COURT OF APPEAL FOR ONTARIO

CITATION:
Pagliuca v. Paolini
    Supermarket Limited, 2013 ONCA 87

DATE: 20130212

DOCKET: C55967

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

Angelo Pagliuca and Diamante Pacliuca

Applicants/Appellants

and

Paolini Supermarket Limited

Respondent/Respondent

Patrick Di Monte, for the appellants

Patrick Summers, for the respondent

Heard: February 11, 2013

On appeal from the judgment of Justice M. Edwards of the Superior
    Court of Justice, dated July 31, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The appellants seek to set aside the order of Edwards J. refusing to
    allow them to withdraw the admission in the affidavits supporting the claim in
    this Application that the respondents have a right-of-way over the subject
    lands. The Application is one of three proceedings between the parties
    concerning the lands (the first has been settled).

[2]

In this Application, McIsaac J. concluded that the respondents had
    wrongfully encroached on the lands by building a berm on them. While there may
    be another basis upon which his decision could have been supported, it is clear
    from the affidavits and the reasons of McIsaac J. that the Application was put
    to the court on the basis that the use of the admitted right-of-way was the
    underpinning factor. McIsaac J. ordered that the offending berm be removed and
    that the question of damages be remitted to trial. That issue is to be heard,
    together with the second action, at trial later this year.

[3]

This Court upheld the decision of McIsaac J.

[4]

The appellants now seek to withdraw their admission and argue that there
    is no existing right-of-way. They submit that they have recently discovered a
    break in the chain of title that gives them this argument.

[5]

Edwards J. rejected the motion on the basis that, while there may be a
    triable issue as to the existence of the right-of-way, the prejudice to the
    respondents in this proceeding by permitting the change in position they now
    assert militated against permitting the withdrawal of the admission.

[6]

We agree. The effect of permitting the amendment proposed would be to
    allow the appellants to have the damage issue determined on a different basis
    than that on which the liability issue regarding the encroachment was founded, and confirmed in this Court.

[7]

The appeal is therefore dismissed.

[8]

Costs to the respondent fixed at $5,108.95 inclusive of disbursements
    and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
Pournaras
    v. Zuo, 2013 ONCA 100

DATE: 20130215

DOCKET: C56072

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

Demetra
    Toula Pournaras, Athena Pournaras and Georgia Pournaras

Plaintiffs (Respondents)

and

Qiang Zuo
and the
    Wawanesa Mutual Insurance Company

Defendants (Appellant)

Sue K. Chen, for Qiang Zuo

Timothy Kinnaird, for the plaintiffs/respondents

Heard: February 13, 2013

On appeal from the order of Justice Beth Allen of the Superior
    Court of Justice, dated September 4, 2012.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge considered the three principles identified in the case
    law governing the exercise of discretion on a motion to set aside a default
    judgment. The motion judge however did not then consider whether, ultimately,
    it was in the interest of justice to set aside the default judgment. In our
    view, she erred in this regard. In this case, there are good reasons to
    conclude it is in the interests of justice to set aside the default judgment.

[2]

On the record it appears that the damage award was in excess of what was
    allowed under the simplified rules and the materials filed call into question
    whether the statutory requirements for applying deductibles were complied with.
    There was also an issue raised in the materials as to whether the claim met the
    threshold.

[3]

For these reasons, the appeal is allowed and the order of Allen J. is
    set aside and an order setting aside the default judgment of Whitaker J. is
    granted. The order of costs of Allen J. is also set aside. Costs of the appeal
    to be in the cause and fixed at $3,500 inclusive of disbursements and
    applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Angelis, 2013
    ONCA 70

DATE: 20130201

DOCKET: C53313

Laskin, Goudge and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Demetrios Angelis

Appellant

Howard L. Krongold, for the appellant

Kimberly Crosbie, for the respondent

Heard: December 11, 2012

On appeal from the conviction entered on October 30, 2010
    by Justice Robert J. Smith of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A.

introduction

[1]

The appellant, Demetrios Angelis, was charged with the second degree murder
    of his wife, Lien.  He accepts that he caused her death during a physical
    altercation.  The two principal issues at trial were whether he acted in
    self-defence, and whether he had the intent to commit murder.

[2]

After a 12-day trial before Smith J. and a jury, during which the
    appellant testified in his own defence, he was found guilty of second degree
    murder.  He was sentenced to life imprisonment, without eligibility for parole
    for 12 years.  He appeals his conviction.

[3]

There are two principal issues on the appeal: first, whether the trial
    judge erred by refusing to leave the defence of provocation with the jury; and
    second, whether the trial judge erred in his instructions to the jury on the
    appellants post-offence conduct.

[4]

On the first issue, the trial judge ruled that, as the appellant had
    testified he was not angry when he killed his wife, the subjective element of
    the test for provocation was not met and the defence had no air of reality.  The
    appellant submits that the trial judges ruling was wrong because there was
    other evidence, both direct and circumstantial, from which a properly
    instructed jury, acting reasonably, could find that provocation was made out.  The
    appellant and the Crown agree that if this first ground of appeal is
    successful, we ought to substitute a verdict of manslaughter.

[5]

On the second issue, the trial judge instructed the jury that they could
    take into account the appellants post-offence conduct in determining whether
    the appellant intended to kill his wife.  The appellant submits that this
    instruction was wrong because the appellants post-offence conduct was equally
    consistent with a finding of manslaughter as it was with a finding of murder.  He
    argues that the trial judge should therefore have instructed the jury that the
    evidence of post-offence conduct had no probative value on whether he had the intent
    for murder.  The appellant further submits that the trial judge should have specifically
    cautioned the jury about relying on his strange behaviour after his wife died
    as a basis to infer his guilt.  If this second ground of appeal succeeds, the
    appellant asks for a new trial because the trial judges charge on post-offence
    conduct may have affected the jurys assessment of both his intent and the
    defence of self-defence.

[6]

I would give effect to both grounds of appeal.  The defence of
    provocation had an air of reality; and the appellants post-offence conduct was
    not probative of whether he had the requisite intent for murder.  The appellant
    is entitled to a new trial on his second ground of appeal, and I would so
    order.

B.

background facts

[7]

As I would order a new trial, I will provide only a brief summary of the
    pertinent facts.  On Sunday morning, June 8, 2008, Lien Angelis died during a
    struggle with the appellant.  The struggle took place in front of their two young
    children in the living room of their small apartment.  The deterioration in the
    parties marriage in the months before Lien died, and the appellants conduct
    after her death are relevant to the two main grounds of appeal.

(1)

The parties marriage and its breakdown

[8]

The appellant and Lien met at university in 1990, and were married in
    1992.  They both became federal civil servants and lived in Ottawa.  Neither
    had a criminal record or any history of violence, and there had been no history
    of abuse in their relationship.

[9]

However, in April 2008, the marriage began to break down.  A
    precipitating incident was the appellants discovery that his wife had been
    having a covert affair with another man for 13 years.  Over the next two
    months, the relationship became highly acrimonious.  Lien was not interested in
    reconciling; she wanted a divorce.  Both parties consulted family law lawyers
    and prepared for a bitter custody battle.  In late May, the appellant served
    Lien with court papers seeking temporary sole custody of the children.  A
    hearing date was set for early July.

[10]

Although
    tensions escalated after April, neither party was willing to move out of the
    apartment or leave the children.  By May, Lien had stopped speaking to the
    appellant directly, and would communicate with him only through their 8-year
    old daughter, Nicki.

(2)

Liens state of mind in the months before she died

[11]

There
    was some evidence led at trial that in the months before she died, Lien tried
    to uncover incriminating evidence about the appellant, and tried to provoke him
    to act badly  push my buttons, as he said in a letter to his family law
    lawyer.

[12]

For
    example, at the end of May, Lien started videotaping the appellant as he went
    about his daily activities in the apartment.  Apparently, Lien was trying to
    capture incidents where the appellant mistreated the children in order to
    advance her claim for custody.

[13]

On
    June 7, the day before she died, Lien invited her boyfriend over to steal the
    hard drive in the appellants computer  again hoping to find some discreditable
    conduct that would help her in the custody fight.

[14]

And,
    throughout this period, Lien was preoccupied with money.  The appellant says that
    during the marriage he used virtually all of his income to pay the familys
    household expenses.  Liens earnings went into investments in her name and
    RESPs for the children.  She accumulated over $100,000.  She told co-workers
    that she was divorcing the appellant because he spent too much, and that she
    was not going to let him get her money in the divorce.

[15]

Understandably,
    the appellant described the atmosphere in the apartment as unbearable.

(3)

The fatal struggle on Sunday June 8

[16]

The
    appellant was planning to take his children to church that morning.  Indeed
    that day, Nicki was to graduate from Sunday school.

[17]

The
    evidence is conflicting on what precipitated the physical fight between Lien
    and the appellant that ended in Liens death.  According to Nicki, her parents
    were fighting about money.  According to the appellant, Lien and Nicki had been
    arguing.  The appellant tried to intervene, clad only in his boxer shorts as he
    was getting dressed for church.

[18]

The
    struggle that ensued was brief, but violent.  The appellant said that Lien suddenly
    attacked him.  She scratched him on his face, lips, chest and torso; and she
    clawed his penis, drawing blood, and causing pain in his groin.  The appellant,
    in turn, tackled Lien, straddled her and tried to restrain her arms.  Lien told
    Nicki to call the police, but Nicki was too afraid to do so.  Nicki said that at
    one point the appellant covered her mothers mouth with his hand; the appellant
    said that if he covered Liens mouth, it was only in passing.

[19]

Lien
    ended up on the floor either on her stomach (the appellants account) or on her
    back (Nickis account).  The appellant was on top of her, straddling her again,
    and pinning her arms down.  Then Lien suddenly stopped breathing.  It was
    apparent to the appellant that his wife was dead.

[20]

Lien
    weighed 95 pounds and was 4 feet 9 inches tall; the appellant weighed 150
    pounds and was 5 feet 6 inches tall.  The pathologist could not determine the
    specific mechanism of death, but thought asphyxiation (deprivation of oxygen)
    was a possibility.  Asphyxiation can result from smothering (obstruction of the
    airways), strangulation, or burking (sitting on the chest or upper back and
    interfering with respiration), or a combination of these three mechanisms.  Regardless
    of the mechanism, the pathologist testified that once the air supply is blocked,
    unconsciousness comes very rapidly, likely in less than a minute, and death occurs
    quickly afterwards.

[21]

The
    appellant testified that he was not angry during this struggle.  He did not
    intend to hurt Lien or to cause her death.  His intent was to stop her from
    hurting him.

[22]

The
    Crown urged the jury to find that the appellant had intentionally killed Lien
    in a fit of sudden rage.

(4)

The appellants post-offence conduct

[23]

The
    appellants post-offence conduct, relied on by the Crown and the subject of the
    trial judges charge, can be viewed in two categories.

[24]

In
    the first category is the appellants inaction immediately after becoming aware
    that his wife had died.  Although the appellant is a trained nurse, he did not
    administer CPR to try to revive Lien.  Nor did he call 911.  He testified that
    he was in shock.

[25]

In
    the second category is the appellants behaviour in the three or four hours
    after Lien died.  He folded the living room carpet over her and dragged her
    body into the master bedroom.  He said that he did so to prevent his son, Theo,
    from touching his mother.  The appellant then put his wifes makeup on to hide
    his injuries.  He laid out six pairs of his underwear in the bathroom.  He
    claimed that he did so because blood from his penis kept soaking through each
    pair.

[26]

The
    appellant then collected the children and took them to church.  He said that he
    wanted to find some sense of maybe normalcy in an abnormal situation.  Nicki
    received her certificate for graduating from Sunday school.  The appellant took
    communion with Theo in his arms.  While at church the appellant telephoned his
    brother in Montreal to arrange for him to get the children.  His brother wanted
    a contact person in Ottawa so the appellant phoned his family law lawyer, but
    could not reach her.

[27]

About
    an hour and twenty minutes after leaving his apartment, the appellant returned.
     Once home, he retrieved some Christmas presents he had previously bought for
    the children and gave them to Nicki and Theo.  He said that he did so because
    he thought he might be separated from them for some time.

[28]

At
    around 2:10 p.m., about an hour and a half after returning home and between
    three and four hours after Lien died, the appellant called 911.  When he reported
    his wifes death to the operator, his tone of voice was calm and casual.  During
    their deliberations, the jury twice asked for the recording of this call to be played
    for them aloud in court.

C.

discussion

(1)

The trial judge erred by refusing to leave the defence of provocation
    with the jury

[29]

Under
    s. 232(1) of the
Criminal Code
, murder may be reduced to manslaughter
    if the person who committed the murder did so in the heat of passion caused by
    sudden provocation.  Section 232(2) defines provocation as [a] wrongful act
    or insult  sufficient to deprive an ordinary person of the power of
    self-control ... if the accused acted on it on the sudden and before there was
    time for his passion to cool.

[30]

From
    the statutory definition, it is evident that provocation has both an objective
    and subjective element.  The Supreme Court considered these elements in
R.
    v. Tran,
2010 SCC 58, [2010] 3 S.C.R. 350, at para. 23, citing with
    approval the following passage from Cory J.s majority judgment in
R. v.
    Thibert
, [1996] 1 S.C.R. 37, at para. 4:

First, there must be a wrongful act or insult of such a nature
    that it is sufficient to deprive an ordinary person of the power of
    self-control as the objective element. Second, the subjective element requires
    that the accused act upon that insult on the sudden and before there was time
    for his passion to cool. [Emphasis in original omitted.]

[31]

In
    this case, the trial judge ruled that the objective element of provocation had
    an air of reality.  Liens clawing of the appellants penis was a wrongful act
    sufficient to deprive an ordinary person of the power of self-control.  On
    appeal, the Crown does not challenge this aspect of the trial judges ruling.  However,
    the trial Crown argued and the trial judge agreed that the subjective element
    of the provocation defence had no air of reality because the appellant
    testified that he was not angry after Lien attacked him.

[32]

This
    ruling is wrong in law.  The air of reality test requires a trial judge to leave
    a defence with a jury where there is evidence upon which a reasonable jury
    acting judicially could find that it succeeds:
R. v. Tran
, at para.
    41.  In making this determination, a trial judge must examine the totality of
    the evidence:
R. v. Krasniqi
, 2012 ONCA 561, 295 O.A.C. 223, at para.
    52.

[33]

Although
    an accuseds testimony is an important consideration in assessing the viability
    of a provocation defence,
the trial
judge
    should always consider any other evidence capable of supporting an inference of
    sudden rage or loss of control.  Even where an accused denies being angry at
    the time of the offence, if there is other evidence on which a jury could find
    provocation was made out, the trial judge must leave the defence with the jury.

[34]

For
    example, in this case, the jury may have rejected the appellants testimony
    that he was not angry, and accepted other evidence about the altercation suggesting
    that he had, in fact, lost control when Lien attacked him:
R. v. Gill
,
    2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 17-19.  The trial judge was thus not
    justified in withdrawing the defence from the jury solely on the basis of the
    appellants disavowal of anger.  Instead, he was required to consider whether
    there was any evidence before the jury, from the appellants mouth or
    otherwise, establishing the subjective element of the defence.

[35]

I
    think that there was, for two reasons: the position taken by the Crown, and the
    other pieces of evidence, direct and circumstantial, that gave an air of
    reality to the defence.

(a)

The Crowns position at trial

[36]

The
    Crowns position at trial was that the appellant intended to kill his wife
    because he was angry.  I accept, as Ms. Crosbie contends, that anger alone does
    not make out the defence of provocation.  Anger may fuel cold blooded revenge,
    which is the antithesis of a loss of control.  But anger may also fuel sudden
    rage, a loss of control, inflamed passions, a killing in the heat of the moment
    before regaining control of oneself.  However phrased, when an accused acts in
    this latter fashion, the provocation defence has an air of reality:
R. v.
    Krasniqi
, at para. 51.

[37]

The
    Crown repeatedly suggested to the appellant in cross-examination that he was
    extremely angry and that, in the midst of the struggle, he wanted his wife
    dead.  In her closing address to the jury, the Crown again forcefully argued
    that the appellant meant to kill Lien because he was enraged.  For example, she
    made the following comments to the jury:

·

I submit to you that Mr. Angelis killed his wife and he meant
    to.  That was his intent.  He was enraged.

·

were getting to this issue here of rage.

·

I would submit to you that Mr. Angelis state of mind in the
    weeks and days leading up to the murder was that building up to anger and
    ultimately, to rage.

·

You can find him guilty of murder even if you find that the
    intention to kill her happened during the assault.  This is not a situation
    where you need to find that he formulated some intent to kill her at any time
    prior to this happening  Intent can be formed very quickly before or even
    during the offence

[38]

And
    the Crown ridiculed the appellants claim that he was not angry.  She said: He
    never feels anger.  He only feels shock.  Its unexpected.  He never feels
    anger.  That makes no sense.  Who wouldnt feel anger?

[39]

The
    Crowns argument that the appellant became enraged immediately before or during
    the struggle suggests that there was some evidentiary basis for finding that he
    was provoked.  A Crown cannot argue to the jury a speculative position not
    founded on the evidence.  That would be improper:
R. v. Boudreau
, 2012
    ONCA 830, at para. 16.    By making these comments, the Crown thus implicitly
    acknowledged that there was evidence to show the subjective element of provocation
    could be made out.

[40]

Moreover,
    it seems to me that the Crown cannot have it both ways.  It cannot go to the
    jury and argue that the appellant killed his wife because he became suddenly enraged,
    and yet object to the defence of provocation being left with the jury.  That is
    simply unfair.

(b)

Evidence showing that the subjective element of provocation had an air
    of reality

[41]

Apart
    from the Crowns position, there was evidence, both direct and circumstantial,
    from which a jury could conclude that the subjective element of provocation was
    made out.  In other words, there was evidence that suggested the appellant lost
    control of his senses and, before regaining control, killed his wife in a
    sudden rage.  This evidence included the following:

The testimony of David Kenny
.  Mr.
    Kenny was a neighbour who lived down the hall from the appellants apartment,
    over 60 feet away. He testified that on the morning of Liens death, he heard
    shouting from another apartment and a male voice yell what sounded like the
    word bitch. As the Crown argued to the jury: Is there a word that is more
    evocative about how a man could feel about a woman than the word bitch?
    Kenny told the police that if it was only about a minute between the time the
    shouting started and ended. Kennys testimony is therefore credible evidence
    that the appellant acted out of sudden rage.

The witnesses to Liens death
.  The
    appellant killed his wife in front of their two children. Yet the appellant
    undeniably loved his children and was their primary caregiver. For him to have
    done what he did in front of his children suggests that he was not in control
    when he killed Lien.

The context of the relationship and the
    nature of Liens acts
. By June, the relationship between the appellant
    and Lien had become highly acrimonious and overlaid with strong emotions on
    both sides.  To repeat the appellants description, the atmosphere had become
    unbearable. Yet, the appellant and his wife and their children continued to
    live together in their apartment. In that context, Lien attacked the most
    intimate part of the appellants body. It would not be hard to infer that in
    this context, the clawing of the appellants penis caused him to lose control
    and suddenly turn on his wife.

The appellants nature
. It is hard
    to understand why a mild mannered civil servant with no history of violence or
    abuse in his relationship with his wife would turn on her in an instant and
    then panic after  unless he acted out of sudden rage.

The suddenness of the attack and the brevity
    of the encounter
. The appellant was unprepared for what occurred. He was
    getting ready to go to church. Both his evidence and Kennys evidence suggest
    that what occurred happened fast. Indeed, it was for this reason that the
    Crown suggested to the jury the appellants intent to kill could have formed
    suddenly during the course of the struggle. Equally plausible, the appellant
    could have suddenly become so enraged that he killed his wife before his anger
    subsided.

[42]

Thus,
    there was an air of reality to the defence of provocation.  The trial judge
    erred by refusing to leave this defence with the jury.  Accordingly, the
    appellants conviction for second degree murder cannot stand.  The appellant
    and the Crown agree that this error, standing alone, leads to a substituted
    verdict of manslaughter.  However, the trial judge also erred in his charge to
    the jury on the appellants post-offence conduct.

(2)

The trial judge erred in his charge to the jury on the appellants post-offence
    conduct

(a)

The charge and the parties positions on appeal

[43]

Because
    the jury could not consider provocation, the appellants intent became the
    central issue in the case.  If the jury was satisfied that the appellant had
    the intent to kill, then his defence of self-defence could not succeed.  A
    conviction for murder was inevitable.

[44]

The
    trial judge repeatedly instructed the jurors  no less than eight times  that
    they could use the appellants post-offence conduct to decide whether the
    appellant intended to kill his wife.  The critical portion of his charge is as
    follows:

Evidence of what a person said, did or did not do after an
    offence was committed may help you decide whether the accused
intended to kill
his wife Lien. It may help, or it may
    not.

What a person said, did or did not do after an offence was
    committed may indicate that he acted in a way which, according to human
    experience and logic, is consistent with the conduct of a person who
intended to commit the offence and inconsistent with the
    conduct of someone who did not intend to do so
. On the other hand, there
    may be another explanation for what Demetrios Angelis said, did or did not do
    afterwards, which was something unconnected with his intention to commit the
    offence charged.

You have heard evidence that after the offence charged was
    committed, the accused did not attempt to resuscitate Lien or immediately call
    9-1-1, but rather, rolled Liens body into the carpet and dragged her body into
    the bedroom. The accused admitted that he was trained as a nurse and that he
    admitted that he knew how to administer CPR, but did not do so. Nicki testified
    that the accused told her and Theo that mommy was dead, that it was okay to be
    sad and to cry, that he could go to jail for a long time and that he would give
    them presents to make them happy. The accused then got dressed, dressed the
    children, took the children to Sunday school. He only called 9-1-1 at
    approximately 2:10 p.m., after attending church on Sunday afternoon, after
    making three calls to his brother, one from a pay phone, and two calls to his
    Family law lawyer, and after he had been at the apartment for an hour and 30
    minutes. You heard a tape recording of the accused when he spoke for some time
    with the 9-1-1 dispatcher, which you can consider as evidence of the accuseds
    mental state at that time.

The evidence of what the accused said, did or did not do after
    Lien died is not disputed. You must next consider whether this was because
    Demetrios Angelis was
conscious of intentionally killing his
    wife
or for some other reason. You must be careful not to immediately
    conclude that what he said, did or did not do was because he was conscious of intentionally
    killing his wife.

You must not use this evidence about what Demetrios Angelis
    said, did or did not do afterwards in deciding or helping you decide that
    Demetrios Angelis
intended to kill Lien
unless you
    reject any other innocent explanation for it.

If you find that what Demetrios Angelis said, did or did not do
    afterwards was because he was conscious of having
intentionally
    killed Lien
, you may consider this evidence, together with all of the
    other evidence, in reaching your verdict.

On the other hand, if you do not find that Demetrios Angelis
    said, did or did not do those things because he was
conscious
    of intentionally killing Lien
, then you must not use this evidence in
    helping you decide that Demetrios Angelis committed the offence charged.
    [Emphasis added.]

[45]

The
    appellants submission that the trial judge erred in giving these instructions rests
    primarily on two grounds.  First, the appellant submits that the instructions
    invited the jury to infer a specific intent to kill on an unsound,
    impermissible basis  his post-offence conduct.  He argues that his behaviour
    after his wife died was equally consistent with murder and manslaughter, and therefore
    could not be probative of his intent at the time of the offence.  The appellant
    accepts that the jury was entitled to use his post-offence conduct to determine
    whether he had committed a culpable act, potentially undermining his claim of
    self-defence; however, he submits that they were not entitled to use it to
    infer his degree of culpability.

[46]

Second,
    he submits that the trial judge should have cautioned the jury about relying on
    the post-offence conduct evidence at all.  He contends that his strange
    demeanour in the wake of Liens death is the type of evidence that has highly
    suspect probative value and [is] easily misinterpreted:
R. v. Bennett
(2003),
    67 O.R. (3d) 257,

at para. 147.  The judge was therefore obliged to specifically
    instruct the jury not to draw any inference from it or, at the very least, to
    exercise caution before relying on it.

[47]

The
    appellant acknowledges that defence counsel failed to object to these
    instructions at trial.  However, he contends that because the errors went to
    the central issue at trial, the conviction cannot stand.

[48]

The
    Crown submits that the post-offence conduct principally relied on by the trial
    Crown was the appellants failure to perform CPR on Lien or immediately call
    911  what I have described as the first category of the appellants
    post-offence conduct.  She argues that this is the type of post-offence conduct
    from which a jury can properly infer an intent to kill.  The Crown further submits
    that the trial judge did caution the jury that there may be another
    explanation for what [the appellant] said, did or did not do afterwards, which
    was something unconnected with his intention to commit the offence charged.  This
    general caution was adequate to prevent the jurors from placing undue weight on
    evidence of the appellants behaviour after his wife died.

[49]

Alternatively,
    the Crown submits that even if the trial judge erred in his instructions, no
    miscarriage occurred, and we should apply the curative proviso under s.
    686(1)(b)(iii) of the
Criminal Code
.

[50]

I
    agree with the appellant that the trial judge erred by telling the jury that
    they could infer from the appellants post-offence conduct that he had the
    intent to kill his wife.  I also agree with the appellant that the error was
    neither harmless nor the result of a tactical decision by defence counsel.
    Therefore, I would not apply the proviso, despite the absence of an objection
    at trial.

(b)

The use of post-offence conduct to determine culpability: general
    principles

[51]

An
    accuseds post-offence conduct is generally admissible to show that the accused
    acted in a manner which, based on human experience and logic, is consistent
    with the conduct of a guilty person and inconsistent with the conduct of an
    innocent person:
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A), at p.
    629.

[52]

However,
    evidence of post-offence conduct may be susceptible to jury misuse, especially when,
    as in this case, the accused has admitted to committing the
actus reus
of an offence and the Crown is relying on the post-offence conduct to
    demonstrate a specific level of intent.  Although this evidence will often be
    prejudicial to the accused, it will rarely have any significant probative value
    going to the accuseds state of mind during the commission of the criminal
    act.  That people will generally behave one way after they kill someone
    purposefully and another way after they kill someone accidentally is often a dubious
    assumption.

[53]

Therefore,
    in a long line of cases, both the Supreme Court of Canada and various courts of
    appeal, including this court, have held that an accuseds post-offence conduct
    may be probative of an accuseds culpability, but not of the level of that
    culpability.  These courts have so held because the accuseds post-offence
    conduct is as consistent with an inference that the accused committed
    manslaughter as it is with an inference that the accused had the intent for
    murder.  Where self-defence is raised as a defence, an accuseds post-offence
    conduct is circumstantial evidence from which a jury can infer that the accused
    committed a culpable act, and thus did not act in self-defence.  But,
    ordinarily, trial judges have been obliged to instruct juries that post-offence
    conduct evidence cannot be used to infer that the accused committed murder
    rather than manslaughter: see
R. v. Arcangioli
, [1994] 1 S.C.R. 129, at
    pp.145-146;
R. v. Marinaro,
[1996] 1 S.C.R. 462, adopting the
    dissenting reasons in (1994), 95 C.C.C. (3d) 74 (Ont. C.A.);
R. v. Peavoy
,
    at para. 34;
R. v. White (1998),
[1998] 2 S.C.R. 72, at p. 89;
R.
    v. Swanson,
2002 BCCA 528, 168 C.C.C. (3d) 1, at para. 18;
R. v.
    Rodrigue,
2007 YKCA 9, 223 C.C.C. (3d) 53, at paras. 47-49;
R. v.
    Figueroa
, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 35-37.

[54]

Recently,
    in
R. v. White (2011)
, 2011 SCC 13, [2011] 1 S.C.R. 433, the Supreme
    Court considered the use of post-offence conduct to support an inference of
    intent.  Rothstein J., writing for the majority, clarified at para. 31 of his
    reasons that post-offence conduct should be treated like any other type of
    circumstantial evidence:

Given that [e]vidence of post-offence conduct is not
    fundamentally different from other kinds of circumstantial evidence, the
    admissibility of evidence of post-offence conduct and the formulation of
    limiting instructions should be governed by the same principles of evidence
    that govern other circumstantial evidence.  In particular, to be admissible,
    such evidence must be relevant to a live issue and it must not be subject to a specific
    exclusionary rule (e.g. hearsay rule); it may also be excluded pursuant to the
    exercised of a recognized judicial discretion, such as the discretion to
    exclude evidence whose prejudicial effect outweighs its probative value.  These
    same principles also determine the need for and scope of a limiting
    instruction. [Internal citations omitted.]

[55]

Post-offence
    conduct, therefore, is not subject to blanket rules.  It is circumstantial
    evidence whose probative value depends on the nature of the evidence, the issues
    at trial and the positions of the parties.  Thus, we do not automatically label
    certain kinds of post-offence conduct as always or never relevant to a
    particular issue.  Rather, we must consider all the circumstances of a case to
    determine whether the post-offence conduct is probative and, if so, what use the
    jury may properly make of it.  In the words of Rothstein J., at para. 36 of
R.
    v. White (2011)
, the overriding question is this: what do logic and human
    experience suggest that a jury can legitimately or rationally infer from the
    accuseds post-offence conduct?

(c)

The principles applied to this case

[56]

In
    this case, the trial judge should not have invited the jury to use the
    appellants post-offence conduct to infer the level of his culpability  to
    infer that he was guilty of murder, not manslaughter.  As a matter of logic and
    human experience, the appellants post-offence conduct could not support a
    rational inference of an intent to kill.  That it could not do so is evident
    from the circumstances.  The appellant and his wife had no history of violence
    or abuse in their relationship.  Yet, they had just had a sudden and very
    physical altercation.  The altercation occurred in front of their two
    children.  It was brief.  It left the appellant disoriented and bleeding
    profusely from his genitals.  And when it was over he knew only two things:
    Lien was dead, and he had killed her.

[57]

In
    these circumstances, logic and human experience suggest that the appellants
    post-offence conduct was as consistent with a panicked reaction to Liens
    sudden and unintended death, as it was with a panicked reaction to her sudden
    and intended death.  Thus, the jury should not have been repeatedly instructed
    that they could use this evidence to decide whether the appellant had the
    intent for murder.

[58]

Even
    if one were to focus on what was likely the most cogent of the appellants
    post-offence conduct  the first category, namely, his failure to administer
    CPR to Lien or to immediately call 911  I am not persuaded that his conduct
    could rationally support an inference of an intent to kill, rather than simply
    an inference of having done something wrong.  Indeed, recent case law from this
    court suggests that an accuseds failure to render assistance after learning
    the victim may be dead is not probative of an accuseds level of culpability: see
R. v. Anthony
, 2007 ONCA 609, 228 O.A.C. 272, at paras. 52-58;
R. v.
    Cudjoe
, 2009 ONCA 543, 251 O.A.C. 163, at para. 88;
R. v. McIntyre
,
    2012 ONCA 356, 291 O.A.C. 359, at para. 40.

[59]

Moreover,
    although the Crown did focus on the first category of the appellants
    post-offence conduct, the trial judges instructions did not.  They referred to
    all of the appellants conduct after Lien died, including the appellants strange
    demeanour in the hours following the fight.  Even the Crown fairly acknowledges
    that the evidence falling in that second category could not, on any common
    sense view, be probative of whether the appellant intended to kill his wife.

[60]

For
    these reasons, the trial judge erred when he expressly instructed the jury that
    they could take the appellants post-offence conduct into account in
    determining whether he intended to kill his wife.  Instead, he should have
    instructed the jury that the appellants post-offence conduct was relevant only
    to the question whether the appellant had committed a culpable act or had acted
    in self-defence.  And, because the appellants post-offence conduct was not
    relevant to the issue of his intent, the trial judge should have further
    instructed the jury this evidence had no probative value on the question
    whether the appellant was guilty of murder or manslaughter:  see
R. v.
    White (2011)
, at para. 60.

[61]

I
    do not think it can be said that the trial judges erroneous instructions on
    the appellants post-offence conduct caused no substantial wrong.  The
    erroneous instructions were potentially highly prejudicial to the appellant as
    they went to the central issue in the case: his intent.  Therefore, even though
    defence counsel had the trial judges charge in advance and did not object to
    the instructions on post-offence conduct, I would not apply the proviso.
    Because the post-offence conduct instructions potentially affected the
    appellants claim of self-defence, this error warrants a new trial.

(d)

The absence of a caution

[62]

Post-offence
    conduct evidence may not be relevant to one issue but probative of another.
    For example, the appellant acknowledges before this court that a jury can
    legitimately infer from post-offence conduct that an accused is aware of having
    committed a culpable act.  In this case, that inference might be capable of
    undermining the appellants defence of self-defence.

[63]

However,
    the appellant argues that, because of the nature of the post-offence conduct in
    question, the trial judge should have specifically cautioned the jury against
    relying on this evidence at all.  He contends that the conduct falling within
    the second category  his odd behaviour after his immediate inaction when Lien
    died  qualifies as demeanour evidence.  And, he submits, because demeanour
    evidence is especially susceptible to juror misuse, the generalized caution
    given by the trial judge in this case was not sufficient.  In support of his
    submission, he relies on the following cases:
R. v. Levert
(2001), 159
    C.C.C. (3d) 71 (Ont. C.A.), at paras. 26-27;
R. v. Trotta
(2004), 190
    C.C.C. (3d) 199 (Ont. C.A.), revd on other grounds, 2007 SCC 49, [2007] 3
    S.C.R. 453, at para. 40;
R. v. White (2011)
, at paras. 107, 133 and
    138.

[64]

The
    appellants demeanour after his wife died was undeniably bizarre  wrapping his
    wife in a carpet, putting on his wifes makeup, taking his children to church,
    bringing his children back to the apartment and giving them presents bought for
    Christmas in the middle of June, and finally making a 911 call in a completely
    calm, almost detached voice.  This evidence could have played a powerful role
    in the jurys deliberations.  Jurors tend to focus on this sort of evidence.
    They find it cogent and significant.  It is seemingly hard to explain away.
    Defence counsel acknowledged as much when he characterized the appellants
    post-offence conduct as the elephant in the room.

[65]

As
    I would order a new trial on the error in the trial judges express post-offence
    conduct instructions, I need not decide whether the trial judge erred by
    failing to specifically caution the jury about relying on the appellants demeanour
    after Lien died.  It will be up to the trial judge at the new trial to
    determine whether a caution is called for.

(3)

Other grounds of appeal

[66]

The
    appellant argued several other grounds of appeal.  It is unnecessary to
    consider these other grounds in view of my disposition of the two main grounds
    of appeal.

D.

conclusion

[67]

The
    trial judge erred by refusing to leave the defence of provocation with the
    jury.  The trial judge also erred in his instructions to the jury on the
    appellants post-offence conduct. I would therefore allow the appeal, set aside
    the appellants conviction and order a new trial.

Released: Feb. 1, 2013                                          John
    Laskin J.A.

JL                                                                    I
    agree S.T. Goudge J.A.

I
    agree E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bourdon, 2013
    ONCA 86

DATE: 20130212

DOCKET: C53397

Laskin, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

René Ronald Bourdon

Appellant

René Ronald Bourdon, acting in person

Gerald Chan, acting as duty counsel

Michal Fairburn, for the respondent

Heard: February 7, 2013

On appeal from the conviction entered on August 23, 2010
    by Justice James R.H. Turnbull of the Superior Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

Duty counsel argued two grounds of appeal:

1.  The search
    of the computer bag violated s. 8 of the
Charter
because it was not
    covered by the warrant.

2.  The search
    of the contents of the computer also violated s. 8 because it was based on an
    overly broad warrant.

[2]

On the first ground, the trial judge found that the search of the bag
    was incidental to the search of the computer.  We are inclined to agree with
    the trial judges finding.  However, as the Crown pointed out, this issue need
    not be resolved because everything on the DVD in the computer bag was also
    found on the computer.

[3]

Thus, this appeal turns on the second ground argued by duty counsel
    whether the search of the computer was based on an overly broad warrant.  In
    our view, the warrant was not overly broad.

[4]

The warrant was based on an ITO that alleged a breach of a specific
    condition of the LTSO, namely that the appellant not have any access to the
    internet or possess any computer that had internet capability.  Thus, the
    parole authorities sought a warrant to search for breaches of the LTSO, and
    attached that certificate to the ITO.

[5]

The warrant that was issued was therefore not overly broad because it
    was anchored in the specific conditions of the LTSO.  We add that the computer
    would only reasonably yield information about some of these conditions.

[6]

Accordingly, we are satisfied that there was no breach of s. 8 of the
Charter
.
    The appeal against conviction is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Bresnark, 2013
    ONCA 110

DATE: 20130221

DOCKET: C53704

Epstein, Hoy and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Bresnark

Appellant

Steven Bresnark, in person

Brendan Gluckman, for the respondent

Heard and released orally: February 12, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court dated March 17, 2010 by Justice David Aston of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on May 7, 2007 by
    Justice Marion E. Lane of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal from the order of Aston J.
    dismissing his summary conviction appeal.  On May 7, 2007, the appellant was
    convicted of seven counts of attempting to obtain income tax refunds contrary
    to s. 239(1) of the
Income Tax Act
.  On January 10, 2008 he received a
    global sentence of two years less a day.  He was also fined.

[2]

On November 1, 2007, the appellant appealed both his conviction and
    sentence.  The appeal was to be heard by Wilson J. on February 19, 2010, but
    the conviction appeal had not been perfected.  She ordered that unless the
    conviction appeal was perfected by February 24, 2010, the conviction appeal
    would be dismissed as abandoned.

[3]

The matter came before Justice Aston on March 17, 2010.  He disposed of
    the sentence appeal.  However, the conviction appeal still had not been
    perfected.  The appellant asked for an adjournment to file fresh evidence in
    support of an ineffective assistance of counsel argument.  The summary
    conviction appeal judge refused the adjournment request and dismissed the
    conviction appeal on the basis that there was no acceptable explanation for the
    delay in perfecting the appeal.

[4]

Mr. Bresnark now appeals the dismissal of his conviction appeal to this
    court.  Pursuant to s. 839(1) of the
Criminal Code
, he requires leave.

[5]

A second appeal in summary conviction proceedings is the exception, not
    the rule.
R. v. R.(R.)
(2008), 90 O.R. (3d) 641.  First, the matter in
    issue must raise a question of law alone.  Even if the proposed appeal involves
    a question of law alone, there are only two types of cases in which leave to
    appeal may be granted.  One is when the matter raised has significance to the
    administration of justice beyond the particular case and the grounds of appeal
    are at least arguable.  The other is where the merits appear to be very strong
     particularly if the conviction is serious and the appellant is facing a
    significant deprivation of his or her liberty.

[6]

In our view, leave to appeal is not available in this case.

[7]

First, this appeal does not raise a question of law.  It involves the
    exercise of the courts discretion in the application of the
Rules of Civil
    Procedure
with respect to the hearing of appeals.

[8]

Second, even if the appellants case did involve an issue of law alone,
    neither of the other two tests could be met.  While the issues raised are
    clearly important to the appellant, this case does not involve any matter of
    significance to the general administration of criminal justice.  As we have
    said, it raises issues pertaining to the exercise of discretion in the
    application of the Rules.  And, the merits of the appeal are far from strong,
    given all of the circumstances in this extraordinary matter.  Moreover, the
    appellant has served his sentence.

[9]

We would add that we find the appellants underlying claim of
    ineffective assistance of counsel to be entirely without merit.

[10]

This
    is clearly not an appropriate case for granting leave to appeal.  Leave to
    appeal is therefore dismissed.

Gloria J.
    Epstein J.A.

Alexandra Hoy
    J.A.

P. Lauwers 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.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Burnie, 2013 ONCA 112

DATE: 20130222

DOCKET: C53111

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Burnie

Appellant

William V. Reid, for the appellant

Gillian E. Roberts, for the respondent

Heard: September 18, 2012

On appeal from the convictions entered on October 25,
    2010 by Justice J. Christopher Corkery of the Superior Court of Justice,
    sitting without a jury.

Tulloch J.A.:

(1)

OVERVIEW

[1]

The
    appellant was charged with two counts of sexual assault, two counts of touching
    for a sexual purpose a person under the age of fourteen and one count of simple
    assault.

[2]

The
    appellant was a substitute teacher and the two female complainants were grade
    six and seven students. The two incidents giving rise to the charges occurred in
    the same school on two different days one week apart. The evidence led at trial
    consisted mainly of that given by two complainants and two witnesses. Each
    witness was a female classmate of one of the complainants and gave evidence
    concerning each incident. At the unopposed request of the Crown, the trial
    judge admitted video statements given by the complainants and witnesses to the
    police. These statements were played in court and adopted by the complainants
    and witnesses in their examinations in-chief pursuant to s. 715.1 of the
Criminal
    Code
. The complainants and witnesses were cross-examined on their
    interaction with each other prior to the revelation of these incidents to a
    teacher, the school principal and ultimately the police. During the trial, the
    school principal and one teacher also testified briefly.

[3]

The
    evidence was heard over three days and the trial was adjourned for submissions.
    Those submissions did not form part of the record before this court. At the
    commencement of the trial, the Crown applied for the admission of each incident
    as similar fact evidence in support of the other. The appellant opposed this
    application. While the trial judge did not rule on the admissibility of the
    similar fact application during the course of the trial, he did admit the
    similar fact evidence and indicated this during his reasons for judgment.

[4]

At
    the end of the trial, the trial judge reserved his judgment and delivered his
    reasons orally. Included in these reasons was his ruling granting the similar
    fact evidence application, as well as convicting the appellant of the sexual
    assault and sexual touching counts for each complainant. The Crown did not
    pursue the simple assault charge. Accordingly, it was dismissed.

[5]

The
    matter was adjourned for sentence and the trial judge ultimately sentenced the appellant
    to 90 days in jail, to be served intermittently and to be followed by a period
    of probation. The judge also ordered that he provide a sample of his DNA,
    register as a federal sex offender, and abstain from the possession of weapons..

[6]

The
    appellant appeals his conviction and sentence on the basis that the trial
    judges reasons for conviction were not sufficient to permit meaningful
    appellate review.

[7]

I
    find the trial judges reasons fall short with respect to his treatment of the
    evidence in this case, in particular, that the complainants and the witnesses
    had the opportunity to collude in his treatment of the conflicting evidence
    elicited by the defence. For the reasons that follow, I would allow the appeal,
    set aside the appellants convictions and order a new trial.

(2)

FACTS

[8]

In
    light of the disposition I would order, I review the facts only insofar as is
    necessary to understand the nature of the evidence and the issues for this
    court to decide. I stress that nothing I say, particularly with regard to any
    apparent inconsistencies in the evidence, should be taken as an assessment of
    the credibility or strength of the evidence. Those would be issues for the new
    trial judge to determine guided by the appropriate legal principles.

(a)

May 13th, 2008 Incident:

(i)

Evidence
    of E.M.

[9]

On
    May 13th, 2008, the appellant was working as a substitute teacher in a grade 7
    class. E.M. and A.S. were students in that class. E.M.s evidence was that she
    was eating lunch with a group of students in the classroom when the appellant
    approached her group to ask some of the boys to settle down. E.M.s friend A.S.
    called to her from across the room. She rose to go see her.  She testified that
    while she was standing, however, the appellant grabbed her butt on the right
    cheek of her buttocks with his left hand for like five seconds. It ended when
    she walked away. She testified that nobody from the group she was sitting with
    appeared to have seen this. Afterward, she approached her friend A.S. and asked
    her to attend the washroom with her. While in the washroom, E.M. disclosed to
    A.S. what had just happened to her. E.M. agreed in cross-examination that A.S.
    made it clear to her that she had not seen what had happened. According to
    E.M., upon the girls return to the classroom, the appellant removed sunglasses
    from A.S.s face and made a comment to her. Later that day, E.M. told another
    friend about the appellant grabbing her buttock. However, E.M. did not tell anyone
    else, including teachers, the principal or her parents about what had happened
    that day.

(ii)

Evidence
    of A.S.

[10]

A.S. indicated
    in her video statement to the police and testified under cross-examination that
    she saw what happened to E.M.. However, there were discrepancies between her
    story and E.M.s. A.S.s evidence was that the touching of E.M.  occurred earlier
    in the day, that it was while E.M. was seated and that the appellant had his
    foot up near where E.M. was seated. In addition, A.S. testified that
    immediately after the touching, E.M. called out to her by name in a relatively
    quiet room and told her what had happened.  Her evidence was that the two girls
    then went to the washroom where she told E.M. that she had seen the appellant
    touch her. A.S. also indicated that the incident involving the appellant
    removing her sunglasses and making a comment to her happened before the
    incident involving E.M.. A.S. claimed quite adamantly that she saw the appellant
    grab the buttock of E.M. and she demonstrated the touch in her video statement
    to the police. A.S. also indicated in her video statement to the police that
    they reported what happened to an educational assistant later the same day.

(b)

May 20th, 2008 Incident

[11]

A week later, on
    May 20th, 2008, the appellant was working as a substitute teacher in a grade 6
    class in the same school. A student in that class alleged that the appellant
    touched her sexually as well.

(i)

Evidence
    of B.N.

[12]

B.N. and A.B.
    were students in the grade six class taught by the appellant on May 20, 2008.
    B.N. indicated that prior to the end of the class she approached the appellant
    in the classroom near the front blackboard and tapped him on the shoulder. He
    turned and put his arm on her shoulder to ask what she wanted, and he slid his
    hand down her back. She told him that she needed to leave a few minutes early
    to help out in another class and she indicated that his hand slipped down to
    my bumand he wouldnt let gountil a couple of guys needed him at the backand
    he took his hand off and went to the back table.  B.N.s evidence was that,
    following the touch, she went back to her work. However, later that day she
    told her friend A.B. that the appellant had touched her and they decided to
    tell their regular teacher when she returned the next day.

(ii)

Evidence
    of A.B.

[13]

In her
    videotaped statement to police and in court, A.B. indicated that she saw the
    appellant put his hand down B.N.s back but did not see him touch her buttocks.
    However, she indicated that immediately after this, B.N. came to the back of
    the room and told her that the appellant had smacked her buttocks and later,
    that he had touched her buttocks. A.B. also testified in cross-examination
    about how at a recess later that day she and B.N., and E.M. and A.S., among
    others, had discussed the incidents from the previous week:

[W]e all got together and discussed it, and thats when we
    decided that we were going to do something about it.

[E.M.], [A.S.], and [B.N.], and me. And I cant remember.

We all discussed what happened to each other and we made a game
    plan and we went and told.

[14]

B.N. and A.B.
    first went to their teacher the next day to report their incident. The
    principal was absent that day. The following day, however, he called all the
    girls down to his office and upon hearing some of what they had to say asked
    them to write down brief statements about what had happened. Subsequent to this,
    the girls individually gave their video statements to the police. The very
    brief handwritten statements were entered as exhibits in the trial, as well as
    a one page typed statement/report prepared and signed by the principal.  The
    video statements given by E.M., A.S., B.N. and A.B. and transcripts of the
    statements were also entered as exhibits in the trial.

(3)

DECISION BELOW

[15]

The trial
    judges decision was delivered orally. He thoroughly summarized the evidence of
    the two complainants, which comprised the majority of the judgment.

[16]

While the trial
    judge described the two complainants evidence at length, he dismissed the
    evidence of the two purported eyewitnesses to the two incidents in relatively
    short order. With respect to the witness A.S., the trial judge acknowledged
    that her version of what transpired differs from [E.M.]s version. He noted
    that:

In her video-taped statement and also in cross-examination,
    [A.S.] tries to answer all the questions put to her; however, her answers
    sometimes do not match the questions.

She mixes her opinions and thoughts about what others are
    experiencing with her own observations. She reflects on what happened in a
    train of thought that is not always chronological. She makes frequent use of
    the word "like" and in doing so, it is unclear from the context
    whether she is using the word to accurately relate, to speculate, to guess, or
    to just provide her best recollection of what she saw and heard. She does not
    always complete her sentences or thoughts. I have no doubt that [A.S.] tried
    her best to provide full and honest answers to the questions put to her;
    however, I found the evidence in her statement and in her cross-examination to be
    of limited probative value.

[17]

With respect to
    the other witness, A.B., the trial judge observed:

In her statement and in her cross-examination, [A.B.] confuses
    times and dates. She cannot remember details. At times she provides one version
    of events and then hesitates and corrects herself or says that she cannot
    remember. She makes references to having flashbacks. I am unable to rely upon
    any of the evidence of [A.B.].

[18]

In his ruling on
    the similar fact evidence, the trial judge referenced
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, summarizing many of the salient principles from
    that leading case. After noting that potential prejudice inherent in the admission
    of similar fact evidence is reduced significantly in a judge alone trial, he
    addressed one of the appellants main concerns at trial:

It is pointed out by the defence that in the circumstances of
    this case there is a significant possibility for collusion. The girls talked
    with each other. They discussed what had happened.

[19]

Without further
    analysis, the trial judge then immediately ruled:

Nevertheless, I am satisfied on the facts of this case that the
    probative value outweighs the prejudicial effect, and that I may consider the
    similar fact evidence of the two counts involving the allegations against
    [B.N.] and [E.M.] as evidence that the acts occurred.

[20]

Then, after
    briefly summarizing the positions of the Crown and defence, his holding was
    entirely set out in the single final paragraph:

Having carefully reviewed the evidence of [E.M.] and [B.N.], in
    particular; and having considered their statements to the police, their
    evidence in court, their cross-examination, and the statements prepared for the
    principal, I am satisfied beyond a reasonable doubt that their version must be
    accepted. I am satisfied beyond a reasonable doubt that Mr. Burnie touched the
    buttocks of [E.M.] and [B.N.]. I am also satisfied beyond a reasonable doubt
    that the touching of their buttocks was for a sexual purpose. Accordingly, I
    find Mr. Burnie guilty on all counts.

[21]

Other than the
    trial judges summary of the evidence of the two complainants, his brief
    dismissal of the evidence of the other witnesses and his ruling on the similar
    fact evidence, this paragraph was the only analysis apparent from his judgment
    on which he based his finding of guilt.

(4)

ISSUES

[22]

The appellant
    raises the following issues on appeal:

1. Did the trial judge subject the
    Crowns case to the scrutiny required to justify a criminal conviction?

2. Did the trial judge give proper
    reasons for accepting the evidence of E.M. and B.N.?

3. Did the trial judge properly assess
    the evidence in accordance with the principles in
R. v. W.(D.)
, [1991]
    1 S.C.R. 742?

4. Should the B.N. and E.M. incidents
    have been admitted against each other as similar acts?

5. Did the trial judge err in
    convicting the appellant on both counts involving E.M. and both counts
    involving B.N.?

6. Did the trial judge err in
    sentencing the appellant?

[23]

The appellant
    subsequently abandoned his sentence appeal. In the analysis below, I will focus
    on the second, third and fourth issues. In my view, the resolution of these
    issues is dispositive of the appeal. In respect of the fifth issue, the
    respondent concedes that the appellant should have been convicted of only one
    count for each incident of sexual touching pursuant to the principle in
R.
    v. Kienapple
, [1975] 1 S.C.R. 729. I agree with the respondents
    concession. However, in light of the disposition I would order, it is not
    necessary for me to address the matter further
.

[24]

The respondent
    argues that the trial judges findings of credibility and reliability are
    factual determinations, which are exclusively within the trier of facts domain.
    As such, these findings attract significant deference from a reviewing court.
    Furthermore, the reasons for judgment are adequate in the circumstances, as the
    trial judge was not required to address every inconsistency and resolve every
    factual detail. Finally, the respondent submits that there was ample basis upon
    which to support the trial judges conclusion.

[25]

The respondent submits
    that this was a relatively simple case. The case stood to be determined on
    whether the Crown witnesses were sufficiently credible and reliable to
    establish the allegations of sexual touching beyond a reasonable doubt. There
    was an ample basis upon which to support the trial judges conclusion.

[26]

The respondent
    further submits that the trial judge did not err in his application of
R.
    v. W.(D.)
, [1991] S.C.R. 741

as the appellant did not testify or call
    a positive defence. Thus, the case stood to be determined at the third step of
W.(D.)
:
    were the Crown witnesses sufficiently credible and reliable to prove the case
    beyond a reasonable doubt?  Accordingly, the respondent argues, the trial judge
    proceeded correctly.

[27]

Finally, the
    respondent submits that the trial judge did not err in considering B.N. and
    E.M.s evidence across their counts. There is no basis to conclude that the
    trial judge erred in the application of the well-established test for the admission
    of similar fact evidence. The trial judge explicitly acknowledged the evidence
    in this case that the complainants discussed what happened and what they ought to
    do about it. However, there was no evidence of actual collusion, or tainting,
    or that the discussions influenced their evidence in any way. In the
    alternative, even if the trial judge erred in failing to determine on a balance
    of probabilities whether the evidence of E.M. and B.N. was tainted by
    collusion, this could not have affected the verdict as credibility was the only
    issue in the trial and the trial judge was clearly satisfied that both
    complainants were credible in and of themselves.

(5)

ANALYSIS

(a)

The Adequacy of the Trial Judges Reasons

[28]

It is a well-established
    legal principle that the reasons a judge gives in a criminal trial without a
    jury fulfill an important function in the trial process and where that function
    goes unperformed, the judgment may be vulnerable to reversal on appeal:
R.
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869.

[29]

Speaking on
    behalf of the Supreme Court in
Sheppard
, Justice Binnie noted, at
    para. 21, that it is a reviewing courts task, not so much to extol the
    virtues of giving full reasons, which no one doubts, but to isolate those
    situations where deficiencies in the trial reasons will justify appellate
    intervention and either an acquittal or a new trial.

[30]

As the court
    laid out in
Sheppard
, at para. 28:

The mandate of the appellate court is to determine the
    correctness of the trial decision, and a functional test requires that the
    trial judge's reasons be sufficient for that purpose. The appeal court itself
    is in the best position to make that determination. The threshold is clearly
    reached, as here, where the appeal court considers itself unable to determine whether
    the decision is vitiated by error. Relevant factors in this case are that (i)
    there are significant inconsistencies or conflicts in the evidence which are
    not addressed in the reasons for judgment, (ii) the confused and contradictory
    evidence relates to a key issue on the appeal, and (iii) the record does not
    otherwise explain the trial judge's decision in a satisfactory manner. Other
    cases, of course, will present different factors. The simple underlying rule is
    that if, in the opinion of the appeal court, the deficiencies in the reasons
    prevent meaningful appellate review of the correctness of the decision, then an
    error of law has been committed.

[31]

However, the
    Court also emphasized, at para. 33, that the absence or inadequacy of reasons
    is not a freestanding ground of appeal:

A more contextual approach is required. The appellant must show
    not only that there is a deficiency in the reasons, but that this deficiency
    has occasioned prejudice to the exercise of his or her legal right to an appeal
    in a criminal case.

[32]

The Court
    formulated three categories of cases in which deficient reasons could occasion
    such prejudice:

1.

Allegation of unreasonable verdict cases;

2.

Allegation of error of law cases; and

3.

Miscarriage of justice cases.

[33]

Upon my review
    of the record, the present case falls under the second category of cases. Under
    this category, the issue is whether, short of an unreasonable verdict, the
    trial judges reasons fail to articulate reasons in relation to key issues. If
    so, the appropriate remedy is to order a new trial. As Justice Binnie described,
    at para. 42, for purposes of appellate review, the duty to give reasons is
    driven by the circumstances of the case rather than abstract notions of
    judicial accountability. Again, he explained, at para. 46:

[W]here the path taken by the trial judge through confused or
    conflicting evidence is not at all apparent, or there are difficult issues of
    law that need to be confronted but which the trial judge has circumnavigated
    without explanation, or where (as here) there are conflicting theories for why
    the trial judge might have decided as he or she did, at least some of which
    would clearly constitute reversible error, the appeal court may in some cases
    consider itself unable to give effect to the statutory right of appeal. In such
    a case, one or other of the parties may question the correctness of the result,
    but will wrongly have been deprived by the absence or inadequacy of reasons of
    the opportunity to have the trial verdict properly scrutinized on appeal. In
    such a case, even if the record discloses evidence that on one view could
    support a reasonable verdict, the deficiencies in the reasons may amount to an
    error of law and justify appellate intervention. It will be for the appeal
    court to determine whether, in a particular case, the deficiency in the reasons
    precludes it from properly carrying out its appellate function. [Emphasis
    removed.]

[34]

Finally, in his
    helpful but non-exhaustive propositions of law, at para. 55, Justice Binnie makes
    two points that are apposite to the present case:

Reasons acquire particular importance when a trial judge is
    called upon toresolve confused and contradictory evidence on a key issue,
    unless the basis of the trial judge's conclusion is apparent from the record,
    even without being articulated.

While it is presumed that judges know the law with which they
    work day in and day out and deal competently with the issues of fact, the
    presumption is of limited relevance. Even learned judges can err in particular
    cases, and it is the correctness of the decision in a particular case that the
    parties are entitled to have reviewed by the appellate court.

[35]

Two issues
    permeate the record in this case. First, there was ample evidence of the
    opportunity for the complainants and witnesses to have colluded. The trial
    judge acknowledged as much when he indicated, albeit in his summary of the
    appellants position on the similar fact application, that [t]he girls talked
    with each other. They discussed what had happened..

[36]

While I accept
    that there was no direct evidence that specific collusion or even a motive to
    collude existed, there was at least the opportunity for the complainants and
    the witnesses to have influenced and contaminated each others independent
    perspectives and recollections of the events through their communication of the
    events with each other, and their interaction leading up to and during their
    revelation of the events to their teacher and the principal. As this court held
    in
R. v.  B.(C.)
(2003), 171 C.C.C. (3d) 159, at para. 40:

Collusion can arise both from a deliberate agreement to concoct
    evidence as well as from communication among witnesses that can have the
    effect, whether consciously or unconsciously, of colouring and tailoring their
    descriptions of the impugned events.

While this by no means necessarily makes the
    complainants or witnesses evidence valueless, the opportunity for collusion
    must nonetheless be adequately addressed in this case.

(b)

The Opportunity for Collusion

[37]

The Supreme Court
    stated in
Handy
, at para. 104, that if collusion is present, it
    destroys the foundation on which admissibility is sought. This is because the
    trial judge cannot assess the objective improbability of coincidence without
    addressing the issue of whether the apparent coincidence is in fact the product
    of collusion:
Handy
, at para. 106.

[38]

In this case, there
    was evidence that E.M. and A.S. were best, best friends and B.N. and A.B.
    were close friends. More importantly, there was evidence of some
    communication among the complainants and witnesses. Therefore, before admitting
    the similar fact evidence, the trial judge was obligated to consider whether
    the Crown had proven on a balance of probabilities that the evidence was not tainted
    by collusion. This requirement is inherent in deciding whether, as a matter of
    law, the evidence has sufficient probative value to overcome the prejudice of
    its admission:
R. v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33,

at
    para. 41. Once he admitted the evidence, the trial judge was required to decide
    what weight, if any, to assign to it. Here, he was the trier of fact. Only once
    he concluded that he should accord the evidence some weight could the trial
    judge use the testimony of one complainant to support the credibility of the
    other complainant.

[39]

This issue was
    addressed by this court in
R. v. F.(J.)

(2003), 177
    C.C.C. (3d) 1 (Ont. C.A.). At para. 86,
Feldman J.A.
noted:

The Supreme Court has recently addressed the seriousness of the
    possibility that evidence has been tainted by collusion in the context of the
    treatment of similar fact evidence. In the cases of
R. v.

Handy
and
R. v.

Shearing
, the court held that before admitting
    similar fact evidence, the trial judge must be satisfied of its reliability and
    exclude it if not satisfied on a balance of probabilities that the evidence is
    not tainted by collusion. Once admitted, the jury must still be warned to
    assess the evidence carefully and to consider whether it can be considered
    reliable given the possibility of deliberate or accidental tainting by
    collusion among the witnesses (
Shearing
at para. 44). [Citations
    omitted.]

[40]

Unfortunately,
    other than the trial judges brief reference that [i]t is pointed out by the
    defence that in the circumstances of this case there is a significant
    possibility for collusion, the trial judge failed to otherwise mention the
    possibility of collusion in his judgment. It could be that he nonetheless
    appropriately considered it in his ultimate decision on the guilt of the
    accused. If he did, the appellant could be assured that the verdict was arrived
    at properly.

[41]

However, it
    could be that the trial judge failed to consider the possibility of collusion
    when he considered the effect of the similar fact evidence in his ultimate
    decision on the guilt of the accused. If he did, there was a reversible error
    of law in his reasoning. As this court also held in
B.(C.)
, when
    similar fact evidence is admitted and there is evidence of the possibility of
    collusion, which falls short of tainting the evidence so as to render it
    inadmissible, a trial judge must nonetheless instruct a jury of their duty to
    consider the possibility of collusion when assessing what effect to give to the
    similar fact evidence that they had heard. (See paras. 42-45.) Likewise, it
    was the duty of the trial judge in this case, as the trier of fact, to instruct
    himself to consider the possibility of collusion in his assessment of what effect
    to give the similar fact evidence in his ultimate decision on the guilt of the
    accused on the whole of the evidence.

[42]

The difficulty
    in this case is that on the reasons given, we cannot know if he did or did not
    do so. As such, on this issue, we are left in the position, in the terms used
    in
Sheppard
, where we cannot be sure of the path taken by the trial
    judge. There is more than one view of how the trial judge may have decided
    guilt and one such view would clearly constitute reversible error.

(c)

Failure to Explain how the Complainants' Version of Events was Accepted

[43]

The second issue
    that permeates the record in this case is the significant conflicting evidence
    between the complainants and the respective witnesses. Clearly, the thrust of
    the appellants strategy throughout his trial was to highlight the
    inconsistencies in the accounts of the incidents, as between the complainants
    and witnesses, as well as internally within the evidence of the complainants
    and witnesses over time.

[44]

In the end, it was also clear the trial judge accepted the
    evidence of the complainants and had significant difficulties with the evidence
    of the witnesses. While he well may have completely rejected the evidence of
    the witness A.B., being unable to rely upon any of [her] evidence, he merely
    indicated that he found the evidence of A.S. to have limited probative value.
    In either case, in his ultimate decision he made no mention whatsoever of the
    significant conflicts between their evidence and the evidence of the
complainants.

[45]

As this court
    made clear in
R. v. R.W.B.
, [2003] O.J. No. 3086 (C.A.), at paras. 2
    and 9, the trial judge need not deal with each and every inconsistency, and is
    in the best position to determine credibility and reliability. This court will
    defer where the trial judge gave adequate consideration to the submissions of
    counsel regarding the frailties of the evidence.

[46]

In this case, however, the trial judge did not conduct
    any analysis of the complainants credibility or reliability at all. Whether he
    scrutinized the reliability of their evidence to the same extent as that given
    by the witnesses A.S. and A.B. is not
clear from his reasons. While he
    ultimately stated that he accepted the complainants version of events beyond a
    reasonable doubt, it is impossible to chart the path he took to that
    conclusion.

[47]

Once again, it
    may be that the trial judge appropriately considered the conflicting and
    sometimes confusing evidence of the witnesses while considering the evidence of
    the complainants. However, on the reasons given it may also be that he gave no
    consideration in his ultimate decision of even the residual probative value
    there may have been at least in the evidence of A.S.. I do not know. In the
    terms used in
Sheppard
, there are significant inconsistencies or
    conflicts in the evidence, which the trial judge has circumvented without
    explanation. While the respondent is correct that the appellant did not testify
    or call a positive defence, the appellant did vigorously challenge the evidence
    by eliciting conflicting evidence that was capable of calling into question the
    credibility and reliability of the evidence of the complainants, the central
    issue in this case. This court recently dealt with the scope of
W.(D.)
in
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197. Blair J.A.,
    speaking for the court, carefully and thoroughly reviewed the proper
    application of
W.(D.)
, and concluded at para. 114:

What I take from a review of all of these authorities is that
    the principles underlying
W.(D.)
are not confined merely to cases
    where an accused testifies and his or her evidence conflicts with that of Crown
    witnesses. They have a broader sweep. Where, on a vital issue, there are
    credibility findings to be made between conflicting evidence called by the
    defence
or arising out of evidence favourable to the defence in the Crown's
    case
, the trial judge must relate the concept of reasonable doubt to those
    credibility findings. [Emphasis added.]

[48]

In fairness to
    the trial judge,
B.D.
was decided after his decision in the present
    case. Nonetheless, in a case in which the main thrust of the defence is
    directed at eliciting conflicting evidence from the complainants and the
    eyewitnesses to the alleged offences, it was incumbent on the trial judge to
    have at least considered whether those conflicts or inconsistencies raised a
    reasonable doubt about the evidence supporting a conviction. From his reasons,
    particularly the culminating paragraph, which is the heart of the decision, it
    is not apparent that he did so. While we might assume he did,
Sheppard
makes it clear that, [e]ven learned judges can err in particular cases, and it
    is the correctness of the decision in a particular case that the parties are
    entitled to have reviewed by the appellate court. In the circumstances of this
    case, the deficiency in the reasons precludes me from properly carrying out this
    appellate function.

(6)

DISPOSITION

[49]

For these
    reasons, I would set aside the convictions and order a new trial. It is within
    the discretion of the Crown to decide whether it is in the interest of justice
    to proceed with a new trial.

Released: JL February 22, 2013

M.
    Tulloch J.A.

I
    agree J.I. Laskin J.A.

I
    agree R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Bryan, 2013
    ONCA 97

DATE: 20130215

DOCKET: C54255

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Bryan

Appellant

Tina Yuen, for the appellant

Cindy-Lynn Afonso, for the respondent

Heard: February 11, 2013

On appeal from the convictions entered on May 9, 2011 by
    Justice J.D. Takach of the Ontario Court of Justice.

ENDORSEMENT

Introduction

[1]

Following a trial by judge alone, the appellant was convicted of
    possession of cocaine for the purpose of trafficking, possession of marihuana
    in an amount not exceeding 30 grams and possession of the proceeds of crime of
    a value not exceeding $5,000.  The trial judge sentenced the appellant to 13
    months imprisonment on each count, concurrent, and imposed various ancillary
    orders.

[2]

The appellant appeals from his convictions on the sole ground that the
    verdicts are unreasonable.  At the conclusion of oral argument on behalf of the
    appellant, this court dismissed the conviction appeal, with reasons to follow.
    These are those reasons.

Discussion

[3]

The appellant argues that the verdicts are unreasonable because they were
    based, in effect, merely on his proximity to concealed drugs (cocaine and
    marihuana) and money discovered by the police in a rental car driven by the
    appellant.  We do not accept this submission.

[4]

We conclude that on the whole of the circumstantial evidence in this
    case, the verdicts are ones that a properly instructed jury, acting judicially,
    could reasonably have rendered.  In particular, on this record, a properly instructed
    jury could reasonably conclude that the appellants guilt was the only rational
    conclusion.  See
R. v. Biniaris
, 2000 SCC 15;
R. v. Beaudry
,
    2007 SCC 5;
R. v. R.P.
(2012), 282 C.C.C. (3d) 435 (S.C.C.).

[5]

The trial judges reasons indicate that he was alive to the required elements
    to establish possession: knowledge of and control over the contraband in
    question.  The only issue in this case was whether the appellant knew of the
    contraband that was present in the centre console and the door compartment on
    the passenger side of the rental car he was driving.  The trial judges reasons
    confirm that he appreciated that suspicion of guilt, by itself, was
    insufficient to establish the appellants knowledge of the drugs and money to
    the requisite criminal standard of proof.

[6]

The appellant did not testify at trial.  In aid of his defence, he
    called one witness  Mustafa Kulom  an admitted drug dealer, who essentially
    testified that the drugs and money seized by the police belonged to him and that
    he had temporarily loaned his rental car to the appellant  a man he barely
    knew  while, unbeknownst to the appellant, the drugs and money were in the vehicle.

[7]

For cogent reasons that he detailed, the trial judge rejected Mr.
    Kuloms explanation for the presence of the contraband in the rental car when
    the appellant drove it and his claim that the appellant had no connection to
    the contraband.  We see no error in the trial judges credibility-based
    assessment of Mr. Kuloms evidence.  It was for the trial judge to determine
    how much credit, if any, should be given to Mr. Kuloms version of events.

[8]

As the trial judge observed, on rejection of the critical features of
    Mr. Kuloms testimony, there was no evidence before the court as to why the
    accused was in a motor vehicle possessed with drugs and proceeds of crime.

[9]

Having rejected the salient aspects of Mr. Kuloms evidence and having
    concluded that it did not raise a reasonable doubt, the trial judge reviewed
    the evidence relied on by the Crown, concluding that it admit[ted] of nothing
    other than the culpability of the accused and that it was inconsistent with
    any other finding.  The issue, therefore, is whether the evidence that the
    trial judge did accept grounds his holding that knowledge by the appellant of
    the contraband was the only rational conclusion in all the circumstances.

[10]

In
    our view, the trial judges conclusion is firmly anchored in the evidentiary
    record.  The evidence at trial established a constellation of factors that,
    taken together, support the inference of knowledge by the appellant of the
    presence of drugs and cash in the car he was driving.

[11]

In
    addition to the factors detailed at paragraph 30 of his reasons, the trial
    judge observed that the quantity and value of the seized drugs made it
    inconceivable that the drugs would be casually entrusted, by an admitted drug
    dealer, to someone who did not know what was in the vehicle.  We agree.

[12]

Moreover,
    when the car was in fact stopped, the appellant was using his cell phone, which
    then rang continuously during the interval when he was detained by the police
    at the roadside (10 missed calls were recorded).  This is consistent with
    individuals seeking to engage in drug transactions.  In addition, two cell
    phone charger cords were clearly visible in the vehicle, and accessible to the
    appellant, on the centre console next to the drivers seat.  It was in this
    console that the police discovered 35 grams of cocaine (with a value of
    approximately $1,500 - $2,000), a baggie of marihuana, $775 in cash and two
    more cell phones.

[13]

Viewed
    cumulatively, we are persuaded that these factors were sufficient to support
    the inference of the appellants knowledge of the contraband drawn by the trial
    judge and his holding that the only rational conclusion was that the appellant,
    in some fashion, was a party to Kuloms activities.  At the end of the day,
    while the Crowns case against the appellant was not overwhelming, there was an
    evidentiary foundation to support the convictions. In these circumstances, it
    cannot be said that the verdicts are unreasonable.

Disposition

[14]

Accordingly,
    the conviction appeal is dismissed.  Counsel agree and jointly submit that the
    sentence imposed by the trial judge on the conviction for possession of
    marihuana (13 months imprisonment, concurrent to the sentences imposed on the
    other counts) should be varied to six months imprisonment, concurrent, to
    convert the sentence imposed on this count to a legal sentence.  We agree and
    so order.

E.A. Cronk J.A.

G.J. Epstein J.A.

P. Lauwers J.A.