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    the complainant or a witness shall not be published in any document or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. J.J., 2014 ONCA 759

DATE: 20141031

DOCKET: C56623

Sharpe, LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Michael Dineen and Caitlin M. Pakosh, for the appellant

Tracy Kozlowski, for the respondent

Heard and released orally: October 24, 2014

On appeal from the conviction entered on June 15, 2012
    and the sentence imposed on December 6, 2012 by Justice
Robert
    A. Riopelle
of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions on two counts of sexual assault
    following a judge alone trial.

[2]

The complainant was the appellants 14-year-old stepdaughter.  The Crown
    led evidence from the complainant and her mother, the appellants then spouse,
    who was also a police officer.  The Crown led evidence from the complainants
    mother that after her daughter had disclosed the allegations to her, she ordered
    the appellant from the house.  Initially unsure about who to believe, she
    decided to go to the appellant to attempt to trick him into confessing by
    telling him that if it was her daughter who initiated sex, she, the mother,
    would understand and attempt to reconcile with the appellant.  The
    complainants mother testified that the appellant admitted that he had had sex
    with the complainant at her instigation.

[3]

The appellant testified and denied the allegations and also denied
    making any admission to the complainants mother

[4]

The trial judge accepted the evidence of the complainant and her mother
    and rejected that of the appellant.

[5]

The appellant raises two grounds of appeal.  It is only necessary for us
    to deal with the first ground relating to the evidence of the admission made by
    the appellant to the complainants mother.

[6]

In his reasons for judgment, the trial judge described the circumstances
    of the alleged admission as follows: because shes a police officer at this
    point in time, not just a mother but a police officer, she goes and visits him
    on the third or fourth day at his mothers house, and using some trickery,
    police trickery obtains the admission which the appellant denies.

[7]

The trial judge rejected the appellants denial and again stated that
    the complainants mother was acting as a police officer: I am beyond a doubt
    satisfied that he did in fact confess or make that admission to [the
    complainants mother], who was acting at that point in time both as a mother
    and as a police officer.

[8]

When the evidence of the admission was led, there was no objection or
    request for a
voir dire
as to the issue of voluntariness given the
    complainants mothers status as a police officer.  This issue arose for the first
    time in the reasons of the trial judge.  Although the appellant did not raise
    the point at trial, the trial judges finding is clear and unequivocal, and
    there is nothing in the record to indicate that the defense waived the
    necessity of the
voir dire
.

[9]

There is ample authority for the proposition that a trial judge has an
    obligation to conduct a
voir dire
to assess the voluntariness of the
    statement where the receiver of the statement is a conventional person
    authority such as a police officer: see
R. v. Hodgson

(1998),
    127 CCC (3d) 449 (S.C.C.).  Plainly, the appellant knew that the complainants
    mother was a police officer.  If the complainants mother was acting in her
    capacity as a police officer, as the trial judge found, the issue of an
    inducement arises as she suggested that if the appellant admitted having had
    sex with his stepdaughter, there was a possibility of reconciliation.

[10]

While
    the proposition that the complainants mother was acting as a police officer
    may well be something the Crown could dispute, given the trial judges
    unequivocal finding, it is our view that, absent waiver by the appellant, he
    should have conducted a
voir dire
to determine the role in which the
    complainants mother was acting and the voluntariness of the statement.

[11]

We
    cannot accept the Crowns submission that the verdict would necessarily have
    been the same without the evidence of the admission as the trial judge attached
    significant weight to it.

[12]

In
    these circumstances, the appeal must be allowed, the convictions set aside and
    a new trial ordered.

Robert
    J. Sharpe J.A.

H.S. LaForme J.A."

G.
    Pardu J.A. "


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jamieson, 2014 ONCA 766

DATE: 20141031

DOCKET: C58296

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Jamieson

Appellant

Ilan Neuman, for the appellant

Nick Devlin, for the respondent

Heard: October 27, 2014

On appeal from the judgment of Justice J R. MacKinnon of
    the Superior Court of Justice, dated January 17, 2014, granting the application
    for certiorari to quash the subpoena issued January 9, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The progress of this proceeding shows the wisdom of the policy
    underlying
R. v. Johnson
(1991), 64 C.C.C. (3d) 20.  No doubt had the
    issue been raised before the motion judge he would have adjourned the motion to
    quash the subpoena to the trial judge.  Unfortunately he was not asked to do
    so.  Consequently the trial has been delayed several months while this appeal
    was outstanding.  We repeat absent special circumstances motions like this
    one which raise trial related matters should be heard by the trial court.

[2]

On the merits we agree with the motion judge.  Nothing before him demonstrated
    that the proposed witness, Crown counsel in the proceedings involving the
    former co-accused, was likely to give material evidence:
R. v. Harris
(1996), 93 C.C.C. (3d) 478 (C.A.).  The appeal is dismissed.

[3]

In dismissing the appeal we do not intend to preclude the appellant from
    raising the issue at trial.  If the issue is raised at trial, the trial judge
    based on the record before him or her and having due regard to the reasons on
    the certiorari motion will determine whether the witness should be compelled to
    testify: see
R. v. Johnson
.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kanagalingam, 2014 ONCA 727

DATE: 20141022

DOCKET: C54541

Laskin, Cronk and Blair
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nirmalarasan Kanagalingam

Appellant

Ian R. Smith and Amy Ohler, for the appellant

Tracy Kozlowski, for the respondent

Heard: June 18, 2014 and June 19, 2014

On appeal from the conviction entered on July 13, 2011
    and the sentence imposed on September 9, 2011 by Justice Myrna L. Lack of the Superior
    Court of Justice, sitting with a jury.

R.A. Blair J.A.:

Overview

[1]

The appellant and four other men were charged with a series of offences arising
    out of a fraudulent credit and debit card scheme.  The four other men pled
    guilty to various offences relating to the scheme, and did so based on agreed
    statements of fact that implicated the appellant in the criminal activities.

[2]

The appellant, on the other hand, pled not guilty.  After a 17-day jury
    trial, he was convicted of multiple counts of fraud, conspiracy to commit
    fraud, fraudulent use and possession of credit card data, and participating in
    the activities of a criminal organization involved in debit card fraud.  He was
    acquitted on a charge of directing others to commit an offence while being a
    member of a criminal organization.  The trial judge sentenced him to a total of
    6 years imprisonment and ordered him to pay restitution in the amount of
    $50,000.

[3]

At trial, the Crowns case rested primarily on the testimony of the
    former co-accused.  Inconveniently, however, each of them recanted portions of the
    agreed statements of fact upon which their earlier pleas had been based, as
    well as portions of other prior statements implicating the appellant.  In two
    cases the recanted statements were made during testimony given at the
    appellants preliminary inquiry.

[4]

Crown counsel accordingly applied to have the relevant portions of the agreed
    statements of fact and the other statements  including excerpts from the
    guilty pleas and preliminary inquiry transcripts  admitted into evidence for
    the truth of their contents, relying upon the principles set out in
R. v. B.
    (K.G.)
, [1993] 1 S.C.R. 740.  The trial judge admitted them and the jurors
    acceptance of their contents undoubtedly played a central role in their
    decision to convict.

[5]

The appellant contests both his conviction and sentence.  On the
    conviction appeal, his first major ground of appeal focuses on the admission of
    three of the agreed statements of fact.  The appellant argues that the former
    co-accuseds powerful motives to lie in order to obtain lenient sentences, the
    withdrawal of other charges and, in some cases, benefits to family members,
    undermined the threshold admissibility of the statements.  He submits that the
    trial judge erred in admitting them.

[6]

A second ground on the conviction appeal arises out of the
Vetrovec
warning
[1]
given by the trial judge to the jury cautioning them about the risks of relying
    on the evidence of the former co-accused who were all unsavoury witnesses.  The
    appellant submits the warning was inadequate.

[7]

For the reasons that follow, I would allow the appeal and order a new
    trial.  While I am not persuaded that the trial judge erred in admitting what I
    will refer to as the
K.G.B.
statements, I agree with the appellant
    that the
Vetrovec
warning was inadequate to serve its intended purpose
    in the circumstances.  As a result, it is unnecessary to deal with the sentence
    appeal.

Facts

[8]

The details of the fraudulent conspiracy are not important.  In
    substance, it involved the theft of banking information from debit card PIN
    pads at various retail stores.  This was accomplished by co-opting a cashier at
    the targeted outlet, who would turn a blind eye while a member of the organization
    removed the PIN pad from the debit machine and replaced it with a decoy.  The
    PIN pad was then taken to another site and altered to enable the organization
    to steal data from subsequent uses of the PIN pad.  The original now-altered
    PIN pad would then be returned and reinstalled at the retail outlet.  A member
    of the organization would return to the store some days or weeks later to recover
    the data using a handheld electronic device such as a smartphone.  The stolen
    data was then used to produce counterfeit debit or credit cards that were, in
    turn, used to withdraw funds from the targeted accounts by way of automated
    teller machines (ATMs).

[9]

An attempted debit card fraud at a Sunoco gas station in Whitby
    unsuccessful because the cashier tipped off the police  and successful frauds
    carried out at Guess Jeans retail stores in Woodbridge and at the Yorkdale Mall
    formed the basis for the charges against the appellant and his co-accused.  Those
    involved in the conspiracy netted proceeds of approximately half a million
    dollars.

[10]

For
    the following particulars I rely principally on the appellants recitation of
    the facts, which was accepted in substance by counsel for the Crown.

[11]

The
    appellant is alleged to have been the handyman in the organization, that is,
    the person responsible for the alteration of the PIN pads that enabled the data
    to be collected surreptitiously.

[12]

The
    co-accused who pled guilty played other roles.  While the details of the scheme
    are not important for purposes of the appeal, the particulars of the guilty
    pleas and the agreed statements of fact on which they were based are.

[13]

Kajenthiran
    Vijayakumar and Vigitharan Selvaraj participated in the attempted fraud at the
    Whitby Sunoco station.  Vijayakumars role was to recruit a cashier to
    participate in the endeavour.  He also worked generally as a runner for
    Selvaraj.  A runner picks up the counterfeit cards on which the stolen credit
    card or debit card data has been imprinted, takes them to an ATM, and uses them
    to withdraw money from the victims accounts.  Selvarajs role was to steal the
    PIN pad; he went to the Sunoco station on the night of the attempted fraud,
    switched the decoy pad for the real PIN pad, and returned the stolen pad to a
    hotel where he handed it over to a person he understood to be responsible for
    altering the pads.

[14]

Mithun
    Indrakumaran recruited the Guess Jeans cashier at the Yorkdale Mall.  He also
    delivered the PIN pad to another man, Arthick Antonito, who took it away for
    alteration and then returned it to Indrakumaran to have it exchanged for the
    decoy.  Aruncumar Ravindran recruited the cashier at the Guess Jeans store in
    Woodbridge.  He delivered stolen PIN pads to Antonito too.

[15]

Vijayakumar,
    Selvaraj, Indrakumaran and Ravindran each pled guilty based on agreed
    statements of fact prepared by their lawyers in consultation with each other.  Selvaraj,
    Indrakumaran and Ravindran confirmed the truth of those statements under oath
    at the time of their guilty pleas.  Vijayakumar gave an earlier videotaped
    statement to the police based on his agreed statement of fact, under oath and
    in the presence of his then counsel.  Indrakumaran and Ravindran testified at
    the appellants preliminary inquiry.

[16]

In
    each case, the statements implicated the appellant in the crimes.  Vijayakumar
    placed the appellant in the hotel room where the PIN pads were altered and the
    arrests were made.  Selvaraj said that he gave the stolen Sunoco PIN pad to the
    appellant whom he knew was the person responsible for altering the PIN pads,
    and that the members of the organization who worked under the appellant would
    act as runners.  Indrakumarans agreed statement of fact stated that he and
    Ravindran reported to the appellant, that he delivered stolen PIN pads to the
    appellant, that the appellant told them he was able to alter commercial credit
    and debit PIN pads electronically, and that monies collected from the frauds
    would be returned to the appellant.  At the preliminary inquiry, Indrakumaran
    described a meeting at a restaurant attended by Antonito (the man to whom the
    Guess Jeans PIN pads had been delivered), Ravindran, the appellant and himself,
    and said that the appellant was the person who gave out the codes to unlock the
    safes containing the counterfeit cards.  Ravindrans statements connected the
    appellant with Antonito as well.

[17]

At
    trial, however, the stories were different.

[18]

Vijayakumar
    denied the appellant was in the room at the hotel and refused to adopt other
    portions of his video statement implicating the appellant.  He said he lied to
    the police because his lawyer told him that the only way he would get a deal on
    sentencing was to say the appellant had been in the hotel room.

[19]

Selvaraj
    testified at trial that he did not know the name of the person to whom he had
    given the PIN pad.  The appellants name had been given to him later.  He
    explained that he had not reviewed the agreed statement of fact carefully
    before the plea, but just wanted to get out of jail (he had served 500 days of
    pre-trial custody).  His lawyer read him the facts and told him it had been
    created by Vijayakumars lawyer and that Vijayakumar was pleading guilty the
    same day to the same facts.  He thought that if he did not accept the facts his
    guilty plea would not proceed.

[20]

In
    spite of his detailed agreed statement of fact fingering the appellant,
    Indrakumaran testified at trial that he had never met the appellant, although
    he had seen him once at a Tim Hortons  but did not speak with him  when he
    had met with Antonito to pick up money after a run.  With respect to his preliminary
    inquiry evidence about a restaurant meeting with the appellant and others,
    Indrakumaran maintained his only encounter with the appellant was at the Tim
    Hortons.  Nor did he really know that the appellant was the person who gave
    out the codes to unlock the safes containing the counterfeit cards; he just
    assumed the person above Antonito in the organization did so. He was no longer
    sure that person was the appellant.

[21]

Indrakumaran
    also testified that he felt pressured to plead guilty.  His brother had been
    charged with obstructing police in connection with a pre-trial breach of bail
    by Indrakumaran and faced the estreatment of $105,000 posted for Indrakumarans
    pre-trial release.  The charges against the brother and the bail estreatment
    were withdrawn following the guilty plea.  Indrakumaran, too, agreed under oath
    at the time of the guilty plea that the contents of the agreed statement of
    fact were true.  He explained at trial, however, that his lawyer had told him certain
    things had to be contained in the statement for the Crown to agree to a deal.  While
    he knew there was someone above Antonito in the organization, he simply
    figured on the basis of persistent police questioning and having seen the
    appellant at Tim Hortons that that person was the appellant.

[22]

Each
    former co-accused profited considerably from their guilty pleas and the agreed
    statements of fact and pre-trial statements underlying them.

[23]

Vijayakumar
    received a suspended sentence after pleading guilty to conspiracy to commit
    fraud over $5,000, attempt to commit fraud over $5,000, theft under $5,000 and
    possession of property obtained by crime under $5,000.  Several charges
    including participating in a criminal organization  were withdrawn.  He had a
    prior criminal record for robbery and failing to comply with bail.

[24]

Selvaraj
    had served 500 days of pre-sentence custody and was sentenced to a further 18
    months imprisonment.  On his guilty plea a number of charges were withdrawn.
    He did not have a prior criminal record, but had received a conditional
    discharge.

[25]

As
    noted above, both Indrakumaran and his family benefited considerably from his
    guilty plea to five counts of fraud over $5,000.  The Crown withdrew 41 other
    charges, including conspiracy to commit an indictable offence and committing an
    offence for the benefit of a criminal organization.  The Crown also withdrew
    the obstruction of police charge against his brother and abandoned the
    application to estreat the $105,000 posted for his bail by his brother and a
    family friend.  On a joint submission, Indrakumaran received a conditional
    sentence.

[26]

Ravindran
    pled guilty to five counts of fraud on the same day as Indrakumarans plea and
    based on a very similar agreed statement of fact.  He had also been in breach
    of his bail conditions and was in custody at the time of his plea.  On a joint
    submission, he agreed to forfeit $35,000 found in a safety deposit box and
    received a conditional sentence.

Analysis

[27]

I
    turn first to the
K.G.B.
statements.

The
K.G.B.
Statements

[28]

As
    I have said, a new trial is necessary based on the
Vetrovec
ground of
    appeal.  Strictly speaking, therefore, it is not necessary to deal with the
    admissibility of the
K.G.B.
statements.  In the event of a new trial,
    however, it may be useful to do so.

[29]

The
    appellant attacks the trial judges decision to admit three of the agreed
    statements of fact for purposes of threshold reliability  those of Selvaraj,
    Indrakumaran and Ravindran.
[2]
In my view, she did not err in doing so.

[30]

I
    agree with the trial judges conclusion that the appellants objections
    conflate threshold reliability and ultimate reliability.  While there were many
    questions to be resolved in terms of the ultimate reliability of the witnesses
    statements implicating the appellant  something to which I will return in the
Vetrovec
portion of these reasons  those questions were for the jury to resolve.  The
    trial judge had an ample basis on which to conclude that there were sufficient indicators
    of threshold reliability for purposes of admissibility, in my view.

[31]

There
    are generally speaking two ways of satisfying threshold reliability: either the
    trier of fact has a sufficient basis on which to assess the hearsay statements
    truth and accuracy, using substitutes for the typical adversarial process
    (procedural reliability), or the circumstances in which the statement was made provide
    guarantees that the statement is reliable or trustworthy (substantive
    reliability):
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at
    paras. 62-63;
R. v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at
    para. 30.

[32]

In
K.G.B.
, at pp. 795-96, the Supreme Court of Canada recognized three
    indicators of threshold reliability that would generally justify the admission
    of a statement: (i) the statement is made under oath or affirmation following a
    warning on the significance of the oath and the availability of sanctions for
    giving a false statement; (ii) the statement is videotaped in its entirety; and
    (iii) the opposing party has a full opportunity to cross-examine the witness
    respecting the statement.  These three indicators provide a means by which the
    trier of fact can test the hearsay statement.

[33]

Here,
    Selvaraj, Indrakumaran and Ravindran

were each represented by counsel who assisted in the preparation of the
    statements.  Each reviewed their respective statements with counsel prior to
    their guilty plea hearing.  Each testified under oath, affirmation or a promise
    to tell the truth at their guilty pleas that the contents of their agreed
    statement of fact were true.  They did not simply state themselves, or through
    counsel, that the facts were substantially true; indeed, Indrakumaran and
    Ravindran testified that they were completely accurate, 100 per cent.  The
    judge hearing their guilty pleas accepted, based on their assurances, that the
    pleas were voluntary, and on their testimony, that they were founded on
    evidence that was true and accurate.  Finally, they were available for
    cross-examination not only (in the case of Indrakumaran and Ravindran) at the
    appellants preliminary inquiry but  most significantly  at the appellants
    trial, where their conflicting evidence and their explanations for changing
    their testimony could be tested.  There was little need, therefore, for the
    taking of the statements to have been videotaped.

[34]

In
    short, the threshold reliability requirement [was] met on the basis that the
    trier of fact [had] a sufficient basis to assess the statements truth and
    accuracy and there was therefore no need to inquire further [at that stage]
    into the likely truth of the statement:

Khelawon
, at para. 92.

[35]

The
    appellant submits, however, that even where the
K.G.B.
indicators of
    reliability are present the trial judge retains a residual discretion to refuse
    to admit the impugned evidence.  He argues that the trial judge erred here in
    failing to exercise that discretion given the circumstances rendering the
    agreed statements of fact inherently unreliable  the strong motivations to
    lie in order to obtain the benefit of favourable sentences and other
    advantages.  I do not agree.

[36]

The
    trial judge has a residual
discretion
.  The appellants argument is
    tantamount, however, to saying that he or she
must
exercise that
    discretion to exclude a prior statement at the threshold reliability stage
    where the trier of fact has sufficient means to test the evidence, but the
    circumstances under which the statement was made undermine the veracity of the
    indicia of reliability:
K.G.B.
, at p. 801.  This proposition is the
    antithesis of discretion, and I do not read
K.G.B.
and its progeny as
    going that far.

[37]

As
K.G.B.
indicates, the residual discretion concept evolved out of the
    notion that
K.G.B.

statements were prone to the same kinds of
    frailties that gave rise to the rule relating to confessions.  That rule is
    designed to ensure that the statement is made voluntarily and not by way of
    inducement or other improper factors that would tend to bring the
    administration of justice into disrepute: see
K.G.B.
, at pp. 801-2.

[38]

The
    proposition that there is a rule excluding admission of a witness statement
    where the witness may be motivated to lie and to implicate another person is
    counter-intuitive to the notion of discretion, and has been rejected by this
    Court in
R. v. Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d) 208, leave to
    appeal to S.C.C. refused, [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 46,
    [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 166.  There, the Court noted, at
    para. 145, that just as the question of admission should not be treated as a
    mechanical exercise, neither in our view, should the question of exclusion.
    The
per se
rule suggested by the appellants runs precisely that risk
    and we reject it for that reason.

[39]

In
    response, the appellant relies heavily on the recent decision of the Supreme
    Court of Canada in
Youvarajah
, and there are similarities with that
    case, to be sure  it involved a guilty plea by one accused based on an agreed
    statement of fact implicating another accused that was recanted at the trial of
    the second accused.

[40]

Youvarajah
    and D.S. were charged with first degree murder.  The Crowns theory was that
    Youvarajah had planned the murder and provided the weapon to D.S. (a young
    offender) to shoot the victim.  D.S. pled guilty to second degree murder on the
    basis of the agreed statement of fact.  At Youvarajahs trial, D.S. denied the
    facts in the statement implicating Youvarajah in the murder.  He invoked
    solicitor-client privilege and refused to testify further on these matters,
    precluding cross-examination on his reasons for recanting.

[41]

The
    Crown applied to have D.S.s statement admitted on
K.G.B.
grounds, but
    the trial judge rejected the application.  In the course of her reasons
    delivered on behalf of the majority, Karakatsanis J. expressed serious
    reservations about the reliability of a statement made by one accomplice
    implicating another, where the statement may be motivated by self-interest.
    Her observations included the comment  relied upon by the appellant, and found
    at para. 62  that statements by a co-accused or accomplice are recognized as
    inherently unreliable.

[42]

At
    the end of the day, however, the basis for upholding the trial judges decision
    was that the reliability of D.S.s statements could not be adequately tested at
    trial.  As Karakatsanis J. stated, at paras. 64 and 71-72:

The administration of justice would not be enhanced in
    permitting admissions made by a co-accused in his own interest, as part of a
    plea bargain for a conviction of a lesser crime and favourable sentence, to be
    used against a co-accused,
in circumstances where the reliability of the
    statements cannot be adequately tested.

In light of these difficulties,
only a full and complete
    opportunity to cross-examine would have provided a genuine basis on which to
    assess the reliability of D.S.s statements.
His invocation of
    solicitor-client privilege, however, would preclude a full opportunity to
    cross-examine him.

The trial judge did not err in finding that
the jury would
    not have the tools to assess or test the truthfulness
of the exculpatory
    portions of the [agreed statement of fact]. [Emphasis added.]

[43]

D.S.
    asserted solicitor-client privilege, thus severely limiting cross-examination
    on his decision to plead guilty and his reasons for implicating Youvarajah.  In
    addition, D.S.s agreed statement of fact had not been videotaped and there was
    therefore no opportunity to observe his demeanour. There was similarly no
    opportunity to test his choice of words because Crown counsel drafted the
    statement with input from defence counsel.

[44]

Here,
    the fact that the statements of Messrs. Selvaraj, Indrakumaran and Ravindran
    were not videotaped is of less importance, as is the inability to test their
    choice of words in the agreed statements of fact.  They all testified as to the
    truth of their statements under oath, affirmation or a promise to tell the
    truth.  They were all available for cross-examination to test their choice of
    words.  At least one judge  the judge taking the guilty pleas  had not
    expressed any concern about their demeanour and was satisfied as to the voluntariness
    of the pleas and their statements.  The fact that the statements had been
    crafted with the assistance of their counsel is at least one circumstance
    providing some indication of threshold reliability.

[45]

Most
    significant, however, is the fact that all three witnesses were available for
    full cross-examination at the appellants trial.  They had each given an
    explanation for their statements and their guilty pleas and for their different
    testimony at trial.  Thus their respective stories could readily be tested.

[46]

These
    factors distinguish
Youvarajah
from the present appeal, in my view.  I
    do not understand
Youvarajah
to stand for the proposition that there
    is a
per se
rule
requiring
the exclusion of
K.G.B.
statements at the threshold stage where there are circumstances that may
    undermine the veracity of the indicia of reliability.  It is a matter of
    discretion, and each case must be determined in its own context.

[47]

It
    does not follow that because the trial judges discretion not to admit the
    statement in
Youvarajah
was upheld, that the trial judges exercise of
    discretion in the case at bar to admit the statements was in error.  Quite the
    contrary, in fact, for the reasons outlined above.  A trial judges
    determination of threshold reliability is entitled to deference, absent an
    error in principle:
Youvarajah
, at para. 31. Given the indicators of
    threshold reliability existing, it was appropriate for the trial judge to leave
    the statements, and the issue of their ultimate reliability, to the jury.

[48]

I
    would not give effect to this ground of appeal.

The
Vetrovec
Warning

[49]

Different
    considerations arise with respect to the
Vetrovec
warning, however.  In
    this context, the need to be concerned about ultimate reliability was very much
    in issue.

[50]

The
    former co-accused (now witnesses) who testified against the appellant had
    compelling motives to lie about his involvement, both in their agreed
    statements of fact and in their other pre-trial statements: they  and in the
    case of Mr. Indrakumaran, his family and a friend  stood to benefit handsomely
    from their guilty pleas.  Many charges were withdrawn (including, in Mr.
    Vijayakumars case, the serious charge of participating in a criminal
    organization).  The sentences received were, on balance, quiet lenient. Mr.
    Indrakumaran, his family, and a friend, dodged the loss of $105,000 to bail estreatment.

[51]

None
    of this was brought home to the jury in the context of the
Vetrovec
warning.

[52]

The
    purpose of a
Vetrovec

warning is to alert the jury to the
    danger of relying on the unsupported evidence of unsavoury witnesses and to
    explain the reasons for special scrutiny of their testimony:
R. v. Khela
,
    2009 SCC 4, [2009] 1 S.C.R. 104, at para. 11.

[53]

It
    is well settled that a trial judge has a considerable amount of discretion in
    crafting a
Vetrovec
caution to fit the circumstances, and that no
    particular language is mandatory for that purpose.  Appellate intervention is
    not warranted unless a cautionary instruction should have been given but was
    not, or the cautionary instruction that was given failed to serve its intended
    purpose:
Khela
, at para. 13.  Nonetheless, the courts have developed
    a principled framework to assist judges in constructing warnings appropriate
    to the circumstances.  As articulated by this Court in
R. v. Sauvé
(2004), 182 C.C.C. (3d) 321, leave to appeal to S.C.C. refused, [2005] 1 S.C.R.
    xv, at para. 82, and confirmed by the Supreme Court in
Khela
,
at para. 37, the four main foundation elements of such a caution require the
    trial judge, at a minimum, to:

a)

identify to the jury the
    witnesses whose evidence requires special scrutiny;

b)

explain the reasons
why
the evidence is subject to special scrutiny;

c)

caution the jurors about
    the dangers of convicting the accused on the unconfirmed evidence of the
    witness, although they are entitled to do so if they believe that the evidence
    of the witness is true; and

d)

advise the jurors
    that, in determining whether the suspect evidence is true, they should look for
    independent evidence tending to confirm that the untrustworthy witness is
    telling the truth as to the guilt of the accused.

[54]

In
    his careful submissions, Mr. Smith outlined a number of errors that he said resulted
    in the
Vetrovec
warning failing to fulfill its intended purpose here.
    In my view, it is only necessary to deal with one of them.  I am persuaded by
    his first submission, namely, that the trial judge did not adequately explain
    the reasons why the testimony of the four formerly co-accused witnesses
    required special scrutiny, and that a new trial is therefore required.

[55]

Although
    defence counsel requested a broader
Vetrovec
instruction, the trial
    judge indicated during pre-charge discussions that she would limit her
    instructions to the witnesses criminal records and status as fraudsters,
    although she would tell the jury to consider how they got before the court.
    This she did, highlighting the considerable criminal antecedents of the former
    co-accused involving crimes of dishonesty.  But in telling the jury to
    consider how they got before the court, she limited herself to the general
    comment that they should keep in mind the circumstances under which the young
    [men] testified while providing no details in that regard.

[56]

In
    short  apart from appealing to common sense  the trial judge gave only one
    reason why the critical testimony of the former co-accused required special
    scrutiny: their criminal background as fraudsters.

[57]

But
    there was a lot more.  As the appellant argues, the
Vetrovec
instruction was completely silent with respect to a number of salient points
    underpinning the need to scrutinize very carefully the testimony of these
    witnesses  including, in particular, their evidence in the
K.G.B.
statements.  These points included:

·

most importantly, the fact that all four of the former co-accused
    were co-conspirators who each had a strong motivation to lie and to implicate
    the appellant in the scheme  their guilty pleas brought favourably lenient
    sentences, the withdrawal of many charges and other significant benefits;

·

the fact that all four gave evidence at trial that was
    inconsistent with their prior statements and, indeed, admitted at trial that
    they had lied under oath at their plea proceedings by stating that the facts
    implicating the appellant in their agreed statements of fact were true; and,

·

the admitted lies of Vijayakumar to the police and Ravindrans
    admission that he had lied while testifying at the preliminary inquiry.

[58]

I
    recognize, as this Court has said in
R. v. Zebedee
(2006), 81 O.R.
    (3d) 583, at paras. 93-95, that a trial judge is entitled to take a functional
    approach to the
Vetrovec
exercise and is not required to detail all
    the characteristics that cast doubt on the testimony of the unsavoury witness.
    Nonetheless, the warning must provide sufficient detail to drive home why the
    evidence requires special scrutiny in the circumstances; otherwise it does not
    serve its intended purpose, in my opinion.  Here, there was more than one
    compelling reason underlying the need for scrutiny that should have been
    highlighted for the jury.

[59]

Ms.
    Kozlowski, for the Crown, relied heavily on this Courts decision in
Zebedee
.
    There, the complainants  long-time users and purchasers of cocaine from some
    of the accused  received enforcement-type beatings for non-payment of drug
    debts.  The trial judge gave a
Vetrovec

warning highlighting
    the criminal backgrounds and lifestyle of the complainants but did not mention
    a number of other characteristics that could have cast doubt on the truth of
    the complainants evidence.  These included a benefit that one of the
    complainants and his girlfriend had received in connection with certain
    unrelated fraud charges and the fact that the same complainant was seeking to
    recover money from the Criminal Injuries Compensation Board as a result of the
    beatings.  The complainants had also made prior inconsistent statements.

[60]

On
    appeal, this Court concluded that, while the trial judge could have mentioned
    all these and other details, he was not obliged to do so.  The frailties  in
    addition to the complainants criminal antecedents  would have been
    self-evident to the jury and the jury, exercising its collective intelligence
    and common sense, would  have been alive to them [and] appreciated their
    significance (at para. 95).  As well, there was strong independent evidence
    confirming the complainants testimony and defence counsel had emphasized and
    re-emphasized all of the characteristics that called the complainants evidence
    into doubt, making it unnecessary for the trial judge to turn over the same
    factual ground that counsel had tilled and re-tilled (at para. 95).

[61]

But
    this case is not
Zebedee
.

[62]

For
    one thing, the independent evidence confirming the testimony of the
    complainants in
Zebedee
was quite compelling.  Here, while there was
    some evidence confirming the stories of the former co-accused, the confirmatory
    evidence tying the appellant to the crimes was not particularly strong.
[3]

[63]

More
    significantly, however, this case involves the jurys ability to assess the
    reliability of
K.G.B.
statements, admitted into evidence for the
    truth of their contents and made or confirmed under oath or affirmation by
    co-conspirators in exchange for advantageous guilty pleas and other benefits.
Zebedee
did not.  The law has long recognized the enhanced untrustworthiness of such
    statements.  As stated above, the Supreme Court of Canada recently affirmed in
Youvarajah
,
    at para. 64 (albeit in the context of threshold reliability):

The administration of justice would not be enhanced in
    permitting admissions made by a co-accused in his own interest, as part of a
    plea bargain for a conviction of a lesser crime and favourable sentence, to be
    used against a co-accused, in circumstances where the reliability of the
    statements cannot be adequately tested.

[64]

Here,
    I have concluded that the statements met the test for threshold reliability,
    amongst other things, for the very reason that they could be adequately tested
    on cross-examination.  The inbuilt danger of their unreliability remained,
    however, and was an important factor in the assessment of ultimate
    reliability.  I am not persuaded that the legal nuances underlying that
    inherent unreliability would be self-evident and, therefore, that a lay jury
    exercising its common sense  however intelligent  would be able readily to
    appreciate the significance of factors bearing on the
K.G.B.
analysis for those purposes without careful legal guidance

[65]

The
    Crowns case against the appellant rested almost entirely on the testimony of these
    witnesses.  As mentioned above, because they recanted their earlier statements
    implicating the appellant, the jurors could only have convicted the appellant
    if they accepted some or all of those earlier
K.G.B.
statements.  Although
    I have concluded that the
K.G.B.
statements were admissible for
    purposes of threshold reliability, the question of their ultimate reliability
    was quite another matter.  Their assessment for that purpose warranted a
    healthy skepticism.

[66]

Making
    the witnesses dishonest history the focal point of the explanation why their
    testimony required careful scrutiny was not sufficient in these circumstances,
    in my opinion.  While that background undoubtedly provided a basis for
    disbelieving their testimony, the most compelling reason for mistrusting what
    they had said in their
K.G.B.
statements was their very strong
    motivation to lie by implicating the appellant in order to obtain the
    considerable benefits of their guilty pleas, as outlined above.

[67]

Respectfully,
    in my view, the trial judges failure to draw this to the jurys attention in
    the context of the
Vetrovec
caution rendered the caution inadequate to
    serve its intended purpose.

[68]

I
    do not think it is an answer to say defence counsel highlighted these details
    in closing or that the trial judge referred to them in her outline of the
    defence position.  It is one thing for defence counsel to make the arguments
    and for the trial judge to comment on those arguments; the jury accepts them as
    arguments.  It is another thing for the trial judge to place those frailties in
    the context of a warning about the danger of convicting on the unconfirmed
    evidence of an unsavoury witness.  In the circumstances of this case, it was
    the latter that was called for.

[69]

Nor
    do I think that these frailties in the
Vetrovec
caution can be
    overcome by application of the curative proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.
In view of what must have been the
    central nature of the recanted testimony in the jurys decision to convict, the
    error was not harmless or minor, nor was the case so overwhelming that a
    properly instructed jury would inevitably have convicted regardless of the
    error:
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53.

Disposition

[70]

For
    the foregoing reasons, I would allow the appeal and order a new trial.

Released: October 22, 2014
(J.L.)

R.A.
    Blair J.A.

I
    agree, John Laskin J.A.

I
    agree, E.A. Cronk J.A.

[1]

Vetrovec v. The Queen
, [1982] 1 S.C.R. 811.

[2]
The threshold reliability of Vijayakumars prior videotaped statement was
    ultimately conceded by the defence at trial.

[3]
The appellant also attacked the
Vetrovec
warning on the basis that the
    trial judge had erred in telling the jurors how to look for confirmatory
    evidence and that she had erred in instructing them that they could use the
    evidence of one
Vetrovec
witness to confirm the evidence of another
    where there was evidence of collaboration.  For the reasons outlined above, I
    do not think it is necessary to address these grounds of attack.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Le, 2014 ONCA 752

DATE: 20141028

DOCKET: C58701

Sharpe, LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phuong Ba Le

Appellant

Jill R. Presser, for the appellant

Emilie Taman, for the respondent

Heard: October 24, 2014

On appeal from the sentence imposed on February 3, 2014
    by Justice
Peter Tetley
of the Ontario Court of
    Justice.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellant that the sentence of 5 years in the
    circumstances of this case offends the parity principle.

[2]

The trial judge explicitly rejected the Crowns position that the
    appellant was part of a criminal organization, and found that at most he was a
    trusted courier.

[3]

The appellants co-accused, the recipient of the drugs, was found to be
    an active drug trafficker with a criminal record. He received a sentence of 4
    years for the same offence.

[4]

The appellant is a youthful first offender and the fresh evidence
    indicates he is doing well in the institution.

[5]

In these circumstances, we grant a leave to appeal, allow the appeal and
    substitute the sentence of 42 months.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Olumide, 2014 ONCA 712

DATE: 20141020

DOCKET: C59279

Feldman, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ade Olumide

Appellant

Ade Olumide, appearing in person

Jennifer Woollcombe, for the respondent

Heard: October 6, 2014

On appeal from the judgment of Justice
Julianne
    A. Parfett
of the Superior Court of Justice, dated August 18, 2014, dismissing
    the appellants application for

mandamus
.

ENDORSEMENT

[1]

Mr. Olumide appeals the summary dismissal of his
mandamus

application
    in the Superior Court.  He had sought to overturn the Crowns decision to stay
    his private prosecution of Kathleen Wynne.

[2]

Section 579 of the
Criminal Code
gives the Attorney General the
    authority to direct a stay of proceedings at any time.  The discretion to do so
    is reviewable only in the event of abuse of process.  There is a presumption of
    prosecutorial good faith: see
Krieger v. Law Society (Alberta)

2002
    SCC 65 and
R. v. Nixon

2011 SCC 34.  The appellant has the onus
    of proving an abuse of process in the exercise of prosecutorial discretion.

[3]

Mr. Olumide alleged that the Attorney General is in an inherent conflict
    of interest and this constitutes an abuse of process.  The motion judge found
    that there was no evidence of abuse of process.  Absent proof of an abuse, the
    discretion is not subject to review by the court:
Campbell v. Ontario

(A.G.) (1987), 35 C.C.C. (3d) 480 (Ont. C.A.), leave to appeal refused, [1987]
    S.C.C.A. No. 202. There is no evidence to point to an abuse of process.

[4]

We therefore see no basis to allow this appeal.

[5]

The appeal is dismissed.

K.
    Feldman J.A.

Gloria
    Epstein 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, 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. R.B., 2014 ONCA 722

DATE: 20141020

DOCKET: M44021, C59056

Hourigan J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

R. B.

Applicant

Jill Makepeace, for the applicant

Hannah Freeman, for the respondent

Heard: October 17, 2014

On application for judicial interim release pending appeal from the convictions
    entered on June 10, 2014 and the sentence imposed on October 16, 2014 by
    Justice R.D. Cornell of the Superior Court of Justice, sitting without a jury.

Hourigan J.A.:

[1]

The applicant was convicted of one count of sexual assault and one count
    of sexual interference. He brings this application seeking bail pending his
    appeal.

BACKGROUND FACTS

[2]

The applicant is 39 years of age and resides in Sudbury. He has four
    children, including one son who is severely disabled and under his care.

[3]

On or about August 24, 2010, the applicant was charged with sexual
    assault and sexual interference in relation to allegations made by a three-year
    old complainant, who is the daughter of a friend of his then girlfriend (the
    first charges).

[4]

On or about May 10, 2011, he was charged with sexual assault and sexual interference
    regarding a complainant who was between four and six years of age at the time
    of the alleged assaults and who was the daughter of a woman with whom he was
    residing (the second charges).

[5]

The second charges came to trial first and the applicant was convicted.
    He was sentenced to 28 months imprisonment on May 20, 2014.

[6]

On May 29, 2014, by order of Justice Juriansz, he was released on bail
    pending appeal. That bail order was varied by Justice Benotto on July 25, 2014.

[7]

On June 10, 2014, the applicant was convicted of the first charges. He
    was sentenced on October 16, 2014 to four years imprisonment. He now seeks
    bail pending appeal in relation to those convictions.

ANALYSIS

(a)     The Test

[8]

Pursuant to s. 679(3) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, the applicant has the onus of establishing that:

(i) his appeal is not
    frivolous;

(ii) he will surrender in
    accordance with the terms of the release order; and

(iii) his detention is not
    necessary in the public interest.

[9]

The Crown acknowledges that the appeal is not frivolous and concedes,
    therefore, that the applicant has met his onus on the first part of the test.

[10]

The
    Crown also concedes that there is no issue that the applicant will surrender in
    accordance with the terms of the release order.

(b)     The Public Interest

[11]

The
    sole issue for determination on this application is whether the applicant has
    met his onus of establishing that detention is not necessary in the public
    interest.

[12]

Justice
    Watt reviewed the governing principles regarding the public interest criterion
    in
R. v. Manasseri
, 2013 ONCA 647, 313 O.A.C. 55, at paras. 40-43:

The public interest criterion in section 679(3)(c) requires a
    judicial assessment of the need to review the conviction leading to
    imprisonment, on the one hand, and the need to respect the general rule of immediate
    enforceability of judgments, on the other:
R. v. Farinacci
(1993), 86
    C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires
    that judgments be enforced. The public interest may thus require that a person
    convicted of a very serious offence, like second degree murder, who advances
    grounds of appeal that are arguable but weak, be denied release pending
    appeal:
Farinacci
, at p. 48.

But public confidence in the administration of justice also
    requires that judgments be reviewed, and that errors, if any, be corrected,
    especially where an appellants liberty is at stake:
Farinacci
,
at p. 48.

The public interest ground assumes a place of greater
    prominence in cases in which an applicant has been convicted of a very serious
    offence and faces the prospect of a lengthy period of incarceration:
R. v.
    Baltovich
(2000), 144 C.C.C. (3d) 233 (Ont. C.A.  Chrs), at para. 19;
R.
    v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a
    result, release of an applicant pending appeal of a murder conviction is rare:
Baltovich
, at para. 20.  But where the grounds of appeal are strong
    and a serious concern about the accuracy of the verdict emerges from the
    materials filed, the public interest may favour release:
Baltovich
,
    at para. 20;
R. v. Parsons
(1994), 30 C.R. (4
th
) 169 (Nfld.
    C.A.), at pp. 186-187.

[13]

With
    these principles in mind, I turn to a consideration of the public interest
    criterion in the circumstances of the present case.

(
c
)
The
M
erits

[14]

In
    oral submissions, counsel for the applicant advanced two principal arguments
    regarding the merits of the appeal.

[15]

First,
    she submitted that the trial judge erred in rejecting the evidence of the
    applicant, without any assessment or evaluation of his testimony, simply on the
    basis that he found the complainant to be credible. It is the applicants
    position that the trial judge had to do more to explain why he rejected the
    applicants evidence and that he was not permitted to turn the trial into a
    credibility contest.

[16]

In
    making this argument, counsel distinguished
R. v. J.J.R.D.
(2006), 215
    C.C.C. (3d) 252 (Ont. C.A.), which the trial judge relied on for the proposition
    that an outright rejection of an accuseds evidence based on a reasoned
    acceptance beyond a reasonable doubt of the truth of conflicting evidence is a
    valid explanation for such rejection. Counsel submitted that in
R. v.
    J.J.R.D
, there was evidence corroborating the allegations in the form of
    diary entries, whereas in the present case, there is no corroborating evidence.

[17]

In
    my view, this is a weak ground of appeal.

[18]

I
    note that the trial judge referred to
R. v. Williams
, 2010 ONSC 184, and
    explicitly instructed himself that the trial should not devolve into a
    credibility contest. In addition, he found that the case required the
    application of the principles enunciated in
R. v. W. (D.)
[1991] 1
    S.C.R. 742.

[19]

I
    am also not satisfied that
R. v. J.J.R.D
is distinguishable. It cannot
    be said that there is no corroborating evidence in the present case. For
    instance, the handwritten drawing by the complainant of the accuseds penis is
    corroborative. So too is the accuseds statement, made to the complainants
    mother while discussing the police investigation, that he wonders if he does
    things that he does not remember because he is not conscious. In addition, the
    trial judge found that the similar act evidence related to the first charges.

[20]

The
    second principal argument made regarding the strength of the appeal is not
    found in the Notice of Appeal. Counsel submitted orally that the trial judges
    reference to the fact that the complainants version of events did not waver at
    any point  from her disclosure, to her police video statement, to her
    testimony at the preliminary inquiry, to her evidence at trial  was an
    impermissible use of prior consistent statements.

[21]

In
    my view, the applicant has an arguable position on this issue, as it does not
    appear from the trial judges reasons that this reference was tied to the issue
    of identification and no allegation of recent fabrication had been made.
    However, I am not satisfied that this isolated reference in the trial judges
    very thorough reasons measurably strengthens what is otherwise a weak appeal.

(d)     Public Interest Balancing

[22]

In
    my view, as expressed above, the applicant has a weak appeal. I balance this view
    against the fact that the accused was convicted of serious crimes against vulnerable
    young children and that the applicant has received a fairly lengthy sentence.

[23]

I
    find that the combination of convictions for serious offences, a fairly lengthy
    sentence, and a weak appeal, demonstrate that the immediate enforcement of the
    judgement below should be of paramount concern. Therefore, the public interest
    balance required by
Farinacci
favours immediate enforcement of the
    sentence rather than judicial interim release.

DISPOSITION

[24]

For
    these reasons, the applicant has not met his onus under s. 679(3) of the
Criminal
    Code
and the application is dismissed accordingly.

C. William Hourigan 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. S.M., 2014 ONCA 728

DATE: 20141021

DOCKET: C56946

Laskin, Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

S.M.

Respondent

Ian Bulmer, for the appellant

David Humphrey and Cody Cornale, for the respondent

Heard and released orally: October 15, 2014

On appeal from the acquittal entered on March 27, 2013 by
    Justice Giselle M. Miller of the Superior Court of Justice.

ENDORSEMENT

[1]

The Crowns principal ground of appeal is that the trial judge erred by
    failing to give effect to the on or about language in the indictment.  We do
    not agree.  Although the trial judge did not specifically refer to these words,
    her reasons show that she considered them.  In substance she concluded that in
    the light of the way the case was presented, an expansive interpretation of the
    words on or about would work an injustice.  There was an ample basis to
    support her conclusion.

[2]

The defence put forward an alibi for the actual date specified in the
    indictment  June 25, 2010.  The Crown had every opportunity to ask the
    complainant when the incident took place or even whether it took place on a
    date other than June 25.  Yet the Crown did neither.  And the Crown had every
    opportunity to test the respondents denial by asking about another date.  Yet
    the Crown did not do so.  Finally, the Crown did not seek to amend the
    indictment until closing submissions.  Had it asked any of these questions or
    sought an amendment earlier, the defence may well have been different.

[3]

The context is critical in assessing on or about language in an
    indictment.  Here, given the way the case was presented, to expand the
    timeframe of the indictment in the way the Crown contends would be unfair.

[4]

The Crowns alternative argument is that the trial judge erred by
    refusing to amend the indictment.  We do not accept this argument.  We agree
    with the trial judge that the Crowns request to amend only in closing
    submissions was too late, and to then grant the amendment would have prejudiced
    the respondent.

[5]

Accordingly, the appeal is dismissed.

John Laskin J.A.

E.E. Gillese
    J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sethi, 2014 ONCA 701

DATE: 20141015

DOCKET: C58171 and C58170

Simmons, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Manjit Sethi and Waseem Iqbal

Appellants

Ravin Pillay, for the appellant Manjit Sethi

Faisal Mirza, for the appellant Waseem Iqbal

Joseph Selvaratnam, for the respondent

Heard: October 14, 2014

On appeal from the judgment of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated January 8, 2014, dismissing the
    application for
certiorari
made to Justice Anne-Marie Hourigan of the
    Ontario Court of Justice, dated January 18, 2013, seeking to quash the
    committal for trial.

APPEAL BOOK ENDORSEMENT

[1]

At paragraphs 61, 62, 65 and 66 of his reasons, the
certiorari
judge referenced the findings of the preliminary inquiry judge which, in his
    view, demonstrated that the circumstantial evidence made for the logical and
    reasonable inference drawn by the preliminary inquiry judge namely, that there
    was sufficient evidence to commit on counts 1 to 17.  We agree with that
    conclusion.

[2]

Despite the argument of the appellants, we also agree with the finding
    of the
certiorari
judge that given the totality of the evidence, it
    would have been an artificial exercise to attempt to parse out what contents
    were constructively possessed by the appellants.  We agree with the
certiorari
judge that based on the totality of the evidence, it was open to the preliminary
    inquiry judge to draw the inference that the appellants had possession of the
    entire contents of the stash house.

[3]

While other inferences may also have been available on the evidence, we
    see no error in the
certiorari
judges conclusion that the inferences
    drawn by the preliminary inquiry judge were available.

[4]

The appeal is therefore dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stewart, 2014 ONCA 715

DATE: 20141020

DOCKET: C58081

Simmons, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

June Marie Stewart

Appellant

Stacey M. Nichols, for the appellant

Nathan Kruger, for the respondent

Heard: October 16, 2014

On appeal from the sentence imposed on December 11, 2013 by
    Justice Alan D. Cooper of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to one count of fraud over $5,000.  After
    several adjournments to permit her to make restitution did not lead to that
    result, on December 11, 2013, she was sentenced to 18 months imprisonment and
    36 months probation with a condition that she pay restitution of $84,336.41.
    She served 12 days before being released on bail pending appeal.

[2]

In our view, this sentence appeal should be allowed.  The sentencing
    judge gave no reasons therefore the sentence imposed is not entitled to
    deference.  The appellant is 76 years old and in poor health.  After continuing
    attempts to sell her house, she has now made full restitution.  Although this
    was a serious offence involving a breach of trust against a long-time friend
    and the appellant has a related but dated record, the Crowns position at the
    time of sentencing had she made restitution would have been for a conditional
    sentence.  In light of the fresh evidence as to restitution and her ongoing
    health issues, we consider that an appropriate sentence.

[3]

Leave to appeal sentence is granted and a conditional sentence of 15
    months is imposed on terms attached.


COURT OF APPEAL FOR ONTARIO

CITATION: R v. Trellis, 2014 ONCA 753

DATE: 2014129

DOCKET: C56743

Sharpe, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Uroy Trellis

Appellant

Vincenzo Rondinelli, for the appellant

Michael Fawcett, for the respondent

Heard and released orally: October 22, 2014

On appeal from the conviction entered on August 9, 2012
    and the sentence imposed on October 19, 2012 by Justice
J. Bryan
    Shaughnessy
of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

We do not agree that the jurys verdict was unreasonable.

[2]

In our view, the evidence was sufficient to allow a jury to conclude
    beyond the reasonable doubt, that the appellant had possession of the firearm.
    That evidence included the fact that the gun was thrown from a room occupied by
    the appellant, that the appellant was in the room close to the time the gun was
    thrown; that the other male in the room with the appellant had left the room
    before the gun was thrown; and that wedged inside the safety of the gun was a
    coarse black hair. Mitochondrial DNA analysis of the hair and of a sample
    obtained from the appellant indicated that the possibility of a coincidental
    match with another individual was, at best, only one in a hundred and forty five.

[3]

Finally, we are entitled to take into account in assessing the reasonableness
    of the jurys verdict the fact that the appellant did not testify at trial.

[4]

The appellant raises other grounds in his factum.  Those grounds were
    not abandoned, but they were not pressed into our argument. We see no merit in
    them.

[5]

Accordingly, the appeal from conviction is dismissed.

[6]

With respect to the sentence appeal, in light of the appellants dated
    record and positive references, he appears to be a likely candidate for early
    release.

[7]

Neither the trial judge nor the appellants trial counsel had the
    benefit of the
R. v. Summers
decision from this Court or from the
    Supreme Court of Canada.

[8]

In light of that decision, we would grant enhanced credit for pre-trial
    custody at 1.5, and thereby reduce the sentence by 2 months.

[9]

Accordingly, a leave to appeal sentence is granted, and the sentence appeal
    is allowed, and the sentence is varied by reducing the term of imprisonment by
    2 months.

Robert
    J. Sharpe J.A.

C.
    William Hourigan J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Turner, 2014 ONCA 717

DATE: 20141020

DOCKET: C58259

Simmons, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marvin Turner

Applicant/Appellant

Anthony La Bar, for the appellant

Hannah Freeman, for the respondent

Heard: October 16, 2014

On appeal from the sentence imposed on July 23, 2012 by
    Justice Michael A. Code of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown concedes this appeal based on the companion case of
R.
    v. Curry
in which this court found an error in the sentencing judges
    treatment of the pre-sentence custody.
We agree with
    this concession.  Accordingly, the sentence of 46 months imprisonment is varied
    to 36 months imprisonment based on varying credit for pre-sentence custody from
    20 months to 30 months.  All other terms of the sentence imposed to remain the
    same.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Viscomi, 2014 ONCA 765

DATE: 20141031

DOCKET: M44253

Strathy C.J.O. (In Chambers)

IN THE MATTER OF an application pursuant to s. 20(1) of
    the
Mutual Legal Assistance in Criminal Matters Act
, R.S.C. 1985, c. 30
    (4th Supp.), for an Order to send evidence gathered in Canada for use by
    authorities in the United States of America in their investigation and
    prosecution of Marco Viscomi

BETWEEN

The Attorney General for Ontario

and

The Attorney General of Canada

Respondents

and

Marco Viscomi

Applicant

Joseph S. Wilkinson, for the applicant

Robert W. Hubbard, for the respondent the Attorney
    General of Ontario

Nancy Dennison, for the respondent the Attorney General
    of Canada

Heard: October 16,
    2014

Motion for leave
    to appeal from the order of Justice M.A. Code of the Superior Court of Justice,
    dated September 11, 2014, with reasons reported at: 2014 ONSC 5262.

Strathy C.J.O.:

[1]

The applicant seeks leave to appeal from an order dismissing his
    application to re-open a sending order made under s. 20(1) of the
Mutual
    Legal Assistance in Criminal Matters Act
,
    R.S.C. 1985, c. 30 (4
th
Supp.)

(
MLACMA
).
    For the reasons that follow, the application for leave to appeal is dismissed.

[2]

The applicant is charged in the United States with sexual coercion of a
    minor and transporting visual depictions of sexually explicit conduct involving
    a minor by means of a computer.

[3]

The application judge heard the
MLACMA
proceedings
ex parte
on November 6, 2012, following which he granted two gathering orders, and on
    March 12, 2013, at which time he granted two sending orders.

[4]

An extradition hearing was held on April 11 and 12, 2013 and resulted in
    a committal order. The applicant has appealed to this court from that order.

[5]

On October 17, 2013, the Minister advised the applicants lawyer of his
    reasons for surrendering the applicant to the U.S. authorities. His letter made
    specific reference to the
MLACMA
orders and informed the applicant
    that the materials had been sent to the United States.

[6]

The applicant did not seek leave to appeal the
MLACMA
orders.

[7]

The applicant then filed a Notice of Application in this court seeking
    judicial review of the Ministers surrender decision.

[8]

On May 9, 2014, more than six months after he became aware of the
    orders, the applicant brought an application to re-open the
MLACMA
proceedings.
    The application judge characterized it, correctly in my view, as a
Wilson
application.
[1]
He held that the court had inherent jurisdiction to review its own orders on an
inter partes
basis. He noted that the review was not a hearing
de
    novo
. The issue was whether, in light of the more complete record before
    him, there remained some basis on which the original orders could have been
    made. He concluded that there had been no material non-disclosure in the
    original
ex parte
proceedings and dismissed the application to re-open
    them.

[9]

Not having sought leave to appeal the
MLACMA
orders, the
    applicant now seeks leave to appeal the order in the
Wilson
application.
    The respondents assert this court has no jurisdiction to hear an appeal from that
    order.

[10]

This
    jurisdictional issue turns on the interpretation of s. 35 of
MLACMA
,
    which provides:

An appeal lies, with leave, on a
    question of law alone, to the court of appeal, within the meaning of section 2
    of the
Criminal Code
,
    from any order or decision of a judge or a court in Canada
made under this Act,
if the application for leave to
    appeal is made to a judge of the court of appeal within fifteen days after the
    order or decision.

[11]

The
    question is whether the order of the application judge was made under
MLACMA.
The simple answer is that it was not. No provision of
MLACMA
provides jurisdiction to conduct a
Wilson
review of a gathering or
    sending order. As recognized by the application judge, this review was conducted
    pursuant to the inherent jurisdiction of the court to review its own
ex
    parte
order.

[12]

It
    is well-settled that there is no appeal from a
Wilson
application:
R.
    v. Meltzer
, [1989] 1 S.C.R. 1764, at pp. 1773-1775;
R. v. Heikel
,
    [1989] 1 S.C.R. 1776, at p. 1779
; R. v. Garofoli,
[1990] 2 S.C.R. 1421,
    at p. 1431
.

[13]

I
    conclude this court has no jurisdiction to hear an appeal from the
Wilson
order.
    Accordingly, there is no basis on which to grant leave to appeal. The sending
    orders were subject to two avenues of review  an appeal under s. 35 of
MLACMA
or a
Wilson
application pursuant to the courts inherent
    jurisdiction. The avenues were concurrent, but distinct. The applicant did not
    seek leave to appeal the sending orders. Those orders were fully executed and
    the material in question is in the hands of the United States authorities.

[14]

MLACMA
is intended to be an expeditious means of discharging Canadas treaty
    obligations. That purpose would not be achieved by providing an appeal from an
    interlocutory order refusing to set aside an order from which a right of appeal
    was available but was not exercised.

[15]

The
    application for leave to appeal is therefore dismissed.

[1]

R. v. Wilson
, [1983] 2 S.C.R. 594
.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Witen, 2014 ONCA 694

DATE: 201401009

DOCKET: C55620

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Witen

Appellant

James Lockyer and Richard Posner, for the appellant

Ivan S. Bloom, Q.C., Lisa Csele and Sabrina Montefiore,
    for the respondent

Heard: September 22, 2014

On appeal from the convictions entered on August 29, 2011
    and the sentence imposed on June 27, 2012 by Justice Peter B. Hambly of the
    Superior Court of Justice.

ENDORSEMENT

[1]

The appellant, a tax preparer, was convicted of two counts of fraud.  Each
    count alleged that the appellant helped clients make false expense claims in
    their tax returns.  The frauds cost the public purse in excess of $1,000,000.
    The appellant received a jail sentence of three years and a fine of $448,000.
    He appeals his conviction and sentence.

[2]

At trial, the appellant unsuccessfully moved for a stay, claiming that
    his right to a trial within a reasonable time as guaranteed by s. 11(b) of the
Charter
had been infringed.  He then sought to exclude certain documents from evidence
    under s. 24(2) of the
Charter
,
claiming that the authorities had seized the documents from his office and home
    in violation of his rights under s. 8 of the
Charter
.  The trial judge
    dismissed the motions.

[3]

The trial proceeded on the Crowns unchallenged statement of facts.  The
    facts fully justify the convictions.

[4]

On appeal, the appellant renews his s. 11(b) and s. 8 arguments.  He
    also submits that the trial judge should have imposed a conditional sentence.
    We would not give effect to any of these arguments.

The Section 11(b) Claim

[5]

The trial proceedings in this matter have a long and protracted
    history.  For the purposes of the appeal, we will assume that counsel for both
    the appellant and the Crown are correct in identifying the relevant s. 11(b) period
    as between November 2005 (when the first charges were laid) and late March 2011
    (the anticipated start of the second trial).  On its face, 65 months is an
    excessive length of time to bring a case to trial and calls for a rigorous s.
    11(b) analysis.

[6]

We do not propose to review each of the court appearances and examine
    each of the periods addressed by the trial judge.  Nor is there any need to restate
    well-settled law.  We will focus on the periods the appellant emphasized in his
    submissions.

November 5, 2005 to June 20, 2007

[7]

The appellant was initially charged with offences under the
Income
    Tax Act
.  Those charges arose out of tax returns the appellant prepared
    for two individuals and their company, Cantec Manufacturing Inc.  In June 2007,
    the Crown withdrew the income tax charges and charged the appellant with five
    counts of fraud. The appellant was eventually convicted of two of those counts.
    The first charge was an expanded version of the income tax charges and involved
    many of the appellants clients.  The second charge, referred to as the false
    childcare expenses charge, was factually distinct from the income tax charges.

[8]

The appellant argues that the trial judge should have counted nearly the
    entire November 5, 2005 to June 20, 2007 period (19.5 months) against the Crown
    in his s. 11(b) analysis.  Counsel submits that the Crown had no intention of
    proceeding against the appellant on the
Income Tax Act
charges but
    laid those charges only to hold the appellant pending the completion of its
    investigation and the laying of the fraud charges.

[9]

The evidence offers no support for this submission.  The few references
    in the transcript on which the appellant relies do no more than indicate that,
    when the initial
Income Tax Act
charges were laid, a very broad
    investigation into the appellants conduct of his tax-related business was
    underway.  To jump from a finding that the authorities continued to investigate
    the appellant to the conclusion that the Crown never intended to prosecute the
    initial charges is rank speculation.

[10]

Like
    the trial judge, we would assign most, if not all, of the 19 months to the
    cases inherent time requirements, the defences conduct, and mutual requests
    for adjournments to pursue resolution discussions.  We find no support for the
    appellants contention that the Crowns conflict of interest motion with
    respect to counsel for his co-accused somehow delayed the appellants case.
    There is no reason to think that the case would have made any faster progress
    had the Crown abandoned its ultimately needless conflict of interest motion.  We
    note that the appellants first counsel removed himself from the record around
    April 2006 and new counsel did not formally appear on the record until August
    2006.  In August, new counsel indicated he needed time to review the disclosures
    which consisted of approximately 20,000 documents.  No trial dates were going
    to be set until counsel had the opportunity to review the disclosure whether or
    not the Crown proceeded with its conflict of interest motion.

June 20, 2007 to July 28, 2008

[11]

The
    trial judge attributed four and a half months of this 13 month period to the
    Crown.  The appellant submits that the trial judge should have attributed eight
    and a half months of the delay to the Crown.  The appellant contends that given
    the prior charges under the
Income Tax Act
and the lengthy investigation
    undertaken by the authorities, it should not have taken the Crown more than a
    very short time to make whatever disclosure the new charges required.

[12]

We
    begin with the observation that an allocation of an additional four months to
    the Crown would not affect the ultimate resolution of the s. 11(b) claim.  In
    any event, we do not agree with the appellants characterization of the new
    charges impact on the Crowns disclosure obligations.  The new charges greatly
    expanded the material to be disclosed.  The investigation also triggered
    certain third party reassessments, leading to third party production of
    documents that were, in some cases, disclosable.  This process necessarily took
    some time. The four months allowed by the trial judge for the inherent time
    requirements of the case were well within the appropriate range.

[13]

In a related submission, the appellant argues that the trial judge
    wrongly found that the defence waived four months of this period.  The
    appellant submits that the waiver extended to only one month.  Crown counsel
    accepts this interpretation but argues that some of the remaining three months
    should fall under the inherent time requirements because of the added
    disclosure obligations.  We agree.  In any event, a three month adjustment in
    the s. 11(b) arithmetic would have no effect on the outcome.

March 23, 2009 to March 28, 2011

[14]

The
    appellant was committed for trial in March 2009 and first appeared in the
    Superior Court on April 24, 2009.  His second trial was to begin in March
    2011.  This two year period was not a focus of the appellants s. 11(b)
    submissions.  We refer to it because it is both a significant amount of the
    overall period and is explained by an unusual and unfortunate event.

[15]

The
    appellants trial began in Superior Court on October 13, 2009 with pre-trial
    motions and proceeded intermittently through conviction toward sentencing until
    September 7, 2010.  On that day, the senior regional judge declared a mistrial
    on account of the trial judges illness.  He also determined that a new trial,
    rather than the appointment of another judge, would best serve the interests of
    justice.  No one takes issue with that ruling and everyone accepts that the
    period lost on account of the trial judges illness and the need to effectively
    re-do the trial must be neutral in the s. 11(b) analysis.  There is some
    dispute as to the calculation of that period.  We think it runs from the start
    of motions in the first trial on October 13, 2009 to the declaration of
    mistrial on September 7, 2010, about 13 months later.

Prejudice

[16]

The appellant led evidence that his wife suffers from Parkinsons
    disease and that in the years during which these matters were before the
    courts, she relied more and more on the appellant to assist her in day-to-day
    living.  Mrs. Witen filed an affidavit outlining the impact of the delay on her
    and the appellant.

[17]

The trial judge rejected the claim that the impact of the delay on the
    appellants family life and his and his wifes ability to cope with her worsening
    disability could constitute prejudice.  This seems a somewhat narrow view of
    the concept of prejudice.  Coping with serious health problems, like
    Parkinsons, is difficult in any circumstance.  One could accept that the
    difficulty is exacerbated when serious criminal charges hang over the head of
    the able-bodied person in the relationship for a prolonged period.  That said,
    the prejudice obviously ranks below interference with an individuals liberty
    or the right to a fair trial.  Even accepting some prejudice from the delays
    impact on family well-being, that prejudice does not alter the s. 11(b) result.

The Section 8 Claim

[18]

The
    authorities executed two sets of search warrants, the first in February 2004
    and the second in February 2006.  In both cases, the appellants home and
    office were searched.

[19]

As
    we understand the appellants position, he challenges the constitutionality of
    the 2004 search.  He submits that while the search warrants were properly
    issued, the authorities seized documents that were neither within the
    description of the documents to be seized under the warrant nor subject to
    seizure under the expanded seizure powers in s. 489 of the
Criminal Code
.
    The appellant does not directly attack the constitutionality of the 2006
    seizures but does argue that the close connection between the 2006 seizures and
    the unconstitutionally obtained documents in the 2004 seizures renders the
    product of the 2006 seizure inadmissible under s. 24(2) of the
Charter
.

[20]

The
    court did not require Crown submissions on the seizure-related issues.  We will
    address the appellants arguments only briefly.

[21]

The
    trial judge ultimately concluded that the documents seized from the appellants
    home and office fell within the warrants description of the documents to be
    seized.  He also determined that where a book (for example, a deposit book)
    contained both documents described in the warrant and documents not described
    in the warrant, the authorities were entitled to seize the entire book.

[22]

By
    way of alternative finding, the trial judge went on to conclude that even if
    the challenged documents did not fall within the language in the warrant, they
    were seizable under s. 489(1)(c) of the
Criminal Code
.  That provision
    allows a person executing a warrant to seize any thing that the person
    believes on reasonable grounds will afford evidence in respect of an offence
    against this or any other Act of Parliament.  He did, however, find that the
    so-called plain view doctrine could not justify the seizures.

[23]

Section
    489(1)(c) speaks to any offence and is not limited to the offences for which
    the warrant was granted.  It requires belief on reasonable grounds that the
    seized material will afford evidence in respect of an offence.  We do not
    read the trial judges reference to potential relevance as setting some lower
    standard.  The trial record provided ample basis to conclude that the person
    seizing the material believed on reasonable grounds that the seized documents
    would afford evidence of a criminal fraud.

[24]

As we are satisfied that the material was properly seized under s.
    489(1)(c), we need not consider whether it also fell within the language of the
    warrant.  Nor need we address the applicability of the plain view doctrine.
    Finally, even if some of the documents could be said to fall outside of s.
    489(1)(c)s grant, we see no case for excluding any of the documents under
    s. 24(2) of the
Charter
.  The seized documents were properly
    admitted.

The Sentence Appeal

[25]

The sentence is well within the accepted range of sentence for this kind
    of crime.  This was a serious fraud perpetrated over a lengthy period against
    the public purse by an individual who used his expertise to undermine the
    efficacy of the self-reporting income tax system.  We would not interfere with
    the sentence.

Doherty J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rana v. Unifund Assurance Company, 2014 ONCA 711

DATE: 20141020

DOCKET: C58392

Epstein, van Rensburg and Benotto JJ.A.

BETWEEN

Kris Rana

Plaintiff (Appellant)

and

Unifund Assurance Company

Defendant (Respondent)

Kris Rana, appearing in person

Evelyn Ten Cate, for the respondent

Heard: September 26, 2014

On appeal from the judgment of Justice
Frances
    P. Kiteley
of the Superior Court of Justice, dated January 23, 2014.

ENDORSEMENT

[1]

The appellant appeals the order requiring her to file a fresh Statement
    of Claim.  She submitted that the motion judge erred in three ways:

1.

by refusing her request to transfer the claim from the Small Claims
    Court to the Superior Court;

2.

by creating a reasonable apprehension of bias; and

3.

by making no order as to costs.

[2]

The motion judge was correct to require a fresh Statement of Claim in
    the Superior Court.  The appellants Small Claims Court Claim was improper
    because it included references to settlement discussions; there were procedural
    issues that were avoided with a fresh claim; and the appellant is not in any
    way prejudiced.  The Court has jurisdiction over its own process and it was
    within the discretion of the motion judge to make the order she did.

[3]

There is nothing in the record to create the apprehension of bias.

[4]

The motion judge is entitled to deference on the issue of costs.  In our
    view, it was appropriate to make no order as to costs.  Therefore, leave to
    appeal costs is granted but the appeal as to costs is dismissed.

[5]

The appeal is dismissed with costs fixed at $5,000 inclusive of
    disbursements and applicable taxes.

Gloria Epstein J.A.

K. van Rensburg J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Rousay v. Rousay, 2014 ONCA 732

DATE: 20141022

DOCKET: C57393

Feldman, Juriansz and Rouleau JJ.A.

BETWEEN

Iain Robert Rousay

Plantiff (Appellant)

and

John Rousay, Lauria Mae Lainson, and Beverley
    Frances Rock

Defendants (Respondents)

Iain Rousay, appearing in-person

Arie Gaertner and Willaim H. Levitt, for the respondents

Heard: October 20, 2014

On appeal from the order of Justice Carol J. Brown of the
    Superior Court of Justice, dated June 27, 2013.

APPEAL BOOK ENDORSEMENT

[1]

The appellant has not persuaded us that Brown J. erred in her conclusion
    that his proposed causes of action for breach of good faith and stating a false
    address are not reasonable causes of action known to law.

[2]

The appellants real concern is the validity of the impugned will, which
    issue is being raised by him in another action.

[3]

The appeal is dismissed with costs fixed at $2,500 inclusive of
    disbursements and HST.