ste. Marie
had not been displaced.

Should Kanda be applied?

[22]

The
    appellant urges us to distinguish
Kanda
on the ground that the offence
    created by s. 106(2) involves solely the accuseds own actions and does not
    involve the conduct of another person for whom the accused is responsible. The Attorney
    General, supporting this argument, points out that the seat belt requirement is
    an uncomplicated, one-step action fully within the drivers personal and
    physical control.

[23]

I
    disagree with the submission that we should distinguish
Kanda
and hold
    that s. 106(2) creates an absolute liability offence for the following reasons.

[24]

First,
    the involvement of the child passenger was only one of many factors mentioned
    in
Kanda
. As I read the judgment, the dominant factor was that there
    was nothing in the language used by the legislature to displace the presumption
    mandated by
Sault Ste. Marie
in favour of strict liability.

[25]

Second,
Kanda
s holding that the s. 106(4) offence is one of strict liability
    favours holding the s. 106(2) offence to be the same. Section 106 contains a detailed
    scheme as to seat belts and uses similar language to create a variety of
    offences without specifying the level of fault required. There is no statutory
    language indicating an intention to classify differently offences that prohibit
    similar conduct and appear in the same section of the governing statute.

[26]

Third,
    while the possible involvement of the child in the commission of the s. 106(4)
    offence makes it more obvious that the s. 106(4) offence should be classified
    as strict liability, the more obvious classification of s. 106(4) does not
    preclude the same classification for the closely related and similar offence
    created by s. 106(2). It is easy to imagine situations where a driver has taken
    reasonable steps to ensure that a child passenger is securely seat belted but
    the child manages to unfasten the belt. While it is more difficult, it is not
    impossible to imagine situations where a driver finds him or herself not
    securely seat belted despite having taken reasonable steps to secure the belt.

[27]

Fourth,
    I agree that because the s. 106(2) offence involves a simple act entirely
    within the control of the driver, situations in which a defence of due
    diligence arise are bound to be rare. However, it seems to me quite possible
    that a driver could take reasonable steps to fasten his or her seat belt, only
    to find that the belt did not close properly or had come undone. I fail to see
    why the small chance of such an occurrence should deprive the driver of the
    opportunity to present a due diligence defence. As held in
R. v. Raham
,
    2010 ONCA 206, 99 O.R. (3d) 241, at paras. 44, 49-50, if the offence is defined
    in such a way that it is impossible to do the prohibited act and, at the same
    time, to have acted with due diligence, the precision of the language used by
    the legislature will point to absolute liability. However, as
Raham
also held, the fact that a due diligence defence will not be readily available
    given the nature of the offence is not a reason to exclude it as a matter of
    law. In my view, while the defence of due diligence is not be readily available
    for the offence created by s. 106(2), it is not impossible to establish.
    Accordingly, there is nothing in the way the offence is defined that rebuts the
    strong presumption of strict liability.

Exceptions

[28]

Burlington
    argues that the exceptions found in s. 106(6) point to absolute rather than
    strict liability. That subsection provides that the requirement to wear a seat
    belt does not apply to a person who is driving the vehicle in reverse, to
    persons who cannot wear a seat belt for medical reasons or because of their
    size or other physical characteristics or who have work-related need to alight
    from the vehicle at frequent intervals. There is also a detailed regulation, enacted
    pursuant to s. 106(8)(e) providing for further exemptions.

[29]

The
    appeal judge concluded that the existence of these exemptions supported the
    proposition that s. 106(2) is a strict liability offence, citing the judgment
    of Tarnopolsky J.A. in
R. v. Nickel City Transport (Sudbury) Limited
(1993),
    82 C.C.C. (3d) 541 (Ont. C.A.), at pp. 554-555.

[30]

Burlington
    points out that this court has found some offences that contain exceptions to
    be absolute liability offences: see
Kurtzman
and
Polewsky
.

[31]

I
    am not persuaded that the presence or absence of the statutory exceptions to s.
    106(2) has any particular bearing on the issue we must decide. I agree with how
    Arbour J.A. put it in her concurring reasons in
R. v.

Nickel City
    Transport
, at p. 568:

I attach little significance to the fact that the legislation
    allows for exceptions to be enacted by regulation. Absolute liability means
    liability without proof of fault. It does not mean that the proscribed conduct
    can suffer no legislated exception. It merely means that those not exempted
    have no excuse for failing to comply.

[32]

The
    exceptions exclude the prosecution of certain individuals who have very
    specific needs and reasons not to wear a seat belt. The exceptions neither
    arise from nor relate to the concept of due diligence. The case we have to
    decide deals with the plight of an individual who has no such needs and who
    argues that he exercised due diligence to comply with the law.

Conclusion

[33]

Holding
    s. 106(2) to be an offence of strict liability comports with the wisdom of
Sault
    Ste. Marie
by enabling efficient and effective enforcement of important
    public safety legislation while avoiding the injustice of no-fault liability.
    The prosecution need only prove that the driver was not wearing a seat belt. As
    this court stated in
Kanda,
at para. 31, [s]trict liability is what
    its name implies  a serious commitment to enforcement of the law. But in the
    admittedly rare case where the driver has done his or her best to comply, the
    injustice of conviction without fault is avoided.

[34]

I
    wish to emphasize that because of the way this case came to us, we are not
    asked to decide whether Mr. Wilsons evidence at trial made out a due diligence
    defence. It is common ground that as he was precluded from advancing that
    argument before the Justice of the Peace at trial, if the Justice of the Peace
    was wrong in concluding that the offence was one of absolute liability, a new
    trial would be required. A defence of due diligence to this charge would only
    be made out where, although the driver was found not wearing his or her seat
    belt when driving, the driver had taken all reasonable care to wear the seat
    belt. As Doherty J.A. stated in
Raham
, at para. 48, citing
Kurtzman
at para. 37, a due diligence defence is not made out by acting generally in a
    reasonable way.

Disposition

[35]

For
    these reasons, I would dismiss the appeal.

Robert J. Sharpe
    J.A.

I agree David Watt
    J.A.

I agree M.L. Benotto
    J.A.

Released: March 21, 2014


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yen, 2014 ONCA 210

DATE: 20140320

DOCKET: C57300

Doherty, Laskin and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Te-Wei Yen

Applicant (Appellant)

Peter Lindsay, for the applicant (appellant)

Avene Derwa, for the respondent

Heard and released orally:  March 17, 2014

On appeal from the order of Justice M.E. Vallee of the
    Superior Court of Justice, sitting as a summary conviction appeal judge, dated
    June 7, 2013, overturning the stay of proceedings ordered by Justice R.A.
    Minard, dated August 20, 2012.

ENDORSEMENT

[1]

Leave to appeal under s. 839 should be granted sparingly.

[2]

We are satisfied that this is not a case for leave.  Having regard to
    the positions taken at the set date and counsels availability for a
    consecutive two-day trial, we calculate the institutional delay at 10 months.
    That delay, in light of the relative complexity of the trial  counsel for the
    accused anticipated a two-day trial  is within the
Morin
guidelines,
    albeit barely, and is not inconsistent with the case law from the jurisdiction
    in question, which has recognized nine months as the outer limits for delay in
    simple, straightforward impaired driving cases.

[3]

Leave to appeal is refused.

Doherty J.A.

John Laskin J.A.

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rowe v. Canada (Attorney
    General), 2014 ONCA 199

DATE: 20140314

DOCKET: C57510

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Marlon Rowe

Applicant/Appellant

and

The Attorney General of Canada

Respondent/Respondent

J. Todd Sloan, for the appellant

Gregory Tzemenakis and Max Binnie, for the respondent

Heard: March 13, 2014

On appeal from the decision of Justice Brian Abrams of
    the Superior Court of Justice, dated July 18, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the Attorney General that this appeal is moot and that it
    should be dismissed on that basis. The appellant has been moved to the level of
    security he seeks on
habeas corpus
and, to the extent that his concern
    relates to his corrections record, there are alternate and more appropriate
    remedies.


COURT OF APPEAL FOR ONTARIO

CITATION: Skinner v. Thames Centre
    (Municipality), 2014 ONCA 164

DATE: 20140303

DOCKET: C56296

Feldman, Epstein and van Rensburg JJ.A.

BETWEEN

Bradley Skinner

Applicant (Appellant)

and

The Corporation of the Municipality of Thames
    Centre

Respondent (Respondent in appeal)

Carolyn Brandow, for the appellant

M. Paul Morrissey, for the respondent

Heard: November 19, 2013

On appeal from the order of Justice Alan W. Bryant of the
    Superior Court of Justice, dated October 24, 2012 and the costs decision dated
    November 19, 2012.

ENDORSEMENT

[1]

Storey Drive is a forced road
[1]
located between Lots 34 and 35 of the Third Concession in the respondent Municipality.
    The road has been described in this litigation for convenience, as comprised of
    three sections or parts.  In May 1993, the appellant acquired property abutting
    Section II of Storey Drive.  By application commenced in May 2012, he sought a
    declaration that Sections I and II of Storey Drive had been assumed by the Municipality
    as a public highway, and accordingly that the respondent is responsible for the
    maintenance of these sections of the roadway pursuant to subsection 44(1) of
    the
Municipal Act, 2001
, S.O. 2001, c. 25. Subsection 44(1) requires a
    municipality that has jurisdiction over a highway or bridge to keep it in a
    state of repair that is reasonable in the circumstances, including the
    character and location of the highway or bridge.

[2]

By the time the application was argued, it was acknowledged that Section
    I of Storey Drive had been assumed by the Municipality through regular
    maintenance. It was also common ground that the Municipality had not assumed Section
    III.  The only issue was whether the Municipality had assumed Section II as a
    public highway. The application judge determined that the Municipality had not
    assumed Section II, and he dismissed the application.

[3]

On appeal the appellant challenged this decision, as well as the award
    of costs in favour of the respondent.

[4]

The parties agree that the application judge identified the correct
    legal principles to govern his decision.  Until December 31, 2002, with the
    amendment of the
Municipal Act, 2001
to require a by-law to be passed by
    a municipality in order to assume a road (s. 31(2)), an open road in a
    municipality could be created by the common law doctrine of dedication and
    acceptance.  The onus was on the applicant to establish that, at some point
    during its history, the road (in this case Section II of Storey Drive) had been
    dedicated by the owner for public use, had become open to the public, and that
    the Municipality had demonstrated the intention to accept and assume
    responsibility for the road.  The test was articulated by this court in
Scott
    v. City of North Bay
(1977), 18 O.R. (2d) 365 at p. 367 as follows:

The assumption of a road or street for public use can be
    effected only by a corporate act of the municipal corporation.  If there is no
    by-law, an assumption may be inferred from work done by municipal employees, or
    other expenditure of public money in improving or maintaining the road or
    street.  In such a case the work or expenditure must be clear and unequivocal,
    and such as clearly and unequivocally indicate[s] the intention of the
    corporation to assume the roadIf there has been no regular expenditures of
    public money, and if the repairs are trivial and infrequent, they may be
    ascribed to courtesy rather than to the assumption of responsibility [citations
    omitted].

[5]

What constitutes a clear and unequivocal improvement or maintenance is a
    question of fact, and will vary with the use and nature of the particular road:
Grierson v. West Wawanosh (Town)
, [1998] O.J. No. 3173 (S.C.J.) at para.
    72.  The entire history of the road in question may be relevant, as once a road
    has become a public highway, its status can only be changed by way of a by-law:
Grierson,
at para. 70,
Simek v. Gravenhurst (Town)
2012 ONSC 6314
    at para. 10.

[6]

In this case, the fact that the road was open to the public was not in
    dispute. Sections I and II, according to the Land Titles registration system, are
    located on land owned by the Municipality.  There are no records to show how
    the Municipality came to own these portions of Storey Drive.  Although there
    was no record of a conveyance or deed of the land, the road had been referenced
    historically in property deeds (one dating back to 1911) as a public highway.
    All three sections of the road had been used by various people over the years,
    including the Story family
[2]
that had a farm at the end of Section III. The issue was whether, considering
    the character, use and maintenance of the road, at any time since its creation,
    Section II had been assumed by the Municipalitys conduct.

[7]

The appellant did not take issue with any material finding of fact of
    the application judge.  Rather, the appellant argued that the application judge
    erred in limiting his focus to the period after 1992, and in failing to
    consider the entire history of the road, including evidence of the use and
    maintenance of Section II of the road from the time when it was created.

[8]

The appellant referred to evidence that six properties had been accessed
    from Storey Drive over the years  two with houses, two that were regularly
    farmed and two that were used only for recreational and maple syrup collection
    purposes (one of which was later purchased by the appellant).  One house had
    been accessed from Section I. The second house was a permanent residence at the
    end of a laneway, accessed from Section III.  Mr. Story lived in that residence
    from the time he was born until 1992 when he moved into a long-term care
    facility. In 1976 Ian McKay, a beef cattle farmer, purchased the Story property,
    and between 1976 and 1981, when he obtained other access to his property from
    Section I, he travelled all three sections twice a day to access his cattle
    herd.  While there was no evidence who built the road, to the best of
    everyones recollection only the Municipality had maintained it.  The appellant
    submitted that the maintenance was sufficient to keep the road open for the use
    of a permanent resident for more than 60 years, and that in these
    circumstances, the work done on the road for Mr. Story demonstrated an
    intention by the Municipality to assume the roadway.

[9]

We disagree with the submission that the history of the road prior to
    1993 was not considered by the application judge. He noted at para. 17 of his
    decision, that there was evidence that infrequent, unplanned and sporadic
    measures were taken to assist Mr. Story (a long-time resident) as a courtesy
    and that Mr. Story had farmed there until he sold the property to Mr. McKay in
    1976.  The application judge referred to Mr. McKays evidence that Section II
    was not maintained by the Municipality and that the laneway was occasionally
    plowed for Mr. Story.  The application judge specifically concluded, at para.
    28, that the assistance provided to Mr. Story by an employee of the Municipality
    does not prove an intention by the Municipality to assume responsibility for
    Sections II and III of Storey Drive.

[10]

It
    is understandable that the reasons of the application judge addressed at some
    length the history of Storey Drive after Mr. Skinner acquired his interest.  It
    was Mr. Skinners evidence that, when he conducted his due diligence before
    purchasing the property, Section II had been graded and was generally in good
    condition, and that there had been a marked decline in the state of repair of
    Storey Drive since the early 1990s.  The application judge rejected this
    evidence as inconsistent with and contradictory to other evidence, including that
    of Mr. McKay, and two long-time employees of the Municipality, Stewart
    Findlater and Dennis Shand, which he reviewed in some detail and accepted.

[11]

The
    standard of review for questions of fact and questions of mixed law and fact is
    deference, absent a palpable and overriding error or an error in principle:
Housen
    v. Nikolaisen
, [2002] 2 S.C.J. No. 31, at paras. 8, 10 and 37.

[12]

The
    question is not whether this court would arrive at the same decision on the
    evidence, but whether the application judge overlooked important evidence in
    his decision and accordingly made a palpable and overriding error.  We are not
    persuaded that there was any such error in this case, and accordingly dismiss
    the appeal.

[13]

With
    respect to costs, we grant leave to appeal the costs decision, but dismiss the
    appeal.  There was no error in principle in the application judges approach to
    the issue of costs.  While the appellant sought a declaration that Sections I
    and II had been assumed, by the time the application was argued it was apparent
    that there was no issue with respect to Section I.  We agree that, on the
    record that was before the application judge, the respondent was entirely
    successful.

[14]

Costs
    of the appeal are fixed at $8,000 inclusive of disbursements and applicable
    taxes, and payable to the respondent by the appellant.

K.
    Feldman J.A.

Gloria
    Epstein J.A.

K.
    van Rensburg J.A.

[1]
The forced road was described in the Affidavit of Stewart Findlater, an
    employee of the respondent Municipality, as a road that had been forced without
    a legal survey across the subject lots, presumably to access the back of the west
    parts of Lots 34 and 35, and known as Road 34/35.  Sections I and II of Road
    34/35 were renamed Storey Drive in 1995 for the purpose of providing 911
    emergency services.  In these proceedings, the parties referred to all three
    sections of the forced road as Storey Drive.

[2]
Although Sections I and II of the road were named Storey Drive by the Municipality
    in 1995, the name of the family that had lived at the end of the road,
    according to the materials filed in the application, was Story.


COURT OF APPEAL FOR ONTARIO

CITATION: Sotiropoulou v. Beaudin, 2014 ONCA
    168

DATE: 20140303

DOCKET: C57740

Feldman, MacFarland and Epstein JJ.A.

BETWEEN

Maria Sotiropoulou and Apostolos Papatolikas

Appellants

and

Gilles Beaudin and Marie Hersa
    Pierre-Louis

Respondents

William Ribeiro, for the appellants

Karey Anne Dhirani, for the respondents

Heard and released orally:  February 14, 2014

On appeal from the decision of Justice David G. Stinson
    of the Superior Court of Justice, dated September 30, 2013.

ENDORSEMENT

[1]

The parties had negotiations, including a meeting, an offer by the
    appellants and a counter-offer by the respondents. The respondents counter-offer
    provided by its terms that it would become null and void at 8:00 p.m. on March
    15, 2012, if not accepted.

[2]

It was not accepted within the time specified. There was no
    communication of the acceptance of the counter-offer and nothing heard from the
    appellants until their lawyers requisition letter of March 23, 2012. By that time
    the respondents counter-offer had expired.

[3]

In our view, there was no error on the part of the motion judge to have
    concluded that there was never a meeting of the minds and no binding agreement.

[4]

Counsel submits that the terms of the respondents counter-offer were
    not essential terms of the agreement. However, the law is clear. As Professor
    Fridman notes, [m]ore than once has it been said that an acceptance must
    correspond precisely to the terms of the offer: G.H.L. Fridman,
The Law of
    Contract in Canada
, 6th ed. (Toronto: Carswell, 2011), at p. 57. Otherwise,
    the purported acceptance is at most a counter-offer, and a further
    communication of assent will be required from the offeror before a contract is
    formed: S.D. Waddams,
The Law of Contracts
, 6th ed. (Toronto: Canada Law
    Book, 2010), at para. 60.

[5]

The appeal is dismissed.

[6]

Costs to the respondents fixed in the amount of $6,500.00 inclusive of
    HST and disbursements.

K. Feldman J.A.

J. MacFarland J.A.

Gloria Epstein J.A.