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    that could identify the complainant or a witness shall not be published in any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. Marshall, 2015 ONCA 518

DATE: 20150709

DOCKET: C57220

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Marshall

Appellant

Alan D. Gold and Melanie Webb, for the appellant

David Finley, for the respondent

Heard: July 6, 2015

On appeal from the conviction entered on April 29, 2013
    and the sentence imposed on July 3, 2013 by Justice R. Reid of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of one count of sexual assault and sentenced
    to eight months imprisonment (less six days pretrial custody.)  He appeals his
    conviction and sentence and seeks to introduce fresh evidence.

[2]

The appellant is a pediatrician whose practice focused on children with
    behavioural problems. He was charged with 32 counts of sexual assault and sexual
    interference. Twenty-nine of those counts were based on allegations involving
    20 of his former patients.  They were all young boys treated by the appellant
    prior to or during puberty.  The remaining three counts involved two
    complainants who were not patients.

[3]

Following a detailed analysis, the trial judge acquitted the appellant
    of all counts relating to the patients, and of two counts relating to one of
    the non-patients. The trial judge convicted the appellant of sexual assault
    with respect to one count relating to the other non-patient complainant, PM.

[4]

PM met the appellant when he was a grade nine high school athlete.  The
    appellant was involved with students as a medical doctor and a wrestling coach.
    The appellant also took part in a Bible study group for students at the school.
    PM had a challenging home life. At the age of 15, he was living on his own in a
    boarding house.  The appellant befriended him, gave him food, gifts, football
    cleats, a camping trip and regularly invited him and his friends to his home.

[5]

PM testified about three events which gave rise to the allegations in
    question:  one in the kitchen; another involving his sore back; and a third
    event on the couch.  The appellant also testified about each incident.

[6]

The kitchen incident happened at the appellants home.  PM was 16 years
    old. He testified that he was standing in the doorway to the kitchen; the
    appellant came to him from behind, slid his hand under his shorts and grabbed
    his genitals.  The appellant testified that PM had made a smart aleck remark
    and he grabbed him by the waist as if to tackle him.  This type of rough-play
    was routine in the appellants home. When PM accused him of touching his
    genitals, the appellant said he told him he was sorry. The appellant testified
    that he apologized, not because he touched his genitals, but just because he
    wanted the matter resolved. He denied touching PMs genitals.

[7]

The back incident occurred later when PM was 18 years old.  PM asked the
    appellant to look at his sore back. He testified that the appellant asked him
    to take off his shirt and then to bend over in front of him.  He said the
    appellant rubbed his crotch against PMs behind. The appellant testified that
    he might have bumped into PM but there was no grinding activity.

[8]

The couch incident, according to PM, occurred when he was alone in the
    appellants house sitting on the couch with him. He said that the appellant
    hugged him and then lay on top of him.   PM managed to break free and ran out.
    PM testified that the appellant said that he was just hugging him and I am not
    trying to fuck you yet.  The appellant denied these events.

[9]

The trial judge reviewed this evidence and said this:

Once again, I have applied the
R. v. W. (D.)
analysis.
    I do not find [the appellants] evidence convincing as to his version of any of
    the three incidents. There appears to have been a pattern of behaviour in the
    incidents described. [The appellants] explanation for any of the three
    incidents does

not leave me with a reasonable doubt nor when I
    consider the evidence as a whole relating to each of the three incidents am I
    left with a reasonable doubt as to the offence charged.

The Conviction Appeal

[10]

The
    appellant raises several grounds of appeal.  They can be grouped into five
    general categories:  (1) the trial judges reasons were insufficient to support
    a conviction; (2) the trial judge misapplied the
WD
analysis; (3) the
    trial judge misapprehended the evidence; (4) the trial judge improperly applied
    similar fact reasoning; and (5) the trial judge did not adequately assess the
    frailties of PMs evidence.  We address each of these issues.

[11]

The
    appellant submits that the trial judges reasons are insufficient because they
    do not make it clear which of the three incidents formed the basis for the
    conviction.  We do not agree.  A fair reading of the trial judges reasons
    demonstrates that he rejected the evidence of the appellant and accepted the
    evidence of PM in connection with all three events.  Count 20 of the indictment
    does not particularize the circumstances of the sexual assault. Once the trial
    judge was satisfied beyond a reasonable doubt that the three events took place
    as described by PM, the elements of the offence were made out.

[12]

The appellant submits that the trial judge erred in omitting
    the third step of
R. v. W. (D).
We do not agree. The trial judge  who
    is presumed to know the law  referred to
WD
more than once in the
    reasons at large.  The trial judge rejected the appellants testimony and
    indicated that the evidence in its entirety did not raise a reasonable doubt.
    He therefore determined that the evidence of the appellant did not raise a
    reasonable doubt and that he was satisfied on the whole of the evidence that
    the Crowns case had been established beyond a reasonable doubt.

[13]

The
    appellant submits that the trial judge misapprehended the evidence of the
    apology given by the appellant to PM after the kitchen incident. The trial
    judge found it strange that he would apologize for an event that did not take
    place. The appellant submits that he was not apologizing for his conduct, but
    rather expressing regret that the complainant thought it was inappropriate. He
    testified that he was also trying to end the issue.  It was open to the trial
    judge to be sceptical of the appellants testimony in connection with an
    apology.

[14]

The
    appellant refers to the trial judges statement that There appears to have
    been a pattern of behaviour in the incidents described.  It is submitted that
    he applied impermissible similar fact reasoning.  The Crown submits that the
    pattern referred to is in regard to the appellants explanation for the events,
    not a pattern of behaviour with respect to the allegations.  We accept that
    there are two ways of reading the passage referred to.  Even if we agreed with
    the appellants interpretation, we would apply the curative proviso of section
    686(1) (b) (iv) of the
Criminal Code.
The alleged perpetrator and
    victim are the same in each of the incidents.  A similar fact application would
    most certainly have been allowed.

[15]

The
    appellant submits that the trial judge did not adequately assess the frailties
    of PMs testimony and was unfairly critical of the appellant.  In particular,
    he takes issue with:  the trial judges minimization of PMs description of the
    order of events; the change in PMs testimony about whether the appellant had
    an erection during the back incident; the trial judges views as to the
    appellants account of PM seeking medical help for his back; the trial judges
    treatment of the blood test ordered by the appellant; and the trial judges
    description of the appellants evidence as more vague.  The appellant is
    seeking to have this court retry the factual findings made by the trial judge.
    There was an evidentiary basis for each finding he made.  We would not give
    effect to this ground.

Fresh evidence application

[16]

The
    appellant seeks to admit evidence showing that PM suffered from PTSD, anxiety
    and depression following his return from active military service in in 2010 and
    indulged in alcohol and cocaine to cope.  The appellant also seeks to admit
    evidence that, in 2006, PM had been charged with two counts of assault causing
    bodily harm and two counts of assault, but a stay of proceedings was entered
    after a co-accused pleaded guilty.

[17]

We
    do not admit the fresh evidence.

[18]

The
    principles governing the admissibility of fresh evidence on appeal are outlined
    in
R. v. Palmer
, [1980] 1 S.C.R. 759 at p. 775.
    The applicant must satisfy four criteria: (i) the evidence could not have
    been adduced at trial; (ii) the evidence must be relevant in that it bears on a
    decisive or potentially decisive issue; (iii) the evidence must be reasonably
    capable of belief; and (iv) the evidence must be such that, if believed, it
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result.

[19]

The
    proposed evidence does not meet this test. It was available at the time of
    trial in that it was posted on the internet. It was known at the time of trial
    that PM had served in a particularly dangerous tour of duty.  He was not
    questioned about the effects of this activity, about whether he had counselling
    or whether he had difficulties in this regard.  The proposed evidence does not
    bear on a potentially decisive issue in the case: as the Crown points out, the
    divergence in the testimony of the appellant and of PM is extraordinarily
    minor. We note that the stay of the criminal charge would be, after a year,
    deemed to have not been laid. The fresh evidence would be unlikely to have
    affected the outcome.

Sentence Appeal

[20]

The
    appellant submits that the trial judge erred in not granting a conditional
    sentence. The submissions of the appellant with respect to section 11 (i) of
    the
Charter
are academic.  The sentencing judge found that a
    conditional sentence was available but declined the appellants request.

[21]

We
    see no reason to interfere with the trial judges exercise of discretion in
    this regard. The appellant has failed to identify an error in principle, or to
    demonstrate that the sentence is demonstrably unfit. The eight-month custodial
    sentence was not demonstrably unfit.  We note that defence counsel submitted
    that six-nine months in custody would be reasonable.

Summary

[22]

The
    conviction appeal is dismissed.  Leave is granted to appeal the sentence, but
    the sentence appeal is dismissed.

G.R. Strathy
    C.J.O.

J.C. MacPherson
    J.A.

M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIlmoyle, 2015 ONCA 505

DATE: 20150706

DOCKET: C58517

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey McIlmoyle

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Eric Siebenmorgen, for the respondent

Heard and released orally: July 2, 2015

On appeal from the convictions entered on May 24, 2013
    and the sentence imposed on November 7, 2013 by Justice Gregory M. Mulligan of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

After a judge alone trial in the Superior Court of Justice, Jeffrey
    McIlmoyle was convicted of sexual exploitation and mischief. He was sentenced
    to a term of imprisonment of 17 months, to be followed by a period of probation
    of two years. He appeals his conviction of mischief and seeks leave to appeal
    the carceral portion of the sentence imposed upon him.

[2]

On the appeal from the conviction of mischief, the appellant contends
    that the conviction is unreasonable.

[3]

The circumstances of the offence are somewhat unusual.

[4]

The appellant and his common-law wife went to a party. The appellant had
    too much to drink. He and his wife argued. The appellant decided to leave the
    party and walk home. It was January and cold. The walk home involved a distance
    that would take about ten minutes to drive.

[5]

The appellants common-law wife called her daughter at home and
    persuaded her to drive down the street, pick up the appellant and drive him
    home. Despite other plans and a somewhat toxic relationship with the appellant,
    the daughter, Kali, agreed to do so.

[6]

When Kali located the appellant, walking alone on the side of the road,
    she stopped her car and asked him to get inside. He refused. She explained that
    her mother had told her to pick him up. The appellant got into the car and Kali
    began the drive home. In the car, Kali and the appellant argued. He told her to
    stop the car. He wanted to get out. She refused to do so, rather, continued the
    drive, avoiding traffic lights and signed stops.

[7]

About a minute away from home, the appellant reached over to the
    drivers side of the vehicle and pulled up on the parking brake. The car spun
    out and came to rest at the side of the road. The appellant got out, pushed the
    car back onto the travelled portion of the road and continued his walk home.
    Neither Kali nor the appellant were injured. The car was not damaged.

[8]

The appellant says that the conviction of mischief is unreasonable
    because Kali was not in lawful use of her property  the motor vehicle  when
    the alleged offence occurred. She was not operating the vehicle lawfully
    because she was unlawfully confining the appellant in her car, refusing to
    accede to his requests to leave the vehicle.

[9]

We would not give effect to this ground of appeal. In our view, there
    was an adequate evidentiary basis upon which the trial judge could find that
    Kali was lawfully operating her motor vehicle at the time the appellant
    interfered with her operation of it by pulling the parking brake.

[10]

The
    appellant voluntarily entered the vehicle, well aware of Kalis intention to
    drive him home. Following her mothers instructions, her purpose never changed.
    It is worth reminding that the offence of unlawful confinement, said to be the
    vitiating element here, requires that the confinement be for a significant period
    of time: see,
R. v. Gratton
(1985), 18 C.C.C. (3d) 462 (Ont. C.A.).

[11]

It
    was open to the trial judge to conclude that Crown counsel had negated this
    offence, and thus established lawful operation, on the facts of this case. It
    is also arguable, though it was not advanced at trial, that Kali was under a
    legal duty to continue her journey home because of the provisions of s. 217 of
    the
Criminal Code
and thus was not acting unlawfully in doing so.

[12]

In
    the result, the appeal from conviction on the charge of mischief is dismissed.

[13]

As
    to sentence, it is contended that the sentence on the mischief conviction,
    while properly consecutive to the sentence for sexual exploitation, reflects
    error. It should not have been a custodial term and was imposed by the
    sentencing judge without any analysis.

[14]

We
    agree that the usual deference due to a sentencing judges determination is not
    owed to the sentence on the mischief conviction. That said, we are of the view
    that the cumulative sentence imposed reflects no error in principle and falls
    within the range of sentence appropriate for these offences and offender.

[15]

The
    sexual exploitation offence involved progressively more invasive behaviour
    towards a vulnerable complainant and has had a profound effect upon her. This
    offence involved a breach of trust and an abuse of authority. The reference to
    lack of insight was not misplaced or accorded undue weight in the determination
    of sentence. The trial judges reference to the commission of the offence when
    others were knowingly absent for extended periods was appropriate in this case
    because the appellant took advantage of periods of increased vulnerability on
    the part of the complainant.

[16]

In
    the result, although we would admit the fresh evidence and grant leave to
    appeal sentence, we would dismiss the appeal from sentence.

David
    Watt J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE :
R. c. Menard, 2015 ONCA 512

DATE: 20150708

DOSSIER: C55647

La juge en chef adjointe Hoy et
    les juges Sharpe et Benotto

ENTRE

Sa Majesté la Reine

Intimée

et

Erick Menard

Appelant

Erick Menard, en personne

Avocat de service, Russell Silverstein

Michael Kelly, pour lintimée

Date
    de laudience : le 22 juin 2015

En appel de la condamnation
    prononcée le 22 février 2012 et de la peine imposée le 31 mai 2012 par le juge
    R. Scott de la Cour supérieure de justice.

INSCRIPTION

[1]

Lappelant interjette appel de sa condamnation pour
    conduite dangereuse dun véhicule à moteur causant ainsi la mort, et demande
    permission dinterjeter appel de la peine imposée : deux ans de prison, auxquelles
    sajoute une ordonnance de probation de 3 ans.

Condamnation

Mens Rea

[2]

Malgré la plaidoirie habile de M. Silverstein,
    nous ne sommes pas convaincus que le juge de première instance a erré en droit
    ou que ses motifs pour la condamnation sont insuffisants. Notamment, nous
    nacceptons pas la prétention que le juge de première instance a erré en ce qui
    concerne lélément moral requis pour ce crime.

[3]

Le juge de première instance a admis la preuve
    des témoins décrivant les circonstances de laccident fatal. Il a constaté que
    lappelant conduisait à une vitesse excessive. Sa voiture a quitté la route pour
    se trouver partiellement sur le gazon dà côté. Lempreinte du pneu de la
    voiture était sur le gazon. La voiture de lappelant a heurté la victime, qui
    avait un pied sur le gazon et un pied sur la route. Lappelant connaissait bien
    la route et le tournant dangereux et il ny avait aucune indication que lappelant
    a essayé de freiner pour éviter la victime. La météo et les conditions
    routières étaient bonnes. Lappelant a exercé son droit de ne pas témoigner et aucune
    preuve dune explication de laccident qui innocenterait laccusé na été
    présentée.

[4]

Le juge de première instance a alors conclu que
    la poursuite a établi les éléments essentiels de linfraction reprochée.

[5]

Lanalyse du juge de première instance est
    conforme avec la décision de la Cour Suprême du Canada dans
R. c. Beatty
,
    2008 CSC 5, [2008] 1 R.S.C. 49. La juge Charon, pour la majorité, explique
    lélément moral du crime de conduite dangereuse, au para. 48 :

[] bien que la preuve de la
mens rea
subjective
    soit clairement suffisante, elle nest pas essentielle.  Dans le cas
    dinfractions de négligence comme celle qui nous intéresse, le fait de
    commettre lacte interdit, en labsence de létat mental de diligence
    approprié, peut en effet suffire pour constituer la faute requise.  On
    détermine la présence dune
mens rea
objective en appréciant
    le comportement dangereux par rapport à la norme que respecterait une personne
    raisonnablement prudente.  Si le comportement dangereux constitue un
    « écart marqué » par rapport à cette norme, linfraction sera
    établie.

[6]

À notre avis, si on considère les motifs du juge
    globalement, on voit quil explique précisément pourquoi il a constaté que la
    poursuite avait établi au-delà de tout doute raisonnable lélément moral de
    linfraction, tel que défini par la Cour Suprême dans larrêt
Beatty
.
    Il avait raison de considérer lélément moral dune façon objective et,
    comme dit
Beatty
au para. 51 : « la question de la
mens
    rea
est intimement liée à celle de savoir si, considérée
    objectivement, la façon de conduire [] constitue un écart marqué par rapport à
    la norme ».  Vu la preuve et les circonstances de cet accident, sa conclusion
    que le standard requis a été établi et que la façon de conduire de lappelant a
    constitué un écart marqué par rapport à la norme nous semble plus ou moins
    inévitable.

[7]

Nous rejetons ce moyen dappel.

Droits linguistiques

[8]

Lappelant se plaint de ne pas avoir eu un
    procès en français ou bilingue. Or, bien avant le procès, le 11 juillet 2012 à
    laudience de fixation du rôle, la question de la langue du procès a été soulevée.
    Lagent de lavocat anglophone choisi par lappelant a informé le juge que
    lappelant ne voulait pas un procès en français, mais quil demande simplement
    le service dun interprète. Cette demande a été respectée pendant le procès.

[9]

Ce moyen dappel est donc rejeté aussi.

Peine

[10]

Le seul moyen de lappel relatif à la peine que
    lappelant fait valoir devant nous est que le juge a erré en imposant la
    condition de probation suivante :

Not to be found in the County of Prince Edward, except where
    necessary to remove any items you may have stored there.

[11]

Cette condition a été imposée par le juge parce
    que la résidence de lappelant est à côté de la résidence de la famille de la
    victime.

[12]

M. Silverstein plaide que cette condition est une
    forme de bannissement qui ne peut être justifiée.

[13]

Larticle 732.1(3)(h) du
Code criminel
donne
    au juge le pouvoir dimposer des conditions « raisonnables que le tribunal
    considère souhaitables [] pour assurer la protection de la société et
    faciliter la réinsertion du délinquant ». Il est rare quune condition de
    bannissement soit raisonnable :
R. v. Rowe
(2006), 212 C.C.C.
    (3d) 254 (Ont. C.A.).

[14]

Or, vu les représentations faites par lavocat
    de lappelant au moment où la question des conditions appropriées a été discutée,
    ce moyen dappel doit être rejeté. À la question de savoir sil ny aurait pas
    dobjection aux conditions fixées, cest à dire que lappelant nirait pas sur
    la propriété, ni nhabiterait, ni ne circulerait dans le Canton, la réponse a
    été  « absolutely not, no problem ». Puis le juge a demandé si
    lappelant avait lintention de retourner à  « Prince Edward County
    ever again », la réponse a été «absolutely not ».

[15]

Bien que les circonstances dans lesquelles une
    telle condition peut être imposée soient rares, cette cour ne serait pas justifiée
    dintervenir vu la position prise par lappelant devant le juge de première
    instance.

[16]

Nous accordons permission dinterjeter appel de la
    peine, mais lappel sur la peine est rejeté.

« Alexandra
    Hoy j.c.a.o. »

« Robert J. Sharpe
    j.c.a. »

« M.L. Benotto
    j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nwagwu,
    2015 ONCA 526

DATE: 20150713

DOCKET: C57022

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chibuike Alen Nwagwu

Appellant

Heather Pringle, for the appellant, on the conviction
    appeal

Louis P. Strezos and Melissa Austen, duty counsel on
    behalf of the appellant, on the sentence appeal

The appellant, Chibuike Alen Nwagwu, appearing in person
    by video conference

Christine L. Tier, for the respondent

Heard: July 8, 2015

On appeal from the conviction entered on May 1, 2013 and
    the sentence imposed on May 2, 2013 by Justice Phil Downes of the Ontario Court
    of Justice.

By the Court:

[1]

The appellant was convicted of carrying a concealed weapon and
    possession of a weapon for a dangerous purpose. He allegedly deposited a
    shank in a fellow inmates pocket at a detention centre. He appeals his
    conviction and his sentence of 18 months concurrent on each offence,
    consecutive to the sentence he was serving.

[2]

The sole ground of the conviction appeal is the alleged incompetence of
    counsel. The court made an order pursuant to s. 684 of the
Code

to assist the appellant in advancing
    this ground of appeal. The appellant brings a fresh evidence application in
    support of his appeal.

[3]

The appellant pleaded not guilty at trial. As the trial judge noted, the
    Crowns case rested entirely on the evidence of one witness, a correctional
    officer, who swore she saw the appellant place the shank in the pocket of the
    other inmate, Sarbu.

[4]

The trial judge found the officers evidence credible and reliable. He
    rejected the assertion that the absence of video evidence went against the
    Crown, noting that there was no evidence that the closed-circuit cameras would
    have captured the transfer of the shank.  Nor was he prepared to draw an
    adverse inference from the Crowns failure to call Sarbu.

[5]

The appellant makes three assertions of incompetence: (a) counsels
    failure to pursue disclosure of video recordings of the events at the detention
    centre or to bring a lost evidence application on learning that the video had
    been destroyed; (b) counsels failure to seek an adjournment of the trial, when
    the appellant requested that Sarbu be called as a witness; and (c) counsels
    failure to call the appellant to testify.

[6]

A claim for ineffective assistance of counsel has a performance
    component and a prejudice component:
R. v. B (L)
, 2014 ONCA 748.
    Before considering the performance component, the court must consider prejudice
     whether there has been a miscarriage of justice as a result of an unreliable
    verdict or procedural unfairness. The appellant says the verdict is unreliable.

[7]

Unreliability of the verdict is made out where the appellant can
    establish that there is a reasonable probability that the verdict would have
    been different had he received effective legal representation:
R. v.
    Joanisse
, [1995] O.J. No. 2883 at para. 80 (O.C.A.). In
R. v. Dunbar
,
    2007 ONCA 840 at para. 23, Doherty J.A. said that [a] reasonable probability
    is a probability that is sufficiently strong to undermine the appellate courts
    confidence in the validity of the verdict.

[8]

The appellant has not established a reasonable probability that the
    verdict would have been different had the evidence been adduced. As the trial
    judge noted, there was no evidence that a video recording device would have
    captured the transaction. Nor is there any such evidence before us. In the
    absence of that evidence, and in view of the appellants delay in requesting
    production of the video, it is unlikely that a lost evidence application would
    have been successful.

[9]

It would be a matter of pure speculation to conclude that Sarbus evidence
    would have probably affected the outcome of the proceeding. There is no
    evidence that it would have.

[10]

The
    appellant asserts that he did not testify because he was coerced by his
    counsel. Trial counsel said that the decision not to call him was a tactical one,
    based on his experience with the appellant as a witness in a previous case, and
    that the appellant accepted his advice.

[11]

We
    make several observations, some of which are reflected in the observations of
    Doherty J.A. in
R. v. Archer
, [2005] O.J. No. 4348 (C.A.) at paras.
    139 to 142. First, the appellant bears the burden of establishing that his own
    lawyer denied him his constitutional right to testify in his own defence. In
    determining whether the appellant has met this burden, the court is entitled to
    consider the presumption of competence of counsel.

[12]

Second,
    the appellant has a strong motive to fabricate this claim. Put more generously,
    time and reflection may have caused him to persuade himself that counsels
    strong advice amounted to coercion.

[13]

Third,
    in reviewing the transcripts of the appellants appearances when he was
    self-represented, and the transcript of his cross-examination on his affidavit
    in support of his fresh evidence application, it is obvious that the appellant
    knows his way around a courtroom and is well-informed of his legal rights. The
    record establishes that he was an active participant in the proceedings. This,
    together with his long-standing relationship with counsel, which continued even
    after his conviction in this matter, causes us to be highly sceptical of his
    version of events.

[14]

The
    circumstances support trial counsels evidence that the appellants initial
    instructions were that he wished to plead guilty. The instructions changed shortly
    before trial, when counsel was instructed to put the Crown to the proof of its
    case and to cross-examine the correctional officer about the institutional
    protocols. The idea of Sarbu testifying was raised in the course of the trial
    and the appellant accepted counsels advice that it would not assist him to
    pursue the issue. Finally, the evidence supports the conclusion that, in view
    of his previous performance in the witness box, counsel recommended against
    testifying and the appellant accepted his recommendation.

[15]

Counsel
    performed as instructed and conducted what the trial judge described as a
    skillful and vigorous cross-examination of the correctional officer. We are
    not persuaded that counsel coerced the appellant not to testify or otherwise
    ignored his instructions.

[16]

Accordingly,
    the appellant has not established that there is a reasonable probability that
    the verdict would have been different had he received effective legal
    representation.

[17]

As
    there is no prejudice, it is unnecessary to consider the performance component.

[18]

For
    these reasons, while we admit the appellants fresh evidence in spite of its
    lack of ultimate credibility, the evidence does not undermine the reliability
    of the verdict and we are not satisfied there was a miscarriage of justice.
    The conviction appeal is dismissed.

[19]

The
    sentence appeal was pursued as an inmate appeal, with the assistance of duty
    counsel.

[20]

The
    trial judge noted that the appellants criminal record, much of which involved
    violent crime, was horrendous. He had spent a good part of his adult life in custody.
    At the time of this offence he was serving a nine and a half year sentence for
    firearms offences. He had a previous record of the same offence, committed in
    similar circumstances.

[21]

The
    appellant submits the trial judge failed to consider the totality principle.  The
    sentence he imposed, together with the sentence being served at the time of the
    offence, resulted in an eleven year sentence, which the appellant describes as
    crushing. The totality principle applies where part of the total term of incarceration
    includes a pre-existing sentence:
R. v. Parry
, 2012 ONCA 171 at para.
    18. He submits that a sentence of eight to twelve months concurrent would be
    appropriate, having regard to the appellants age, potential and other
    circumstances.

[22]

In
    our view, the 18 month sentence was fit, particularly in view the appellants
    record, even when the totality principle is taken into account.

[23]

We
    therefore dismiss the sentence appeal.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M.L. Benotto J.A.

Released: July 13, 2015


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Owen, 2015 ONCA 547

DATE: 20150722

DOCKET: C58992

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Owen

Appellant

Robert B. Carew, for the appellant

Jason A. Gorda, for the respondent

Heard: March 17, 2015

On appeal from the conviction entered by Justice John
    McMunagle of the Superior Court of Justice, sitting with a jury, on March 1,
    2013, and from the sentence imposed by Justice Lynn D. Ratushny of the Superior
    Court of Justice on March 17, 2014, with reasons reported at 2014 ONSC 748.

ENDORSEMENT

[1]

Following the release of our decision in this matter, the parties
    presented submissions as to the proposed terms for the conditional sentence and
    probation. The court has reviewed those submissions and has determined as
    follows.

[2]

The conditional sentence should be on the
    following terms:

1.

The appellant shall be subject to all of the following statutory conditions
    prescribed by s. 742.3(1) of the Code, namely, that the accused shall:

(a)

keep the peace and be of good behaviour;

(b)

appear before the court when required to do so by the court;

(c)

report to a supervisor within two working days, or such longer period as
    the court directs, after the making of the conditional sentence order, and
    thereafter, when required by the supervisor and in the manner directed by the
    supervisor;

(d)

remain within the jurisdiction of the court unless written permission to
    go outside those areas is obtained from the court or the supervisor; and

(e)

notify the court or the supervisor in advance of any change of name or
    address, and promptly notify the court or the supervisor of any change of
    employment or occupation.

2.

The following terms should also apply for the entire period of the
    conditional sentence:

(a)

reside at an address approved of by the supervisor;

(b)

have no contact or communication in any way directly or indirectly, with
    Pamela Owen-Lafrance or John Lafrance, except through counsel, for court
    purposes, or with their prior written, orally revocable consent filed with the
    supervisor;

3.

For the first eight months of the conditional sentence be under House
    Arrest, subject to the following exceptions:

(a)

between the hours of 1:00 p.m. and 5:00 p.m. each Saturday and 7:00 p.m.
    to 9:00 p.m. each Wednesday to obtain necessities and attend to personal
    matters;

(b)

pre-arranged medical or dental appointments, meetings with his
    supervisor, or required court appearances;

(c)

medical emergencies for himself, wife or child of the marriage;

(d)

religious services;

(e)

for the purposes of going directly to, from and while at work. Work
    hours and schedule to be provided to and approved by the supervisor in advance;
    and

(f)

with the permission of the supervisor.

4.

For the remainder of the conditional sentence, that he be subject to a
    curfew of 10:00 p.m. to 6:00 a.m., with the following exceptions:

(a)

medical emergencies for himself, wife or child of the marriage;

(b)

for the purposes of going directly to, from and while at work. Work
    hours and schedule to be provided and approved by the supervisor in advance;
    and

(c)

written permission of the supervisor.

[3]

The terms of the probation should be as follows:

5.

For the one year period of probation, the appellant be subject to the
    following terms:

(a)

keep the peace and be of good behaviour;

(b)

appear before the court when required to do so by the court;

(c)

notify the court or the probation officer in advance of any change of
    name or address, and promptly notify the court or probation officer of any
    change of employment or occupation;

(d)

within two days of completion of the appellant's conditional sentence,
    report to a probation officer and thereafter as required; and

(e)

have no contact or communication in any way directly or indirectly, with
    Pamela Owen-Lafrance or John Lafrance, except through counsel, for court
    purposes, or with their prior written, orally revocable consent filed with the
    probation officer.

[4]

The appellant is given credit for having served four months of his
    original 18 months sentence. As a result the remaining sentence is 14 months
    subject to there being additional credit since surrendering prior to the
    release of this courts judgement in this case.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

Paul Rouleau 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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Perkins, 2015 ONCA 521

DATE: 20150710

DOCKET: C57985

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Perkins

Appellant

Dirk Derstine and Ariel Herscovitch, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: July 8, 2015

On appeal from the conviction entered on May 8, 2013 and
    the sentence imposed on July 26, 2013 by Justice David Salmers of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by Salmers J. of the Superior Court
    of Justice for sexual assault, voyeurism, and two counts of breach of
    probation. He also appeals his global sentence of six years for these offences.

[2]

The charges against the appellant arose from an incident involving the
    appellant and his then sexual partner. On the day in question, they had sexual
    intercourse three times. It is common ground that the first and third times
    were consensual. However, criminal charges were laid with respect to the second
    episode of sexual intercourse. The Crown contended that the appellant choked
    the complainant and had sexual intercourse with her while she was unconscious
    and videotaped the sexual activity without her knowledge. The trial judge
    decided that these offences were made out and convicted the appellant.

Conviction

[3]

The appellant contends that the trial judge misapprehended the evidence
    in several respects, including his failure to recognize that the complainants
    testimony at the preliminary inquiry was inconsistent with her testimony at
    trial.

[4]

We do not accept this submission. The test for determining when a
    misapprehension of evidence by a trial judge should result in a new trial is a
    stringent standard: see
R. v. Bains
, 2012 ONCA 305, at paras. 11-15.

[5]

It is true that in some respects the complainants testimony at the
    trial differed from her testimony at the preliminary inquiry. For example, at
    the preliminary inquiry the complainant testified that she engaged in no
    discussion with the appellant immediately after the choking incident. At trial,
    she testified that they did talk about it, with her asking why did you do
    that? and him replying I dont know.

[6]

However, we do not think that this isolated example is sufficient to
    overturn the trial judges findings. There were only three witnesses at this
    trial  the complainant, the appellant, and the appellants ex-girlfriend,
    Alexandra Mutton (who was a strong Crown witness). The trial judge discussed
    the credibility of all three witnesses in considerable detail. He stated that
    [t]here are reasons that cause concern with the credibility of each witness in
    this case, and the reliability of their testimony. After reviewing their
    testimony and the problems with it, the trial judge concluded that I found
    [the complainants] testimony about the choking/filming incident to be very
    credible and reliable. In similar fashion, he concluded that I found Ms.
    Mutton to be very credible and reliable in her testimony about what Mr. Perkins
    told her about the choking/filming incident.

[7]

In the end, the trial judge was entitled to accept the testimony of the
    complainant and Ms. Mutton, confirmed in important respects by the appellants
    own testimony. We do not see any material misapprehension of evidence in his
    reasons.

[8]

The appellant submits that the trial judge violated the rule against
    oath helping by saying: With respect to the choking/filing incident, [the
    complainants] credibility is also enhanced by the consistency of her testimony
    about what occurred that night.

[9]

We disagree. The core of the defence at trial was a vigorous attack on
    the complainants credibility based on inconsistencies between her testimony at
    trial and her prior statements. In this context, points of consistency on
    essential aspects of the allegations are relevant to the credibility and
    reliability assessment of a complainants evidence: see
R. v. L.O.
,
    2015 ONCA 394, at paras. 34-36.

[10]

The
    appellant asserts that the trial judge erred by failing to address mistaken
    belief in consent in his reasons.

[11]

We
    do not accept this submission. Both the complainants account of the sexual
    incident and Ms. Muttons testimony about what the appellant told her about the
    incident (He had continued to have sex with her while she was unconscious)
    precluded an alternate defence of honest but mistaken belief.

Sentence

[12]

The
    appellant contends that the trial judge erred by finding that there were no
    mitigating factors that applied to the appellant and by imposing a harsh and
    excessive sentence.

[13]

We
    disagree. The trial judge reviewed the appellants character and serious
    criminal record relating to previous sexual assaults on other women. He said:

Mr. Perkins does not demonstrate any empathy for the victim or
    his previous victims. He has no remorse and no acceptance of responsibility for
    the current or previous offences. Neither Mr. Perkins, nor any of the people
    who may support him after his release from custody, demonstrate any insight
    into his offences. Mostly, they blame his victims.

[14]

The
    Crown concedes that, in light of the recent decision in
R. v. Summers
,
    [2014] 1 S.C.R. 575, the appellant should have received 1.5:1 credit for
    pre-sentence custody. The trial judge granted 24 months credit for 17 months
    pre-sentence custody.
Summers
mandates 25.5 months credit.

Disposition

[15]

The
    conviction appeal is dismissed. The sentence appeal is allowed, but only to the
    extent of increasing the credit for pre-sentence custody from 24 months to 25.5
    months.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Peters, 2015 ONCA 529

DATE: 20150710

DOCKET: C58852

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wesley Peters

Appellant

Robert C. Sheppard, for the appellant

Michael Perlin, for the respondent

Heard: July 10, 2015

On appeal from the conviction entered on June 14, 2013 by
    Justice A. Thomas McKay of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of assault, assault with a weapon (a knife),
    and breach of recognizance by Justice A.T. McKay of the Ontario Court of
    Justice. The appellant appeals only his conviction for assault with a weapon.

[2]

During a concerted beating of the complainant by three men in a private
    residence in London, one of the men (called Muncey), pulled out a knife and
    stabbed the complainant. There is no issue that the appellant was one of the
    men involved in the beating. Nor is it contested that the appellant did not
    stab the complainant.

[3]

The appellant asserts that the trial judge erred in reaching this
    conclusion:

I infer that Mr. Peters would have had knowledge of the knife
    in possession of one of his companions, and the intention to use it as part of
    the assault. Therefore, I find that he was a party to the charge of assault
    with a weapon.

The appellant contends that this conclusion is based on
    speculation, not proper drawing of inferences from the evidence.

[4]

We do not accept this submission. There was strong evidence that the
    appellant was the lead attacker throughout a fairly lengthy beating. When
    Muncey pulled out the knife, he announced that he was going to use it on the
    complainant. The appellant did not stop Muncey; indeed he continued in his part
    of the beating.

[5]

In our view, the evidence was overwhelming. There was a plan to beat the
    complainant because he was perceived as a rat, having testified against an
    associate of the three attackers in a previous court proceeding. The appellant
    was the leader throughout the beating. Munceys use of the knife was clearly
    visible to the appellant and he did nothing to stop the stabbing. Indeed, he
    kept beating the complainant. At a minimum, this brings his conduct within the
    wording of s. 21(2) of the
Criminal Code
.

[6]

The conviction appeal is dismissed. The appellant formally abandoned his
    sentence appeal.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M.L. Benotto 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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Quesnelle, 2015 ONCA 554

DATE: 20150727

DOCKET: C58099

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louis Quesnelle

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Kevin Rawluk, for the respondent

Heard:  July 21, 2015

On appeal from the conviction entered by Justice Mulligan
    of the Superior Court of Justice, dated July 4, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We do not agree that the trial judge erred in failing to expressly refer
    to some of the inconsistencies between the complainants trial evidence and his
    statement or preliminary inquiry evidence.  These inconsistencies related to a
    few of the many incidents of abuse described by the complainant and were in the
    main peripheral to the central allegations.

[2]

The trial judge was alive to the
Vetrovec
-like frailties in the
    complainants evidence and considered those problems.  He was not required to
    articulate a
Vetrovec
-type caution.

[3]

We also do not agree that the trial judge assumed that the complainant
    had been sexually assaulted in assessing the impact of the complainants
    criminal record on his credibility.  Reading the passage as a whole, we read
    the trial judge as saying that the record and associated alcohol abuse did not
    automatically render his evidence unworthy of belief.  As the trial judge noted
    all of the circumstances had to be considered.

[4]

There was evidence that the complainant underwent hypnosis at some
    point.  The issue was not raised.  We will not speculate as to what, if any,
    impact the complainants hypnosis may have had on his evidence had the issue
    been raised.

[5]

We agree that the trial judge misapprehended the complainants evidence
    on count 3.  In fact, the complainant did not recall the event.

[6]

We do not accept the Crown argument that the misapprehension was not material
    because the trial judge accepted the sisters evidence.  The trial judge
    accepted her evidence as confirmatory of the complainants evidence.  On a
    proper understanding of the evidence, it could not confirm the complainants
    evidence as he gave no evidence about the incident. We cannot say that the
    sisters evidence could inevitably have carried the full burden of proof absent
    any evidence from the complainant.  The conviction on count 3 is quashed.  The
    Crown is entitled to a new trial on that count, if so disposed.

[7]

We see no reason to interfere with the sentence imposed on the sexual
    assault charges.  Five years was fully justified apart entirely from the
    alleged assault which gave rise to count 3.

[8]

The Crown fairly points out that the complainant was not a young
    person as defined in the
Criminal Code
.  Consequently, count 6 must
    be quashed and an acquittal entered.  That variation has no impact on the
    sentence.

[9]

In the result, the conviction on count 3 is quashed and a new trial
    ordered.  The conviction on count 6 is quashed and an acquittal is entered.
    The convictions on counts 1, 4 and 5 stand.  The total sentence is not altered.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Salinas, 2015 ONCA 546

DATE: 20150721

DOCKET: C57758

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Colleen Salinas

Appellant

Michael A. Johnston and Matthew B. Day, for the
    appellant

Gavin MacDonald, for the respondent

Heard:  July 20, 2015

On appeal from the convictions entered by Justice C.A.
    Kehoe of the Ontario Court of Justice, dated September 13, 2013 and the
    sentence imposed on September 19, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We must reject the appellants submissions.  The case was factually
    straightforward and turned largely on credibility assessments.

[2]

While the appellant has pointed to at least one factual error in the
    reasons, and to other parts of the evidence which were not referred to by the
    trial judge, neither amounts to a material misapprehension of the evidence or
    an unbalanced scrutiny of the evidence of the appellant when compared to that applied
    to the evidence of the Crown witnesses, including the police officers.

[3]

The appellant acknowledges there was evidence capable of supporting the
    convictions.  We would not interfere.

[4]

As we would uphold the convictions, the sentence appeal on the obstruct
    police charge is effectively moot.

[5]

The appeal is dismissed.


WARNING

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

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

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

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Semple, 2015 ONCA 562

DATE: 20150728

DOCKET: C55318

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Semple

Appellant

Richard Posner, for the appellant

John Patton, for the respondent

Heard:  July 24, 2015

On appeal from the conviction entered by Justice Stong of
    the Superior Court of Justice, sitting with a jury, dated October 6, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The impugned comment in closing by the Crown, while to some extent
    understandable in light of the defence closing, was inappropriate and should
    not have been made.

[2]

However, placed in the context of the entire trial, especially the trial
    judges instructions, we cannot say that there is any significant risk that the
    comment may have improperly impacted on the jurys deliberations and resulted
    in a miscarriage of justice.

[3]

The trial judge wrongly told the jury that there is a presumption in
    law that a witness comes to court to tell his or her honest recollections.
    There is no such presumption.  Indeed, as the trial judge told the jury the
    assessment of the witnesses credibility and reliability can only be made after
    a consideration of a variety of factors.  The trial judge identified those
    factors at some length.

[4]

Both the appellant and the complainant testified.  For the reasons
    identified in
R. v. Luciano
(2011), 267 C.C.C. (3d) 16 at paras. 130-37
, it is difficult to see how the
    presumption instruction could have prejudiced the appellant.  In any event,
    we are confident that in making its assessment of the witnesses, the jury did
    not seize on a single sentence uttered by the trial judge, but rather made its
    assessment in light of all of the relevant considerations identified by the
    trial judge.

[5]

Counsel for the appellant did not press the other two grounds set out in
    his factum.  We think he was wise in not doing so.  We see no merit in either.

[6]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Siddiqi, 2015 ONCA 548

DATE: 20150724

DOCKET: C59170

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shakib Siddiqi

Appellant

Lance Beechener, for the appellant

Gavin MacDonald, for the respondent

Heard: July 3, 2015

On appeal from the conviction entered on May 29, 2014 and
    the sentence imposed on July 17, 2014 by Justice Lorne E. Chester of the Ontario
    Court of Justice.

ENDORSEMENT

A.

Overview

[1]

The appellant, Shakib Siddiqi, was convicted of one count of assault and
    two counts of assault with a weapon, for pushing his 73-year old aunt to the
    floor and hitting his 17-year old daughter with a piece of wire and with a laptop
    computer. He appeals his convictions and his sentence of nine months
    incarceration.

[2]

At the hearing of the appeal on July 3, 2015, we dismissed the appeal,
    with reasons to follow. These are those reasons.

B.

Conviction appeal

[3]

In respect of his conviction, the appellant advances three grounds of
    appeal: (i) the trial judge demonstrated a reasonable apprehension of bias
    rendering the trial unfair; (ii) the trial judge misapprehended the aunts
    evidence; and (iii) the trial judge erred in his use of his daughters
KGB
statement to the police.

Reasonable apprehension of bias

[4]

To place the argument about reasonable apprehension of bias in context,
    the appellant was born in Afghanistan, then moved with his parents to India at
    the age of 16. Thirteen years later, he and his wife moved to Canada. The
    events for which charges were laid took place in the familys home in Richmond
    Hill.

[5]

The appellant submits the trial judge permitted inappropriate cultural
    stereotypes to enter into his reasoning process, thereby giving rise to a
    reasonable apprehension of bias. He contends that at trial Crown counsel
    pursued a line of questioning of the appellants daughter aimed at exposing a
    cultural basis for the Appellants actions and for the reluctance of [the
    daughter and aunt] to testify against him. The appellant argues that in his
    reasons for judgment and sentence the trial judge made comments that revealed
    he approved of the Crowns theory, pointing to the following language:

(i)

In his judgment, the trial judge noted that it was obvious the daughter
    did not want to be in court testifying against her father and that she
    perceived herself as to be between a rock and a hard place. In his sentencing
    reasons, the trial judge repeated that the daughter was between a rock and a
    hard place when she testified and, he continued: She was under restraints of
    being the daughter of the accused and cultural restraints and familial
    restraints  constraints I guess is a better word, when she testified;

(ii)

In his judgment, the trial judge also observed that when the daughter
    gave her
KGB
statement to the police she swore on the Quran, whereas
    she affirmed when she gave her evidence at trial;

(iii)

In the pre-sentence report, the appellants wife had described her
    husband as overall hes a good person. In commenting on that description in
    his reasons for sentence, the trial judge stated: But I find that she, based
    on her daughters testimony, that she too is constrained by marriage, culture
    and ethnicity;

(iv)

Finally, in his sentencing reasons, the trial judge stated that the
    offences need to be denounced and Mr. Siddiqi has to be specifically deterred
    from committing those kinds of violent offences in the future. He continued:
    Just as importantly, the community, whether it is the Afghan community or any
    other community regardless of their culture or religion, there has to be a
    message sent out that there has to be a respect for the law but also for the person.

[6]

We see no merit in this submission. To ascertain whether a reasonable apprehension
    of judicial bias exists, one must ask the question: What would an informed
    person, viewing the matter realistically and practically  and having thought
    the matter through  conclude? Would he think that it is more likely than not
    that [the decision-maker], whether consciously or unconsciously, would not
    decide fairly?
Committee for Justice and Liberty v. National Energy Board
,
    [1978] 1 S.C.R. 369, at pp. 394-395. When that question is asked of the
    reasoning of the trial judge disclosed in his judgment and reasons for
    sentence, the answer is that they disclose no reasonable apprehension of bias.
    The trial judges judgment and sentencing reasons, when read fairly and in
    their entirety, disclose that he did not rely upon cultural factors in
    convicting and sentencing the appellant.

[7]

First, the premise of the appellants submission  i.e. that the Crown
    pursued a line of questioning aimed at exposing a cultural basis for the
    Appellants actions and for the reluctance of [the daughter and aunt] to
    testify against him  is not supported by the trial transcript. During the
    course of her evidence-in-chief, the daughter testified that her parents
    desire to have boys was a cultural thing, but they were content with what
    they had regardless of traditional beliefs. The Crown then asked how her
    parents would view calling the police to deal with a family matter, and the
    daughter responded that had nothing to do with the familys value system. The
    respondent submits that these questions were not improper, but were directly
    responsive to the witnesss own testimony. We agree.

[8]

Second, while acknowledging that the trial judge made no reference to
    cultural matters in his judgment, the appellant argues that his use of the
    phrase between a rock and a hard place in his sentencing reasons did contain
    a cultural dimension that indicated his trial reasons had been tainted. At one
    place in his sentencing reasons, the trial judge repeated that the daughter was
    between a rock and a hard place, and he continued: She was under restraints
    of being the daughter of the accused and cultural restraints and familial
    restraints  constraints I guess is a better word, when she testified. Later
    in his sentencing reasons he explained what he meant by the phrase between a
    rock and a hard place:

Just to give a flavor of what I mean by between a rock and a
    hard place; the officer testified as to his observations when he arrived at
    the front door. He met with the complainant She asked us  that being a
    couple of officers - to escort her upstairs. She did not want to be seen
    talking to the police because her father may hurt her if she does. She was
    extremely nervous and frightened. She wanted to be separated. She was
    panicking. She wanted to get the police isolated away from her father and she
    was shaking.

[9]

A trial judges reasons must be read fairly and as a whole. Reading the
    trial judges reasons in that fashion, it is clear that his repeated use of the
    phrase between a rock and a hard place did not signify that any sort of
    impermissible cultural stereotyping had entered into his reasoning. He merely
    used the phrase to describe that the daughter felt she was in a very difficult
    situation making allegations against her father and testifying against him and,
    as well, to compare her demeanour at trial with that which she displayed when
    giving her
KGB
statement. There was no cultural dimension to his use
    of the phrase. People of all cultures likely will find it difficult to testify
    against their own family in a criminal trial.

[10]

Third,
    the trial judge did observe that the daughter gave her
KGB
statement
    under oath, whereas she affirmed at trial. However, there is nothing in his
    judgment to indicate he gave more weight to her KGB statement because it was
    under oath, rather than by affirmation, as was her trial testimony.

[11]

Next,
    the trial judges comments on the statements attributed to the appellants wife
    in the pre-sentence report must be read in the context of his overall analysis
    of the evidence and information relating to mitigating factors. The sentencing
    reasons disclose that the trial judge discounted the wifes description of her
    husband as a good person because of the daughters statement to the police
    that her mother had told her to excuse her fathers conduct and because of the
    statements of the appellants mother-in-law in the pre-sentence report that
    since his arrest, the appellant had improved and is okay now.

[12]

Finally,
    with the respect to the trial judges mention of the Afghan community or any
    other community in his sentencing discussion about denunciation and general
    deterrence, we do not see his references to the specific community of the
    appellant as well as to the more general community at large as giving rise to a
    reasonable apprehension of bias. When his sentencing reasons are read as a
    whole, there is nothing to suggest that the trial judge treated the appellants
    ethnic origins as a factor in his sentencing analysis:
R. v. Zheng
,
    2014 ONCA 345, at para. 12.

Misapprehension of evidence

[13]

The
    only witness called at trial by the appellant was his aunt who denied the
    appellant had assaulted her. The trial judge put very little weight on the
    aunts evidence, stating that she was an elderly lady, 75 years of age,
    suffering from depression and admitted issues with her memory and that her
    head is not right. The appellant submits that the trial judge misapprehended
    the aunts evidence because she did not testify that her head was not right.

[14]

We
    agree that the trial judge was mistaken about this part of the aunts evidence
     she did not testify that her head was not right. We do not agree, however,
    that the trial judge misapprehended the substance of material parts of the
    aunts evidence or that his error played an essential part in the reasoning
    process resulting in a conviction:
R. v. Morrissey
(1995), 97 C.C.C.
    (3d) 193 (Ont. C.A.), p. 221. Part of the material substance of the aunts
    evidence was that her memory was poor  she admitted in cross-examination that
    she had issues with her memory, as noted by the trial judge in his judgment. Accordingly,
    we conclude that the trial judge did not misapprehend the substance of the
    aunts evidence.

The daughters
KGB
statement

[15]

The
    trial judge admitted into evidence a statement the appellants daughter had
    given to the police on the day they were called to the family home. The trial
    judge preferred the evidence the daughter gave in her statement to the police
    to that she gave at trial. In reaching that conclusion, he relied on the
    daughters demeanour and the contrast between the manner in which she gave her
    statement to the police as compared to her reluctance to give evidence against
    her father at trial.

[16]

The
    appellant submits that the trial judge erred in relying so heavily on the
    contrast in the daughters demeanour between her evidence in the statement and
    her evidence at trial. We do not agree. The trial judge gave detailed reasons
    why he preferred the evidence given by the daughter in her statement to the
    police. In
R. v. K.G.B.
, [1993] 1 S.C.R. 740, at p. 804, the Supreme
    Court of Canada expressly stated that when determining the appropriate weight
    to be given to a
KGB
statement, a trier of fact could take into
    account the demeanour of the witness at all relevant times (which could
    include making the statement, when recanting at trial, and/or when presenting
    conflicting testimony at trial). When his reasons are read as a whole, we are
    not persuaded that the trial judge placed disproportionate weight on demeanour
    in relying on the
KGB
statement.  Accordingly, we see no error in the
    trial judges substantive use of the daughters
KGB
statement.

C.

Sentence appeal

[17]

The
    trial judge sentenced the appellant to six months for the assault of his
    daughter with the wire, two months consecutive for the assault of his daughter
    with her laptop computer, and one month consecutive for the assault of his
    aunt.

[18]

The
    appellant submits that the trial judge erred in principle in imposing that
    sentence for several reasons: (i) his reasoning was influenced by the use of
    cultural stereotypes; (ii) he did not treat the appellants first offender
    status as a mitigating factor; and (iii) he treated the appellants lack of
    insight into his conduct as an aggravating factor.

[19]

As
    discussed above, we do not accept the appellants submission that the trial
    judges reasoning was tainted by the use of cultural stereotypes.

[20]

Although
    the trial judge did not include in his list of mitigating factors the fact that
    the appellant was a first offender, it is clear from other parts of his sentencing
    reasons that the trial judge was quite alive to that fact.

[21]

It
    is true that the trial judge identified as an aggravating factor the
    appellants lack of insight here as to what he has done and that he has put
    himself above the law. To use lack of remorse as an aggravating factor in
    sentencing, absent unusual circumstances, is an error in law:
R. v. Ling
,
    2014 ONCA 808, at para. 12. That said, although the trial judges error in
    principle requires this court to consider the fit sentence to impose on the appellant
    in the circumstances, in accordance with the totality principle we agree with
    the trial judge that a global sentence of nine months is a fit sentence for
    these three assaults in the domestic context.

D.

Disposition

[22]

For
    these reasons, the appeal from conviction is dismissed.  Leave is granted to
    appeal the sentence, but the appeal from sentence is dismissed.

David
    Watt J.A.

David
    Brown J.A.

L.B.
    Roberts J.A.