COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adams, 2016 ONCA 413

DATE: 20160601

DOCKET: (M46536) C60031

Watt J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Herbert Adams

Applicant (Appellant)

Herbert Adams, acting in person

Lou Strezos, duty counsel

Craig Harper, for the respondent

Heard: May 10, 2016

ENDORSEMENT

[1]

Herbert Adams is a convicted fraudster. A judge convicted him of four
    counts of fraud after a lengthy trial. Then the judge sentenced Herbert Adams.
    Five years, six months in the penitentiary. Restitution of $5.3 million. A fine
    of $1.6 million in lieu of forfeiture.

[2]

Herbert Adams has appealed his conviction and sentence. He wants his
    convictions set aside. At the very least, he wants his sentence reduced. But he
    has a problem. He says he cant argue his appeal himself. The appeal is far too
    complicated for a person with a Grade 9 education and no legal training. He
    says he cant afford a lawyer. He has no money. And anyone in his family who
    has any money isnt prepared to spend it on a lawyer to argue his appeal.

[3]

Herbert Adams proposes a solution. He asks that I appoint counsel to
    represent him on appeal under s. 684 of the
Criminal Code
. He gets
    counsel. And the Attorney General pays for his counsel.

[4]

The Attorney General wants no part of Herbert Adams proposed solution.

[5]

These reasons explain why I have concluded that Herbert Adams
    application fails.

THE BACKGROUND FACTS

[6]

A brief overview of the allegations of fraud proven at trial and the
    procedural course that has followed since are sufficient for the purposes of
    this application.

The Allegations

[7]

Over a two year period, Herbert Adams (the applicant) is alleged to have
    defrauded three named persons and the shareholders of Majestic Supply Company
    Inc. of sums of money exceeding $5,000. The named persons and others were
    induced to invest in Majestic by representations made by the applicant or by
    others with his approval that were false, deceitful or otherwise dishonest. In
    time, Majestic ceased operations and became insolvent.

The Trial Proceedings

[8]

At trial, the applicant was represented by privately funded counsel. The
    trial, including final argument, appears to have lasted about seven weeks.

[9]

At the conclusion of the evidence and the final submissions of counsel,
    the trial judge reserved his decision. Four months later he provided written
    reasons for his decision. The reasons consist of 1119 paragraphs and nearly 200
    pages.

The Appellate
    Proceedings

[10]

Within
    a month of sentencing, the applicant filed an inmate notice of appeal against
    both conviction and sentence. He described his grounds of appeal as such
    grounds as may be suggested by counsel.

[11]

On
    August 30, 2015, almost eight months after he had been sentenced, a judge of
    this court released him pending the determination of his appeal. The applicant
    was represented by counsel on the application. The release order contains no
    sunset clause.

The Pursuit of Legal
    Aid Funding

[12]

The
    applicant sought legal aid funding to retain counsel to represent him on
    appeal. The Area Committee in Hamilton considered his request, which included a
    letter from trial counsel setting out what counsel considered were arguable
    grounds of appeal. The Area Committee rejected his application on April 14,
    2015.

[13]

The
    applicant appealed the Area Committee refusal to the Provincial Director. On
    June 15, 2015, Senior Legal Counsel, Appeals advised the applicant that his
    appeal of the refusal of the Area Committee to issue him a certificate was
    dismissed. The Director, like the Area Committee, concluded that the applicant
    failed to qualify financially for legal aid. Each noted a discrepancy between
    the applicants reported income and much larger deposits to his bank account,
    as well as unexplained withdrawals. In essence, legal aid authorities found
    that the information the applicant provided to the agency about his financial
    means was incomplete and incredible.

[14]

About
    four months later, the applicant renewed his request for legal aid funding. The
    Provincial Director treated the application as a request for reconsideration.
    The Director communicated the rejection in these terms:

The previous refusal was based on a conclusion that you failed
    to provide complete and credible information and you have access to resources
    through other persons who have assisted you. The information provided by you
    does not provide a basis for a different conclusion because even were Legal Aid
    to accept that your information is now complete and credible, Legal Aid
    considers you to have access to resources through other persons who have
    assisted you financially, those being your brother, son and sister. In the
    event that your family is no longer able to assist you, your family members may
    complete financial assessments in order that a determination may be made as to
    their financial eligibility. In the absence of your family members completing
    financial assessments, you fail to qualify financially for legal aid
    assistance.

[15]

About
    two months later, the applicant renewed his request for legal aid funding. He
    included some information about the financial circumstances of some members of
    his family. In rejecting this request, the Provincial Director pointed out that
    the applicant had access to other financial resources to fund retention of
    counsel. Legal Aid would not issue a certificate because neither the applicant
    nor his relatives could meet the required financial guidelines.

The Section 684
    Application

[16]

In
    his affidavit filed in support of this application, the applicant explained
    that he has exhausted all his financial resources and is living on pension
    income of about $1,300 per month. He owes the Canada Revenue Agency $131,000
    and his trial lawyer $31,000. Any family member who could provide financial
    assistance is not prepared to do so.

[17]

The
    applicant has a Grade 9 education and no legal training. His affidavit contains
    no reference to his business experience but includes, as an exhibit, a lengthy
    affidavit from trial counsel, filed in support of his application for release
    pending appeal, describing the nature of the evidence adduced at trial and
    listing several proposed grounds of appeal.

The Arguments Advanced

[18]

Duty
    counsel says that the applicant has made out a case for an order under s. 684.
    The proposed appeal has merit, as is evidenced by the finding of the chambers
    judge on the application for release pending appeal that the appeal is not
    frivolous. The applicant is inadequately equipped, by education or experience,
    to argue the appeal himself. The size of the appeal record means that Duty
    Counsel will not be a position to make submissions on the applicants behalf.

[19]

Further,
    duty counsel continues, the applicant lacks the financial resources to retain
    counsel privately. His own income is inadequate. His brother, a potential
    source of funding, has recently filed for bankruptcy. Other family members,
    even if able, are not prepared to assist. What is more, according to duty
    counsel, the court would be substantially assisted on the hearing of the appeal
    if counsel were appointed to focus the argument on the grounds with merit and
    leave aside those without it.

[20]

The
    respondent joins issue with the applicant on the inadequacy of financial
    resources to retain counsel, the inability of the applicant to argue the case
    without the assistance of counsel and, to some extent at least, on the merits
    of the proposed appeal.

[21]

The
    respondent says that the applicant has provided no credible information that he
    lacks access to sufficient funds to retain counsel privately. He did so at
    trial. His claim of penury is contradicted by large unexplained deposits in his
    bank account. He has never provided any explanation of where the proceeds of
    his fraud are currently residing. Nor do we have any satisfactory evidence
    about the state of his relatives finances or the fact or reasons of their
    refusal to assist.

[22]

The
    respondent takes issue with the applicants claimed inability to make
    submissions on his own behalf. After all, despite his limited formal education,
    the applicant incorporated companies, ran or directed the running of at least
    two businesses and participated in negotiations with international corporations
    to obtain the supplies necessary to pursue his business plans and goals. He
    also has available for assistance the materials prepared by trial counsel
    summarizing the underlying circumstances and setting out, in substantial detail,
    proposed grounds of appeal.

[23]

The
    respondent points out that although the chambers judge must have been satisfied
    that the appeal was not frivolous in order to grant release pending appeal, the
    test applicable there is a modest one, not dispositive of the merits inquiring
    for the purposes of an application under s. 684. At bottom, the grounds raised
    are largely complaints about factual findings, including the credibility of
    witnesses and the reliability of their evidence. These findings are largely
    impervious to appellate review, as is the claim of uneven scrutiny in accepting
    some and rejecting other evidence.

The Governing
    Principles

[24]

The
    discretion to assign counsel under s. 684 to act on behalf of an accused who is
    party to an appeal requires an applicant to satisfy two preconditions. The
    judge or panel of the court must be satisfied that:

i.

it appears desirable in the interests of justice that the accused should
    have legal assistance; and

ii.

it appears that the accused has insufficient means to obtain the
    necessary legal assistance.

[25]

The
    ubiquitous phrase, the interests of justice, takes its meaning from its
    context. It bespeaks a judicial discretion that is to be exercised on a
    case-by-case basis:
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont.
    C.A.), at para. 16. The phrase takes cognizance not only of the broad access to
    appellate review furnished by s. 675, but also of the expansive remedial
    authority of a court of appeal under s, 686 of the
Criminal Code
:
Bernardo
,
    at para. 20.

[26]

Further,
    two closely related principles are reflected in the factors to be considered
    under s. 684. The first is that counsel should be appointed where an accused
    cannot effectively present his or her case on an appeal without the help of a
    lawyer. And the second is that counsel should be appointed where the court
    cannot properly decide the case on appeal without assistance from counsel. In
    the majority of cases, neither or both principles will operate to require the
    appointment of counsel. On other occasions, perhaps fewer in number, one principle
    or the other on its own will justify the appointment:
Bernardo
, at
    para. 21.

[27]

Under
    s. 684, the first inquiry focuses on the merits of the appeal. With due
    allowance, in most cases at least, for incompleteness or other deficiencies in
    the record, the merits inquiry does not reach beyond a determination of whether
    the appeal raises arguable issues:
Bernardo
, at para. 22. The
    appointment of counsel cannot convert a desert into a rainforest.

[28]

A
    final point concerns the assessment of the financial resources component of the
    s. 684(1) inquiry. That inquiry is not and cannot become a judicial review of
    decisions made by legal aid authorities:
R. v. Peterman
(2004), 70
    O.R. (3d) 481 (C.A.), at para. 22; and
R. v. Rushlow
, 2009 ONCA 461,
    96 O.R. (3d) 302, at para. 18.

The Principles Applied

[29]

Several
    reasons persuade me that I should not make an order appointing or assigning
    counsel under s. 684.

[30]

First,
    the merits of the appeal. Despite the lengthy opinion letter of trial counsel
    about the merits of the appeal and the finding of the chambers judge on the
    application for release pending appeal that the appeal was not frivolous, the
    grounds of appeal advanced by trial counsel contest findings of fact made by
    the trial judge. Grounds of appeal that assert erroneous acceptance of the
    evidence of some witnesses and flawed rejection of the testimony of others are
    notoriously resistant to appellate correction. Likewise, the claim of uneven or
    unbalanced scrutiny of the appellants evidence in comparison with the testimony
    of other witnesses. A submission often made, but seldom successful.

[31]

Absent
    from the prospective grounds of appeal suggested by trial counsel are any
    claims of legal error, mistaken admission or rejection of evidence or an assertion
    of an unreasonable verdict.

[32]

Second,
    financial considerations. The record is barren of any explanation of the
    current residence of the funds obtained from the investors that are the subject
    of a $5.3 million restitution order. The applicant has expended no real effort
    to explain the discrepancies between the claim of penury advanced on his behalf
    and the reality of significant deposits made to his bank account. His denial of
    the availability of financial assistance from other family members remains
    simply his say-so, unconfirmed by any credible information from them.

[33]

Third,
    the applicants ability to advance argument on his own behalf. The applicant is
    a mature adult who ran or directed the running of businesses involved with sizeable
    commercial entities. He had employees and directed their activities. Despite
    his lack of formal education beyond early secondary school, it beggars belief
    that the applicant, with the benefit of extensive materials prepared by trial
    counsel, cannot advance his claims of error before a panel of this court.

CONCLUSION

[34]

The
    application is dismissed.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blake, 2016 ONCA 508

DATE: 20160624

DOCKET: C61889

Sharpe, Lauwers, and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lanson Blake

Appellant

Dan Stein, for the appellant

Katie Doherty, for the respondent

Heard and released orally: June 23, 2016

On appeal from the sentence imposed on December 18, 2015
    by Justice M.R. Gibson of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant pleaded guilty to criminal harassment and two counts of
    failure to comply with a probation order. He seeks leave to appeal the sentence
    imposed of two years less a day minus 361 days of pretrial custody (241 days
    credited at a 1.5:1 ratio) and three months probation.

[2]

At the guilty plea an agreed statement of facts was filed. The appellant
    and the complainant had formed an intimate relationship. According to the
    agreed statement of facts, after a night of drinking, the appellant forced
    intercourse upon the complainant while holding a pillow over her face to
    smother her. The complainant escaped, the police were called, and the
    complainant eventually told the police that she just wanted the appellant to go
    away and that she did not wish charges to be laid. She made it clear to the
    appellant that he frightened her and that she wanted him to leave her alone.
    Following that incident, over a five day period, the appellant continued to
    telephone and text the complainant. On two occasions he followed her.

[3]

At the sentencing hearing the appellants counsel indicated that the
    appellant accepted the agreed statement of facts except for the allegation of
    sexual assault.

[4]

The appellant, age 31 at the time of these offences, has a lengthy
    criminal record including five prior convictions for criminal harassment
    involving five different women and seven prior convictions for breach of court
    orders.

[5]

The appellant submits that the sentence imposed violated the jump
    principle and that the sentence was manifestly unfit.

[6]

We disagree.

[7]

The sentence imposed for the appellants prior criminal harassment
    convictions had included sentences of 6, 4 and 7 months. While the two years
    less a day sentence was a significant increase from seven months, we agree with
    the Crown that the disturbing pattern revealed by the appellants record of
    harassment fully justified a significant term of incarceration and, in the
    circumstances of this case, a sentence of two years less a day did not violate
    the jump principle: see
R. v. Ogbamichael
, 2016 ONCA 65. In our view,
    the sentencing judge quite properly emphasized the appellants prior record for
    this offence. An additional aggravating circumstance was the fact that the
    offence was committed while the appellant was awaiting disposition on an
    assault involving another former female partner. As the trial judge put it in
    his reasons: The conduct of [the appellant] has clearly demonstrated that he
    has still not gotten the message in terms of his criminal harassment of women
    that he has entered into relationships with.

[8]

While a sentence of two years less a day for this conduct would be
    excessive if the appellant were a first offender, it is not excessive given his
    lengthy prior record and the other aggravating factors.

[9]

Accordingly, leave to appeal sentence is granted but the sentence appeal
    is dismissed.

Robert J. Sharpe J.A.

P. Lauwers J.A.

B.W. Miller 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), (2.1), (2.2), (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 victim 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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right
    to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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. Bloomfield, 2016 ONCA 447

DATE: 20160607

DOCKET: C58534

Sharpe, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rebekah Bloomfield

Appellant

Boris Bytensky, for the appellant

Gillian Roberts, for the respondent

Heard: June 6, 2016

On appeal from the conviction entered on October 15, 2013
    and the sentence imposed on January 6, 2014 by Justice Donald K. MacKenzie of
    the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellant was convicted by a jury of procuring a 14-year-old female to
    become a prostitute contrary to what was then s. 212 (1)(d) of the
Criminal
    Code
. She was sentenced to 18 months imprisonment.

[2]

She appeals the conviction and seeks leave to appeal her sentence.

Conviction Appeal

(1)

Did the trial judge err in his instructions to the jury regarding the
    elements of s. 212 (1)(d)?

[3]

The appellant submits that the trial judge erred in his instructions as
    to the elements of this offence.

[4]

We see no error in relation to
actus reus
.

[5]

The appellants principal complaint relates to the instruction on
mens
    rea
. At trial, both Crown and defence agreed that the trial judge should
    instruct the jury that if the appellant believed the complainant was already a
    prostitute, the appellant would lack the necessary
mens rea
for this
    offence. We agree with the appellant that the trial judge erred in instructing
    the jury that the appellants belief had to be reasonable. However, we also
    agree with the Crown that in the context of this case, the error was harmless.

[6]

There was no evidence that the complainant had previously worked as a
    prostitute. The appellant did not testify that she entertained the belief that
    the complainant was already a prostitute and there was nothing else in the
    evidence adduced at trial to suggest that she might have entertained such a
    belief. In the absence of some evidence to support the belief, the defence
    could not succeed without reasonable grounds to support it. In these
    circumstances, the instruction that the appellants belief had to be reasonable
    was in error but it did not cause any substantial wrong or miscarriage of
    justice.

(2)

Unreasonable verdict

[7]

In our view there was evidence upon which a properly instructed jury
    could convict the appellant and we do not agree with the submission that the
    verdict was unreasonable.

[8]

The complainant testified that she received a Facebook message from
    someone called Beka. While the complainant could not say for certain that
    that message had been sent by the appellant, no objection was taken to the admissibility
    of this evidence and the jury was entitled to take it into account. We do not
    agree that it was hearsay.

[9]

Moreover, there was a substantial body of additional evidence from which
    it could be inferred that the appellant had played a role in persuading or
    enticing the complainant to become a prostitute. There was some evidence that the
    appellant accompanied her male co-accused on an out call with another
    prostitute on what may be described as a grooming exercise. The appellant also
    accompanied her co-accused to drive the complainant, who had not yet
    prostituted herself, from Ottawa to Mississauga. During that journey, the
    appellant gave the complainant instructions about how to commit acts of
    prostitution. The complainants first acts of prostitution took place in a room
    booked by the appellant.

[10]

In our view, taken as a whole, the evidence provided a basis upon which
    the jury could conclude that the appellant had, in concert with her co-accused,
    procured this very young complainant to become a prostitute.

(3)

Trial judges comment on the appellants failure to testify.

[11]

We do not agree with the submission that the trial judges comment that
    normally an accused who points the finger at her co-accused will take the
    stand amounted to an impermissible reference to the appellants failure to
    testify. The appellants trial counsel raised no objection and, indeed, the
    trial judges comment was made to deal with an objection made by counsel for
    the co-accused to something the appellants trial counsel had said in her
    closing. In our view, while perhaps unfortunate and unnecessary, this comment
    did not amount to an improper reference to the fact that the appellant chose
    not to testify, nor did it suggest that any reliance could be placed on the
    fact that she failed to testify.

Sentence Appeal

[12]

We do not agree that the sentence imposed was unfit or that the trial
    judge failed to take into account the fact that the appellant was a youthful
    first offender. The trial judge specifically noted that rehabilitation was an
    essential objective and that an offender should not be deprived of her liberty
    if less restrictive measures were appropriate. Given the very young age and
    vulnerability of the complainant, this was a serious offense. The trial judge
    was entitled to impose a sentence that emphasized deterrence and denunciation
    and to reject defence counsels submission that a conditional sentence was
    appropriate.

Disposition

[13]

Accordingly the appeal from conviction is dismissed. Leave to appeal
    sentence is granted but the sentence appeal is dismissed.

Released: RJS June 7, 2016

Robert J. Sharpe J.A.

David Watt J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bos, 2016 ONCA 443

DATE: 20160607

DOCKET: C56169

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melanie Bos

Appellant

Timothy E. Breen, for the appellant

Alexander Alvaro, for the respondent

Heard: February 3, 2016

On appeal from the convictions entered by Justice J.
    Bryan Shaughnessy of the Superior Court of Justice on June 29, 2012, with
    reasons reported at 2012 ONSC 3835, and from the sentence imposed on October
    25, 2012.

Tulloch J.A.:

A.

Introduction

[1]

Either Jim Hoy or the appellant started a fire in a hole in the basement
    stairway wall of Hoys 150-year old farmhouse.

[2]

The trial judge was convinced beyond a reasonable doubt that the
    fire-setter was the appellant, and convicted her of arson under s. 433(a) of
    the
Criminal Code,
R.S.C. 1985, c. C-46. He sentenced her to 18
    months imprisonment.

[3]

The appellant challenges her conviction and sentence arguing that the
    trial judge reversed the burden of proof, improperly allowed discreditable
    conduct evidence, misapprehended evidence, and erred in failing to impose a
    conditional sentence. She also seeks to adduce fresh evidence.

[4]

For the reasons that follow, I would dismiss her conviction appeal,
    grant leave to appeal sentence, but dismiss her sentence appeal.

B.

Background

[5]

On June 30, 2009, Hoy and the appellant, who were in a romantic
    relationship, discovered a burnt-out fire at Hoys farmhouse in Courtice. The
    fire was intentionally set. The appellants husband, Bruce Bos, reported it to
    police about a week later after learning about it from Hoy. On July 9, police
    arrested the appellant.

[6]

As so many arson cases do, this one depended on evidence of opportunity
    and motive to establish identity.

[7]

Opportunity was simple. Hoy and the appellant were the only people at
    the house that day. It had to be one of the two of them who set the fire.

[8]

Motive was more complicated. To advance their theories on motive, the
    Crown and defence led evidence on the appellants relationship with Hoy, her
    marriage, and Hoys relationship with her husband.

[9]

I will begin with the arson evidence, then move on to the motive
    evidence.

(1)

Two fires

[10]

There were in fact two fires at Hoys property: a garage fire and a house
    fire, one day apart. But the appellant was only charged for the second.

[11]

Hoys and the appellants testimony conflicted on key aspects
    surrounding those two fires, including the timing of the discovery of the house
    fire; which one of them was supposed to provide the closing funds on a property
    purchase, and whether Hoy refused the appellants repeated suggestions that
    they contact the authorities about the first fire.

[12]

The timing of the house fire discovery was crucial to opportunity. If
    the appellants evidence was accepted, then it must have been Hoy who set the
    fire. If Hoys evidence was accepted, it strongly suggested the appellant did
    it.

[13]

The closing funds evidence was relevant to the Crowns motive theory.
    That theory was, essentially, that the appellant set the fire as an excuse to
    avoid admitting she did not have the money to close the purchase of the property.
    That, in turn, would have risked exposing her lies about her marriage, the
    money she claimed to be receiving from her husbands death and the sale of
    their matrimonial home.

[14]

The evidence about Hoys refusal to contact the authorities was relevant
    to the defence theory. The defence suggested that Hoy started the house fire to
    frame the appellant, putting her on the defensive, and thus preventing her from
    reporting the garage fire.

[15]

The events in dispute took place at the end of June, 2009.

[16]

One day before the house fire, on June 29, 2009, there was a fire in
    Hoys garage.

[17]

Hoy and the appellant left his house sometime between eight and eight
    thirty that morning. They were headed to their lawyers office to close the
    deal on a property they were buying together in Picton.

[18]

Before leaving, Hoy showered and got dressed. When he came downstairs,
    the appellant was waiting for him. Hoy testified that he thought she had stayed
    the night, but the appellant claimed she arrived at Hoys that morning two or
    three minutes before they left. On their way out to the appellants car, the
    appellant said she smelled smoke. Hoy was dismissive, and said it was probably
    coming from his neighbours property since he often had campfires at night.

[19]

On the way to the lawyers office, it came to light that they did not
    have the cheque for the closing funds of roughly $100,000. At trial, each said
    the other was responsible for coming up with the funds. The trial judge
    accepted that it was the appellant who was supposed to make the payment, and
    that she did not have the ability to do so.

[20]

Despite lacking the closing funds, they continued on. They met with
    their lawyer at his office in Picton, and then had lunch in town.

[21]

Thick smoke filled the garage when they returned to Hoys at around four
    in the afternoon. Based on a heavy concentration of soot on the walls and
    ceiling in the area, a dog biscuit pail, which Hoy had been using as a garbage
    can, was identified as the source.

[22]

Hoy told the appellant that he thought he caused the fire. He said it
    was from rolling up a large amount of packing tape into two balls. According to
    him, he felt some heat coming from the balls and concluded that they must have
    spontaneously combusted. At trial, the fire investigator testified that
    spontaneous combustion could not be caused by crumpling or rolling packing tape
    into a ball.

[23]

The appellant claimed she implored Hoy to call the fire department, but
    that he refused, saying they would think he intentionally set his garage on
    fire. The trial judge rejected that this ever happened.

[24]

Hoy and the appellant worked to clean the walls and ceiling of the
    garage that evening. They worked late into the night, in part because there was
    a real estate showing of the house the next day, the last day of the houses
    listing.

[25]

At about one in the morning, the appellant took another item off the
    wall to clean and said its times like these when you wish that you had less
    things. Hoy, an antique dealer, took offence. They argued. Hoy left to take a
    shower and go to bed. The appellant locked up the garage and left.

[26]

At about five thirty the following morning, the appellant was again at
    Hoys house. On her version of events, she had returned shortly after leaving
    and had been cleaning up in the garage all though the late night and early
    morning.

[27]

She went upstairs to Hoys room and he appeared to be sleeping. Hoy
    testified that she climbed the stairs very quietly so as not to wake him. He
    pretended to sleep. Hoy said that he was just hoping she would leave and did
    not want to engage her. She went back downstairs. Hoy said he heard her
    rummaging around. After a little while, Hoy could wait no longer and got up and
    went to the washroom.

[28]

The appellant heard the toilet flush and then went back upstairs. She
    climbed into bed with Hoy. Hoy said he could smell smoke. The appellant
    responded that it must be a residual smell coming from her after cleaning the
    garage.

[29]

Hoy said he smelled her hair, and that it smelled of shampoo, not
    residual smoke. The appellant testified that she could not smell any smoke at
    this time.

[30]

Hoy decided to investigate. He said he was worried that there was an
    electrical fire. The two of them looked around the house. They both went into
    the basement. While there, Hoy said he saw a puff of smoke come out from the
    bottom of the basement stairway wall leading to the main floor. The appellant
    testified that she never saw this.

[31]

Hoy asked the appellant to feel the wall for heat. She removed the coats
    and coveralls hanging from the wall that were in the way.

[32]

According to the appellant, they did not see or smell any smoke at this
    time. She said she only remembers seeing one small hole in the wall then. She
    was running late to get her son, so she left. She returned later after
    receiving some texts from Hoy. At this time, he showed her the hole in the wall
    and she saw the small hole, singed, with a bit of gray ash on it. She never saw
    the large eight inch hole that day. The trial judge rejected this account, and
    accepted Hoys version.

[33]

Hoy said that when the appellant removed the coats and coveralls, he
    noticed an eight inch diameter hole in the wall. He looked in the hole and saw
    something that looked like a paper towel. When he mentioned this to the
    appellant, she stuck her finger into the wall, knocking whatever was in there
    into the cavity, but she said it was not paper towel. He went to get a
    flashlight to investigate further. The appellant then said she had to take her
    son to work and left. Hoy saw an orange ember around the large hole, but no
    fire.

[34]

After examining the wall further, Hoy was convinced it was not an
    electrical fire. He asked his friend Rick Harrington to come over. He messaged
    the appellant to say they needed to talk.

[35]

Hoy and the appellant discussed the house fire later that morning, after
    the appellant returned from driving her son to work. Hoy told the appellant
    that if the authorities were called one of us would be going to jail.

[36]

Hoy testified that the appellant then got in his face, and said that
    she was not a criminal and would not be going to jail. He interpreted this to
    mean that because he had a criminal record, he would be the one that would be
    blamed.

[37]

Hoys friend Harrington came over. They talked. Hoy decided he would not
    call the authorities, but would play along with the appellant while he divested
    himself from the properties they owned together. Neither Hoy nor the appellant
    ever did call the authorities.

[38]

The appellant went later that day to deliver the cheque for the closing
    funds for the Picton church property. On the way, the appellant pulled over to
    the shoulder of the highway, and sought assistance. An ambulance took her to
    the hospital. Hoy picked her up and she left the hospital that evening.

[39]

The Picton church property deal never closed.

[40]

Hoy and the appellant spent the next weekend together, then a few days
    apart. When she came to his house on July 9, the police were waiting, and
    arrested her. The appellants husband had called them after learning about the
    fire from Hoy.

[41]

At the end of October 2009, the Fire Marshalls office investigated. The
    investigator concluded that the house fire was intentionally set.

(2)

Evidence of motive and context

[42]

To support their motive theories, the Crown and defence battled over the
    appellants relationship with Hoy, her marriage, and Hoys relationship with
    her husband. The Crowns version of events was supported by Hoy, Hoys friends
    Wayne Valleau and Rick Harrington, and the appellants husband, Bruce Bos. The
    appellant testified and said they were all lying.

[43]

As noted above, the Crowns theory was that the appellant was living a
    double life and that she set the fire as a distraction to prevent that from
    being exposed to Hoy. The defence suggested Hoy did it as part of an attempted
    insurance fraud.

[44]

On the Crowns version, which the trial judge accepted, Hoy and the
    appellant started dating in late 2008. They had met through work about 15 years
    earlier, and became friends over the years. They spent New Years Eve together
    that year and went on double-dates with Valleau and his wife.

[45]

Hoy thought the appellant was separated from her husband. She had been
    telling people that they split up in the early 2000s.

[46]

During a shopping trip in February 2009, the appellant told Hoy,
    Valleau, and Valleaus wife, that her husband had just died. She was to receive
    $287,000 from his estate and his life insurance policy. Later that spring she
    told Hoy that she sold their matrimonial home and would receive about $130,000
    profit from it. At some point though, she said the sale had fallen through.

[47]

Meanwhile, in mid-March, the appellants husband, Bruce Bos, discovered
    her affair. They separated. Mr. Bos then learned that she had accumulated
    $33,000 in credit card debt, that they were in arrears of $15,000 on their mortgage
    and $13,000 on their sons tuition, and that she had withdrawn $46,000 from
    their line of credit. The appellant normally looked after their finances. Up to
    that point, he understood that they were up to date with payments and not
    carrying that debt.

[48]

The appellant moved into Hoys house after her separation, and stayed
    there for a few weeks.

[49]

They began investing in properties together. The appellant left Hoys house
    and moved into a new home in early April. The plan was for Hoy and the
    appellant to live together at that home, after he sold his house.

[50]

The appellant and Hoy also went to Cuba in April for Hoys nephews
    wedding. While there, Hoy proposed. The appellant accepted.

[51]

Hoy executed a new will in May 2009. He named his fiancée Melanie Bos
    as the trustee and executor of his estate. He left much of his estate to her,
    and made bequests to her children.

[52]

After the house fire at the end of June, Hoys friend Valleau hired a
    private investigator. He learned that the appellant was still married, and provided
    Hoy with Bruce Boss phone number. The two men had never met at that point.

[53]

Hoy spoke to Bruce Bos on July 7. They met at a fast-food restaurant on
    July 8, together with the appellant and Boss daughter. Hoy still did not want
    to report the matter to police. Bos went ahead and made the call anyway.

[54]

Following the appellants release on bail, she returned to her house.
    She reported a break-in to police. While there, the police found a letter to
    Canadian Pardon Services, signed by the appellant, supporting Hoys application
    for a pardon for crimes committed around the early 1980s. In that letter, the
    appellant stated that she was a widow.

[55]

The appellant offered a very different version of events.

[56]

Her evidence, which the trial judge rejected, was that much of this was
    all lies. Despite agreeing that she spent Boxing Day and New Years Eve with
    Hoy, travelled to Buffalo with him in February, and lived at his house for a
    few weeks beginning in mid-March, she said that they had a platonic
    relationship until April. She denied that they were ever engaged even though
    she had an engagement ring, said that they were engaged in her statement to
    police, and had a copy of Hoys will, which identified her as his fiancée in
    May 2009.

[57]

She said that she never told people her husband was dead. She never
    wrote the pardon letter, which must have been a forgery. She never said she and
    her husband were separated until they actually were in March 2009, and the only
    reason she did not wear her wedding ring was because of the industrial nature
    of her work (she managed an automotive plant).

[58]

Rather, she told Hoy she was married and about how her husband raped and
    physically abused her. He even picked her up from the hospital after her
    husband abused her once.  She added that Hoy and her husband had met on a
    number of occasions. Finally, she had lent Hoy a lot of money, and was not
    pooling resources with him. She would not have agreed to extend herself further
    for the Picton church property.

C.

trial decision

[59]

In lengthy, detailed reasons for judgment, the trial judge convicted the
    appellant of arson.

[60]

The trial judge found that the appellant was not credible, in part
    because of her testimony on the background facts relevant to context and
    motive. He felt that she appeared to be tailoring her evidence at trial and
    trying to argue her case through her testimony. He rejected all of her evidence
    on critical issues.

[61]

The trial judge accepted Hoys evidence, including, crucially, on when
    the fire was discovered. He carefully scrutinized Hoys testimony, noting that
    he was rude, disrespectful, and inconsistent. However, he did not believe that
    Hoy was lying on the essential points of his evidence.

[62]

The trial judge accepted Hoys evidence that he would not have profited
    from an insurance claim. He also accepted that the appellant never suggested
    reporting the garage fire. Accordingly, he rejected the defences proposed
    motive theories for Hoy: that Hoy set the garage fire for insurance funds and
    that he set the house fire to scare her from reporting the garage fire.

[63]

He declined to make a finding on who set the garage fire, noting that
    the appellant had not been charged with it.

[64]

In the end, the trial judge concluded that he was not left with a
    reasonable doubt as to where the truth of the matter lay. On all the evidence,
    he was convinced of the appellants guilt beyond a reasonable doubt.

[65]

At sentencing, he rejected defence submissions that the appellant should
    receive a suspended sentence or a conditional sentence. He felt that the
    sentencing principles and objectives required a custodial sentence. He
    sentenced her to 18 months imprisonment.

D.

ISSUES ON APPEAL

[66]

The following issues have been raised on appeal:

1) Did the
    trial judge improperly admit discreditable conduct evidence?

2) Did the trial judge reverse the burden of proof?

3) Did the trial judge misapprehend evidence?

4) Should fresh evidence be received?

5) Did the
    trial judge err by failing to impose a conditional sentence?

[67]

I would answer no to each question and dismiss the appeal.

E.

CONVICTION APPEAL

(1)

Discreditable conduct evidence

[68]

The appellant argues that the trial judge erred by admitting evidence of
    the appellants lies and misuse of funds, and that this error led to an unfair
    trial. According to the appellant, that presumptively inadmissible
    discreditable conduct evidence lacked relevance and was highly prejudicial.

[69]

To support this ground of appeal, the appellant attacks the Crowns
    motive theory as illogical. She submits that her failure to close the Picton
    church purchase, for which the fire was allegedly set to provide an excuse,
    would not make it more likely that Hoy would discover her double life. Thus,
    any evidence adduced to support that illogical theory, such as her
    misappropriation of funds from her husband, is necessarily irrelevant.

[70]

She adds that the admission of this evidence had a profound prejudicial
    impact on the trial. The contest over the facts sought to be inferred from this
    evidence dominated the trial, distracting the trial judge from the central
    issues of motive and opportunity.

[71]

In my view, this evidence was relevant to motive and properly admitted.

[72]

Evidence is discreditable when it tends to show conduct of the accused, which
    would be viewed with disapproval by a reasonable person, beyond what is alleged
    in the indictment: see e.g.
R. v. Johnson
, 2010 ONCA 646, at para. 90.

[73]

Such evidence is presumptively inadmissible because [i]ts potential for
    prejudice, distraction and time consumption is very great and these
    disadvantages will almost always outweigh its probative value:
R. v. Handy
,
    2002 SCC 56, [2002] 2 S.C.R. 908, at para. 37.

[74]

In
Johnson
, at paras. 97-101, Rouleau J.A. discussed the
    jurisprudence on discreditable conduct evidence adduced to support motive. He
    explained that such motive evidence is not automatically admissible. Rather,
    the trial judge must satisfy herself or himself that the probative value of the
    evidence outweighs its prejudicial effect. He noted that discreditable conduct
    evidence that is adduced to advance a speculative theory of motive ought to be
    excluded. However, evidence that provides the trier of fact with real insight
    into the background and relationship between the accused and the victim, and
    which genuinely helps to establish a
bona fide
theory of motive is
    highly probative, and thus more likely to outweigh its inherent prejudicial
    effect:
Johnson
, at para. 101.

[75]

In this case, I am satisfied that the impugned evidence was
    discreditable. The appellants lies and misuse of family funds, which also
    involved a breach of her husbands trust, are all examples of conduct a
    reasonable person would view with disapproval.

[76]

The question then is whether the probative value of this evidence outweighed
    its inherent prejudicial effect. In my view, it did.

[77]

The Crowns motive theory was that the appellant set the fire to
    distract Hoy from concluding that she could not provide the Picton church
    closing funds.

[78]

Both the fact that she was overextended financially and that she would
    go to great lengths to buy properties with Hoy were essential to understanding
    that theory. Also adding to that understanding was the fact that she lied about
    coming into hundreds of thousands of dollars from her supposedly dead husbands
    estate and life insurance policy, and that she had sold the house that her dead
    husband was actually living in.

[79]

It is fair to infer that had she just admitted that she could not come
    up with the money for the Picton church closing that it might have raised
    questions about her financial affairs, which might have, in turn, attracted further
    attention to the lies she had told Hoy, risking the exposure of her double
    life.

[80]

In his reasons, the trial judge drew these inferences and made these
    findings of facts. He accepted the Crowns motive theory. He found that she was
    financially strapped after drawing on the Bos family bank accounts and lines of
    credit. He accepted that the appellant was to come up with the roughly $100,000
    for the Picton church closing, but that she could not do so. He also noted that,
    on other occasions, some distraction or diversion took place that provided the
    appellant with an excuse for not delivering the closing funds. He found that
    the appellant was motivated to protect the lifestyle and relationship she was
    enjoying with Hoy.

[81]

As the appellant notes, this case turned on motive and opportunity. I
    disagree that the Crowns motive theory was illogical or speculative. To the
    contrary, establishing motive was highly probative towards discovering the
    truth behind the house fire.

[82]

The probative value of that evidence outweighed its prejudicial effect.
    It is true that the contest over the facts to be inferred from this evidence
    was time-consuming. And, at times, the reasons suggest that some of the details
    of the appellants double life may have been distracting.

[83]

In the end, however, I am convinced that the trial judge was focussed on
    the crucial issue of reasonable doubt when coming to his verdict.

[84]

I also note that he expressly acknowledged in his reasons that the fact
    that the appellant was capable of deceit and living a double life did not lead
    him to the conclusion that she set the house fire.

[85]

I would reject this ground of appeal.

(2)

Reversing the burden of proof

[86]

The appellant complains that the trial judge approached this case as a
    credibility contest and shifted the burden to the defence to establish that the
    appellant was the victim of an elaborate scheme among Hoy, his friends and her
    husband.

[87]

I disagree.

[88]

The trial judge found that the fire was intentionally set. He accepted
    the evidence of both Hoy and the appellant that they were the only people at
    the house that day. It had to be one of them that set it. He rejected the
    appellants evidence, finding her not to be credible on the central issues of
    the trial. He accepted Hoys evidence, after carefully scrutinizing it. On Hoys
    evidence, the appellant was the only person who could have set the fire. He
    also accepted the Crowns motive theory, while rejecting the motive theories
    proposed for Hoy.

[89]

I do not read the trial judges reasons as reversing the burden of
    proof. His reasons do at times seem to focus on explaining why he does not
    agree with alleged weaknesses in the Crowns case. However, to me, they merely
    reflect that he was responsive to the defences arguments and theory of the
    case, although he obviously rejected them.

[90]

The trial judge expressly stated that he was not left in a state of
    uncertainty as to where the truth of the matter lay. He stated that he was
    satisfied beyond a reasonable doubt on all of the evidence that the appellant
    intentionally set the house fire, knowing that Hoy was in the house at the
    time.

[91]

He did not reverse the burden of proof. I note that this is not a case
    where he faulted the defence for failing to prove some matter at issue, or for
    which he made a finding of fact on the basis that the defence failed to provide
    any evidence to the contrary. Nor did he ignore that he could still be left
    with a reasonable doubt even if he preferred the evidence favourable to the
    Crown to that supportive of the defence.

[92]

I would dismiss this ground of appeal.

(3)

Misapprehension of evidence

[93]

The appellant claims that the trial judge misapprehended evidence about
    the garage fire and about her presence at the time the house fire was
    discovered.

[94]

In my view, the trial judge did not misapprehend the evidence on those issues
    and, if he did, I would not give effect to this ground of appeal.

[95]

As Doherty J.A. noted in
R. v. Morrissey
(1995), 97 C.C.C. (3d)
    193 (Ont. C.A.), at p. 218, A misapprehension of the evidence may refer to a
    failure to consider evidence relevant to a material issue, a mistake as to the
    substance of the evidence, or a failure to give proper effect to evidence.

[96]

However, not every misapprehension of evidence results in a miscarriage
    of justice, unreasonable verdict, or error of law that allows this court to
    overturn a conviction. Indeed, Binnie J. explained in
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, that the standard is stringent:

The misapprehension of the evidence must go to the substance
    rather than to the detail. It must be material rather than peripheral to the
    reasoning of the trial judge. Once those hurdles are surmounted, there is the
    further hurdle (the test is expressed as conjunctive rather than disjunctive)
    that the errors thus identified must play an essential part not just in the
    narrative of the judgment but in the reasoning process resulting in a
    conviction.

(a)

The garage fire

[97]

On the garage fire, the appellant submits that the trial judge failed to
    give proper effect to evidence that indicated that Hoy intentionally started
    the fire: he had the best opportunity to do so, stood to benefit from his
    insurance on the property, gave inconsistent testimony on whether he smelled
    the smoke before leaving that morning, and claimed that he accidentally started
    it because tape he rolled up spontaneously combusted.

[98]

That evidence is significant, she says, because it supported her theory
    that Hoy framed her for the house fire to prevent her from reporting him for
    the garage fire. In her view, it is a virtual certainty that the same person
    was responsible for both fires.

[99]

The trial judges reasons demonstrate that he understood this theory,
    yet dismissed it as speculative.

[100]

In my view, he
    was entitled to do so. That is especially so considering the findings of fact
    that he did make, which supported his rejection of the defence theory, and
    which are owed deference on review. I will explain.

[101]

The defence
    theory depended on the trial judge accepting a level of probability for two
    inferences from which the third inference  that Hoy set the house fire  could
    reasonably be drawn. Those two intermediate inferences are that first, Hoy set
    the garage fire, and second, that Hoy had a motive to frame the appellant
    afterward.

[102]

For the first
    inference, while Hoy had opportunity to set the garage fire, the trial judge
    rejected the only apparent motive he would have had to start that fire: namely,
    to collect home insurance. That finding was based on accepting Hoys evidence
    that he would not have benefitted from an insurance claim, and is entitled to
    deference.

[103]

Of note, the
    appellant, on the other hand, had the motive to set the house fire as the trial
    judge found. She had to provide an excuse for not delivering the closing funds
     and, as he found, she later did make an excuse that day to avoid discovery of
    her inability to close the deal. Also, even on her evidence, she had about two
    to three minutes of opportunity to start the garage fire.

[104]

In addition, I
    note that the expert evidence was equivocal on whether the garage fire was
    intentionally set, and that the trial judge made no finding to that effect. The
    proposition that Hoy set the garage fire was far from being a sure thing.

[105]

For the second
    inference, the trial judges findings of fact seriously undermine the possibility
    of it being true. He accepted Hoys testimony that the appellant never
    discussed reporting the garage fire with him, and he rejected her testimony
    that she made repeated demands that Hoy contact the authorities. As the trial
    judge noted, absent such discussions or demands taking place, it seems unlikely
    that Hoy  who at that point gave all indications of being happy in his
    relationship with the appellant  would be motivated to frame her.

[106]

Based on the
    trial judges factual findings, I do not believe that he erred in dismissing
    the defence theory as speculative or that he failed to give proper effect to
    the evidence the appellant contends supported her theory that Hoy framed her
    for the house fire to prevent her from reporting him for setting the garage
    fire.

(b)

The appellants presence when the house fire was discovered

[107]

The appellant
    testified that the morning of the house fire she searched for the fire with
    Hoy, moved the coats and coveralls from the wall where the fire was eventually
    discovered, saw no evidence of a fire there, left to drive her son to work,
    returned, and then, for the first time, saw a hole in the wall and evidence of
    a fire.

[108]

On appeal, she
    impugns the following passage from the trial judges reasons, at para. 268:

The fact that she states that she removed the coats and
    coveralls and saw some ash around a much smaller hole, leads to the conclusion
    that she was present when a hole and evidence of burning was located
.
    Accordingly, I find that Melanie Bos was present when the hole was discovered
    with burning embers and that very shortly after this discovery, she left the
    home to drive her son to work
.
[Emphasis added.]

[109]

The appellant
    claims that the trial judges reasons demonstrate that he misapprehended her
    evidence about when she saw the ash around the smaller hole. His reasons, she
    says, show the trial judge thought she testified that she saw the ash after
    removing the coats and coveralls but
before
she left to drive her son
    to work. Her actual testimony, meanwhile, was that she saw the ash
after
returning
    from driving her son to work. The appellant submits that the significance of
    this misapprehension is that it was then used as an admission of opportunity
    and to corroborate Hoys testimony.

[110]

The trial
    judges reasons must be read in context and as a whole. After having done so, I
    am satisfied that, although his reasons are somewhat ambiguously worded, the
    trial judge did not misapprehend the appellants evidence on this issue.

[111]

The underlined,
    impugned sentence could be read in two ways. The first interpretation, as
    suggested by the appellant, is that the trial judge thought the appellant
    testified that the removal of the coats and her viewing of the ash happened at
    about the same time. The second interpretation, which I find the record bears
    out, is that both the fact that she agreed that she removed the coats and
    coveralls and the fact that she agreed she saw ash around the hole, albeit at a
    later time, support his conclusion that she was present when the fire was
    discovered.

[112]

I come to this
    conclusion for the following reasons. First, the trial judge correctly set out
    her testimony earlier in his reasons. Presumably, he did not forget what he
    wrote on page 33 by the time he got to page 66.

[113]

Second, the
    trial judge began the impugned paragraph by accepting Hoys evidence that he
    observed the glowing embers after the appellant removed the coats and
    coveralls. The appellants testimony that she removed the coats and saw ash
    around the hole is corroborative of that account, although obviously the trial
    judge rejected her evidence about the timing of when she saw the ash.

[114]

Third, the
    appellants defence theory was that Hoy set the fire to frame her during the
    window of opportunity that her driving her son to work created. It seems
    implausible that he would have misunderstood her to have testified to a fact
    that completely undermined that theory, or that, had he done so, he would not
    have commented on it further.

[115]

In any event,
    even had the trial judge misapprehended her evidence on this point, I am not
    satisfied that it would have led to a miscarriage of justice. The trial judge
    found that she was not a credible witness on the central issues of the case. A
    misapprehension of the impugned evidence would not have played a central role
    in the trial judges reasoning process resulting in conviction.

(4)

Fresh evidence

[116]

The appellant
    asks this court to admit her cell phone records for the time period embracing
    the house fire. While much of the information in these records was put to
    witnesses for impeachment purposes at trial, they were never proved and
    admitted as part of the evidentiary record.

[117]

The appellant
    submits that the cell phone records are highly relevant to the decisive issue
    of her opportunity to set the fires. She highlights the following records:

·

Text
    messages allegedly from her children between 5:18 a.m. and 7:21 a.m. on the day
    of the garage fire, that she says confirms her testimony that she drove her
    children to work before going to Hoys house that day;

·

Telephone
    calls to the Picton law office at 8:35 a.m. on the morning of the garage fire,
    which she says confirms her evidence about the calls she made on the way to
    Picton;

·

A
    text from Hoy at 1:45 a.m. the night before the house fire stating, I wrote
    you a note and left it on the chair by the door you can read it tomorrow it
    should make you happy;

·

Texts
    from Hoy on June 30, the morning of the house fire, stating at 6:19 a.m. sorry
    again, at 7:02 a.m. nothing is different in the garage, and at 7:04 a.m.
    are you trying to kill me, which she says supports her evidence that the fire
    had not been discovered before she left at around 6 a.m.; and

·

Text
    messages the day of the house fire and the next two days, which she says
    support her account of her discussions with Hoy about the delivery of the
    cheque to the lawyer in Picton.

[118]

Appeals are
    generally limited to the evidence adduced at trial. In some cases, however, the
    interests of justice require that appellate courts admit fresh evidence and
    expand the evidentiary record. That is because the potential for a miscarriage
    of justice outweighs countervailing concerns of finality and order, values
    essential to the integrity of the criminal process:
R. v. Hay
, 2013
    SCC 61, [2013] 3 S.C.R. 694, at para. 64;
R. v. M. (P.S.)
(1992), 77
    C.C.C. (3d) 402 (Ont. C.A.), at p. 411. In my view, this is not one of those
    cases.

[119]

The Supreme
    Court has established the following factors for an appellate court to consider
    when deciding a fresh evidence application: (1) whether by due diligence the
    party seeking to admit the fresh evidence could have adduced it at trial; (2)
    whether the evidence bears upon a potentially decisive issue; (3) whether the
    evidence is reasonably capable of belief; and (4) whether it could reasonably
    be expected to have affected the result at trial, if believed:
Palmer v.
    The Queen
, [1980] 1 S.C.R. 759, at p. 775;
Hay
, at para. 63.

[120]

Notwithstanding
    that the due diligence factor weighs against admission, I would dismiss the
    fresh evidence application simply because these messages do not have sufficient
    probative value to have affected the result at trial.

[121]

The garage fire
    morning text messages do little to assist the appellant. As explained above, I
    disagree that it was a virtual certainty that both fires were started by the
    same person. In any event, even on her evidence she had opportunity to set the
    garage fire. The proposed cell phone evidence would, at best, support her
    testimony that she only had about two to three minutes to do so, rather than
    all morning.

[122]

The remaining
    texts are either consistent with Hoys evidence at trial or insignificant. He
    testified that he did not immediately form the opinion that she intentionally
    set the fire. And the texts about the cheque merely offer confirmation that
    someone was supposed to bring a cheque to the law office  they do nothing to
    resolve the conflict over who was supposed to do so.

[123]

This proposed
    evidence is equivocal at best, relates to tangential matters, or merely
    confirms what was already established at trial. It could not reasonably be
    expected to affect the trial judges decision. I would dismiss the fresh
    evidence application.

F.

Sentence appeal

[124]

The appellant
    challenges the trial judges refusal to impose a conditional sentence. While I
    would grant leave to appeal sentence, I would dismiss the sentence appeal.

[125]

The trial judge
    held that he could not impose a conditional sentence because he was not
    satisfied that the service of the sentence in the community would not endanger
    the safety of the community and would be consistent with the fundamental
    purpose and principles of sentencing set out in sections 718 to 718.2:
Code,
s. 742.1(a).

[126]

The trial
    judges findings included the following:

·

the fire was purposely set with full knowledge that Hoy was
    upstairs in bed;

·

no attempt was made to alert him to the danger;

·

the location of the fire was hidden (behind the coats and
    coveralls);

·

there was an element of planning; and

·

the fact that the fire did not spread and engulf the entire home
    was due to good luck and not good management since it was the lack of oxygen in
    the wall that extinguished the fire.

[127]

Based on these
    findings, the trial judge did not err in holding that this was a serious arson
    offence, an offence for which this court has consistently held conditional
    sentences are inappropriate: see e.g.
R. v. Mirzahkalili
, 2009 ONCA
    905, 257 O.A.C. 27;
R. v. Fox
, [2002] O.J. No. 2496;
R. v.
    Hirnschall
(2003), 176 C.C.C. (3d) 311 (Ont. C.A.).

[128]

The appellant
    also claims that the trial judge improperly relied on evidence of her
    post-offence psychiatric health to support a finding of dangerousness.

[129]

In my view, the
    trial judges reasons do not bear out the appellants complaints. In any event,
    he also held that, even if he were wrong about her posing a danger to the
    community, the imposition of a conditional sentence would not be consistent
    with the fundamental principles of sentencing: namely general deterrence,
    specific deterrence, and denunciation.

[130]

Accordingly, I
    would not interfere with the trial judges imposition of a custodial sentence
    or with the length of the sentence he imposed.

G.

DISPOSITION

[131]

For these
    reasons, I would dismiss the conviction appeal. I would grant leave to appeal
    sentence, but dismiss the sentence appeal.

Released: EEG  JUN 7, 2016

M. Tulloch J.A.

I agree. E.E.
    Gillese J.A.

I agree. David Watt
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Breton, 2016 ONCA 425

DATE: 20160601

DOCKET: C58374

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jean Claude Breton

Appellant

Joseph Di Luca, for the appellant

Michael Perlin, for the respondent

Heard: November 25, 2015

On appeal from the convictions entered on September 13,
    2013 and the sentences imposed on December 5, 2013 by Justice A.L. Guay of the Ontario
    Court of Justice.

Benotto J.A.:

Overview

[1]

The appellant was convicted of robbery, possession of a weapon for a
    purpose dangerous to the public peace (weapons dangerous) and three counts of
    breaching probation orders in connection with his involvement in a drug
    transaction. The charge of aggravated assault was stayed under
R. v.

Kienapple
, [1975] 1 S.C.R. 729
.

[2]

His co-accused, Ashley Labonte, was convicted of robbery and accessory
    to an attempted robbery, the latter of which was stayed under the
Kienapple
principle.

[3]

The appellant and Labonte both appealed their convictions and sentences.
    The two appeals were heard together. The reasons are being released together
    and are intended to be read together. The facts with respect to the convictions
    are set out in the reasons for my decision on the Labonte appeal: see
R. v.
    Labonte
, 2016 ONCA 426.

Robbery

[4]

In the Labonte appeal, I concluded that the trial judge provided
    insufficient reasons, by failing to make the findings of fact necessary to find
    Labonte guilty of robbery in the manner particularized by the Crown, such that
    a new trial was required.

[5]

I set aside Labontes conviction for robbery and the stay of her
    conviction for accessory to an attempted robbery and ordered a new trial.

[6]

The Crown submits that if this court allows the appellants appeal from
    his robbery conviction, then this court should either remit the aggravated
    assault charge back to the trial judge to enter a conviction and sentence, or this
    court should enter a conviction for aggravated assault pursuant to its powers under
    s. 686(8) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[7]

For the reasons that follow, I would dismiss the appeal pursuant to s.
    686(1)(b)(i) of the
Criminal Code
, which allows this court to dismiss
    the appeal where it is of the opinion that the appellant, although not properly
    convicted on a count or part of the indictment, was properly convicted on
    another count or part of the indictment. I would quash the conviction on
    robbery, lift the stay on the aggravated assault charge, enter a conviction for
    aggravated assault and, pursuant to s. 686(3)(b), remit the matter back to the
    trial judge  for sentencing on aggravated assault.

Aggravated Assault

[8]

The appellant testified that when Courtemanche leaned into the car,
    stabbed Labonte and tried to engage the handbrake, he wrestled the knife away
    and stabbed Courtemanche in an effort to defend Labonte.

[9]

The trial judge rejected this evidence for several reasons, all of which
    were available to him on the evidence. Further, the trial judge made findings
    of fact in relation to the essential elements of aggravated assault. He found
    that the appellant unabashedly admitted to stabbing Courtemanche eight times.
    He also found that Courtemanche was wounded as a result. The trial judge made a
    finding of guilt on the aggravated assault count and stayed that charge.

[10]

At
    trial, the appellant sought to rely on the Defence of Person provisions in s.
    34 of the
Criminal Code.
These provisions came into force in March 2013,
    after the events in question. The trial judge implicitly acceded to the
    submission to have the provisions apply retrospectively. Instead of applying
    the previous s. 37, the trial judge applied the new s. 34. After the trial,
    this court held in
R. v. Bengy
2015 ONCA 397, 325 C.C.C. (3d) 22, that
    the provision does not apply retrospectively. In any event, as counsel agreed
    on appeal, the key factual inquiry governing the application of the new
    provision and the previous self-defence provisions is the same:  was the force
    used defensive and proportionate to the threat at hand. The trial judge
    rejected the defence on both bases.

[11]

The
    provision applied by the trial judge states:

34

(1)
A
    person is not guilty of an offence if

(a)
they believe on reasonable grounds that
    force is being used against them or another person or that a threat of force is
    being made against them or another person;

(b)
the act that constitutes the offence is
    committed for the purpose of defending or protecting themselves or the other
    person from that use or threat of force; and

(c)
the
    act committed is reasonable in the circumstances.

[12]

This
    defence is only available, as per s. 34(1)(c), if the actions of the appellant
    were reasonable in the circumstances. Section 37 provided that the defence was
    only available if no more force than was necessary to prevent the assault or
    the repetition of it was used. Further, the force could not be excessive. The
    appellant submitted that the trial judge erred in concluding that he had the
    time to extricate himself, and get out of the car. Even if the trial judge
    erred factually with respect to this issue, his ultimate finding was based on
    proportionality. The trial judge concluded that  even if the appellants
    evidence was accepted in its entirety  once he wrestled the knife from
    Courtemanche, stabbing him eight times was disproportionate to the threat he
    posed. In short, his conduct went far beyond what could be considered
    reasonable or necessary in the circumstances pursuant to either s. 34 or s. 37.

[13]

I
    see no error in the trial judges consideration of this defence.

[14]

Under
    s. 686(3)(b) of the
Criminal Code
, this court has the power to
    substitute the verdict that should have been found by the trial judge.
    Accordingly, I would quash the conviction for robbery, lift the stay and enter
    a conviction on the aggravated assault charge.

Weapons Dangerous

[15]

In
    convicting the appellant for possession of a weapon for a purpose dangerous to
    the public peace, the trial judge said this:

It is clear that the knife (a flick
    knife) used to stab John Courtemanche was the property of, or, at a very
    minimum, in the possession of Jean-Claude Breton. As such, possession of this
    weapon at the time of the commission of the offence fulfills the criteria for a
    conviction under section 88 of the
Criminal Code of Canada
.

[16]

The
    basis for the conviction was the use of the knife during the aggravated
    assault. This was a finding open to the trial judge. However, in light of the
    conviction that has now been entered for aggravated assault, the
Kienapple
principle
should be applied to stay that
    charge, along with its corresponding sentence of 12 months imprisonment.

Sentence

[17]

As
    a result of my conclusions, there is no reason to consider the appellants
    sentence appeal except to point out that  as conceded by the Crown  the
    appellant should have received enhanced credit of 1.5 days for each day spent in
    pre-trial custody (a reduction of 178 days), pursuant to
R. v. Summers
,
    2014 SCC 26, [2014] 1 S.C.R. 575.

Disposition

[18]

I
    would dismiss the appeal pursuant to s. 686(1)(b)(i) of the
Criminal Code
.
    In doing so, I would quash the appellants conviction for robbery, lift the
    conditional stay on the charge of aggravated assault, enter a conviction for
    aggravated assault, enter a stay on the weapons dangerous conviction, and remit
    the matter back to the trial judge for sentencing on the aggravated assault
    conviction, pursuant to s. 686(3)(b). The appellants convictions on three
    counts of breach of probation stand, along with the sentences imposed in
    relation to those convictions.

Released: June 1, 2016

M.L. Benotto J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bryce, 2016 ONCA 513

DATE: 20160627

DOCKET: C61799

Pepall, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keon Bryce

Appellant

Cate Martell, for the appellant

Jessica Smith Joy, for the respondent

Heard and released orally: June 15, 2016

On appeal from the judgment of Justice M.R. Dambrot of
    the Superior Court of Justice, dated November 13, 2015, granting
certiorari
quashing the appellants discharge ordered by Justice A. Di Zio of the Ontario
    Court of Justice, dated March 13, 2015.

ENDORSEMENT

[1]

We agree with the conclusion and the analysis of the reviewing judge.

[2]

Accordingly the appeal is dismissed.

S.E. Pepall J.A.

M. Tulloch J.A.

G. Pardu 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), (2.1), (2.2), (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 victim 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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right
    to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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. Crespo, 2016 ONCA 454

DATE: 20160610

DOCKET: C59193

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernando Crespo

Appellant

Najma Jamaldin, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: March 8 and 9, 2016

On appeal from the conviction entered by Justice Michael
    J. Epstein of the Ontario Court of Justice, on December 12, 2013 and from the
    sentence imposed on July 23, 2014.

B.W. Miller J.A.:

(1)

Overview

[1]

After a two-day trial before a judge alone, the appellant Fernando
    Crespo was convicted of the sexual assault of P.I., a friend of a woman he had begun
    dating one month earlier. He was sentenced to 15 months imprisonment, plus 18
    months probation. Because the appellant is a permanent resident of Canada and
    not a citizen, a consequence of the sentence is that he will be subject to
    removal from Canada at the conclusion of his custodial sentence. The appellant
    appeals from both conviction and sentence.

[2]

For the reasons that follow, I would dismiss both the conviction and
    sentence appeals.

(2)

Background

[3]

The appellant and L.I. had just begun dating. L.I. arranged an evening
    out so that she could introduce the appellant to her friend P.I. and P.I.s
    partner, O.B. After a night of heavy drinking and dancing, the four went to the
    appellants apartment. The appellant, P.I., and O.B. were all heavily
    intoxicated. L.I. was less so. At some point in the evening, P.I. was feeling
    unwell and went to lie down on the bed in the appellants bedroom. O.B. went
    with her. P.I. fell asleep on the bed, with O.B. beside her. O.B. later ended
    up asleep on the floor beside the bed.

[4]

L.I. and the appellant engaged in some foreplay in the living room
    before L.I. decided to go home. She went to check on P.I. in the bedroom, and found
    her asleep on her stomach with her dress hiked up. L.I. pulled P.I.s dress
    back down over her underwear, and then went to catch a taxi. The appellant walked
    L.I. to the taxi, and then returned to the apartment.

[5]

Shortly thereafter, P.I. was awakened by the feeling of the appellant on
    top of her, engaging in sexual intercourse. P.I. was still drunk and
    disoriented, and it took her a minute to realize that it was the appellant who
    was having sex with her, and not O.B. When she realized it was the appellant, she
    exclaimed and pushed him off. He left the room calmly and went to sleep on the
    couch in the living room. She tried to waken O.B., without initial success. She
    then sent the first of a series of text messages to L.I., telling her that she
    had just been raped by the appellant. She was eventually able to awaken O.B. The
    appellant and O.B. exchanged words and O.B. and P.I. left the apartment.

[6]

The appellant was convicted of sexual assault.

(3)

Issues

[7]

The appellant advances three main grounds on his conviction appeal.
    First, that the trial judge erred in finding that P.I. did not consent to sex
    with him. Second, that the trial judge erred in not considering the defence of
    honest but mistaken belief in consent. Third, that the trial judge erred by admitting
    into evidence text messages from P.I., L.I., and the appellant. With respect to
    sentence, the appellant submits that the trial judge erred in not considering
    the immigration consequences to the appellant in sentencing and failing to
    consider a conditional sentence.

(4)

Discussion

(1)

The defence of consent

[8]

The appellant argues that the trial judge erred in rejecting the
    appellants defence that P.I. consented to having sex with him. The appellant
    argues that it was a palpable and overriding error for the trial judge not to have
    considered L.I.s evidence of P.I.s attempted seduction of the appellant earlier
    in the evening and other material evidence said to undermine P.I.s claim not
    to have consented.

[9]

The insurmountable obstacle to this submission is the trial judges
    finding that P.I. was asleep when the appellant commenced intercourse, and thus
    lacked the capacity to consent at that time. Her prior conduct is therefore
    irrelevant to the question of whether she consented. On the facts as found by
    the trial judge, she could not have consented. The trial judge committed no
    error in rejecting the appellants defence of consent.

(2)

The defence of honest but mistaken belief in consent

[10]

Although
    the appellant did not, at trial, advance the defence of honest but mistaken
    belief in consent, he now argues that there was an air of reality to the
    defence and that the trial judge erred by not considering it. I do not agree that
    there was a sufficient factual foundation for this defence, as required by
R.
    v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 41-49, and would not give
    effect to this ground of appeal for the reasons set out below.

[11]

Unlike
    the defence of consent, it is possible for the defence of honest but mistaken
    belief in consent to be made out in circumstances where the complainant was
    asleep (or otherwise incapable of consenting) but appeared to be awake and
    consenting:
R. v. Esau
, [1997] 2 S.C.R. 777, at paras. 17-25. However,
    establishing this defence requires more than a bare assertion from the accused
    that the complainant was an active and willing participant:
R. v. Park
,
    [1995] 2 S.C.R. 836, at para. 20. A bare assertion, however, is all that the
    appellant provided.

[12]

The
    appellant argues that the circumstances of the case support his belief that P.I.
    was not asleep, but awake and in a blacked-out state when he sat down on the
    bed beside her. She initiated sexual activity with him, he says, and they
    engaged in sexual intercourse while she remained in a blacked-out state. Her
    amnesiac state accounts for her lack of memory of the commencement of sexual
    activity.

[13]

The
    appellant argues that P.I.s lack of memory of the initiation of sexual
    activity is as consistent with P.I. participating in sexual activity in a
    blacked-out state as it is with P.I. having been asleep.  As an evidential
    matter, he objects that P.I. simply has no memory of the incident and therefore
    no evidence to give as to whether she was an active and willing participant. The
    only evidence on that point, the appellant says, is his own and it should be
    accepted because no one else observed what was happening and his evidence was
    thus uncontradicted.

[14]

This
    evidential submission is deeply troubling. Were we to give effect to it, it
    would make the defence of honest but mistaken belief in consent
prima facie
available whenever a victim was asleep at the time of an assault, and the
    accused provided self-serving and unanswerable testimony as to the appearance
    of consent.  This would be a dangerous expansion of the doctrine and I would
    reject it.

[15]

The
    appellants main submission is that the trial judge erred by failing to
    consider that P.I. could have been awake but in a blacked-out state, actively engaging
    in sexual activity with the appellant, and thus leading him to reasonably
    believe that she was consenting.

[16]

For
    this argument, the appellant relies heavily on
R. v. Garciacruz
, 2015
    ONCA 27, 320 C.C.C. (3d) 414, an appeal concerning the sufficiency of a trial
    judges reasons. In
Garciacruz
, this court held that the trial judges
    factual findings were equally consistent with the complainant having remained
    asleep throughout intercourse, as with the alternative inference that the
    complainant consented to intercourse in a state of amnesia (at para. 67).

[17]

Garciacruz
,
    however, is readily distinguished from the present case. Significantly, the
    complainants evidence in
Garciacruz
supported the conclusion that she
    was in a blacked-out state well in advance of sexual activity with the accused,
    and remained in that state until she awoke the next morning. On the
    complainants evidence, everything went black after she had a few sips of gin
    and tonic at a bar, and she had only a few scattered and vague recollections
    thereafter (at para. 48). She was not intoxicated. She had virtually no memory
    of events between leaving the bar and waking up the next morning, including
    walking out of the bar, getting into a taxi, and going to the accuseds
    apartment, in the company of the accused and her cousin (at para. 56).

[18]

This
    court held in
Garciacruz
that the evidence supported two possible
    inferences: either the complainant was asleep at the time of sexual intercourse
    and did not consent, or she was in an amnesiac state from earlier in the
    evening, fell asleep, continued in the amnesiac state when she awoke, and then actively
    engaged in sexual intercourse with the accused while retaining no memory of it.
    The trial judges error in
Garciacruz
was a failure to give reasons that
    would have allowed this Court to determine whether the trial judge had considered
    the latter possibility, and his reasons for not accepting that it raised a
    reasonable doubt.

[19]

Unlike
Garciacruz
, the trial judges factual findings in this case foreclose
    the argument that the appellant advances. The factual findings in this case do
    not support the conclusion that P.I. was in an amnesiac or blacked-out state at
    any point in the evening prior to lying down and going to sleep on the
    appellants bed. There was a finding that she had some lapses in her memory due
    to alcohol consumption, and some disagreement with other witnesses about what
    occurred that evening. However, neither of these findings supports a conclusion
    that P.I. was in an amnesiac state. Unlike the complainant in
Garciacruz
,
    P.I. was aware of events and circumstances until the point that she fell
    asleep. And unlike the complainant in
Garciacruz
, she specifically
    remembered lying down to fall asleep and being awakened by the appellant having
    sex with her. She remembered doing many things immediately thereafter: trying
    to awaken O.B., texting L.I., calling her mother.

[20]

The
    appellants difficulties with the defence of honest but mistaken belief in
    consent do not stop there. The defence is only available where an accused has taken
    reasonable steps to ascertain consent: s. 273.2(b) of the
Criminal Code
(R.S.C. 1985, c. C-46)
;
Esau
,
    at para. 49. On the appellants evidence, the complainant looked him in the
    eyes, wrapped her legs around him, and helped him to remove his pants. The
    accused argues that this interaction amounts to having taken reasonable steps
    to ascertain consent. The trial judge, however, rejected the appellants evidence
    that this interaction occurred. There is no basis for appellate interference
    with this finding.

[21]

The
    appellants evidence was rejected by the trial judge on its own terms, and not
    simply because it conflicted with the complainants evidence. There were ample
    grounds to do so. The trial judge held:

The accused was an extremely poor witness. He was almost
    comically evasive when confronted with obvious inconsistencies [] I cannot
    accept his trial evidence that he remembered the complainant giving her consent
    in light of the contrary position he took with his friends and with police [] He
    swore to police on the lives of those he loved that he had no recollection. He
    says that was a lie. His evidence about the pills and the drink was so
    convoluted and evasive as to be unbelievable []

I simply do not believe the accused nor does his evidence raise
    a reasonable doubt in my mind. Moreover, on all the evidence I am satisfied
    that he came upon the complainant in the bedroom, observed that she was passed out
    and took advantage of her.

[22]

In
    light of these factual findings, the trial judge was not obliged to consider whether
    the appellant had an honest but mistaken belief in consent as that defence
    simply had no air of reality.

(3)

Admissibility of text messages

[23]

Text
    messages between L.I. and P.I., the appellant and L.I., and P.I. and the
    appellant were admitted into evidence with the appellants consent. The
    appellant brought a fresh evidence motion on appeal to introduce an affidavit
    from his defence counsel at trial stating that the appellant only consented to
    the admission of the text messages for the purposes of refreshing memory and
    for impeachment on cross-examination. He did not consent to the admission of P.I.s
    texts for the truth of their contents.

[24]

The
    appellant argues that the conviction rests on the texts, which are hearsay
    evidence and ought not to have been admitted, notwithstanding that trial
    counsel did not object to their use, and indeed made extensive use of them in
    cross-examination.

[25]

I
    would accept the fresh evidence, but it does not alter my conclusion on the
    admissibility and alleged misuse of the text messages. The difficulty with the
    appellants submission is that all the witnesses testified and adopted the
    statements made in the texts, with the exception of one text from P.I. that she
    could not recall having sent. The hearsay objection therefore falls away.

[26]

The
    appellant further objects that the trial judge erred by improperly relying on
    some of the text messages as prior consistent statements to bolster the
    credibility of P.I. A review of the trial judges reasons, however, does not
    support this argument. In any event, as noted above, the trial judge rejected
    the appellants evidence on its own terms.

(4)

Sentence

[27]

The
    appellant received a sentence of 15 months in custody. He appeals on the basis
    that the sentence is overly lengthy and disproportionate when considered in
    conjunction with the immigration consequences of the sentence. He also argues
    that the sentencing judge erred by failing to consider a conditional sentence. The
    appellant is an Ecuadorian national, and he introduced fresh evidence that he faces
    deportation at the conclusion of the custodial portion of his sentence.

[28]

Although
    the sentencing judge imposed the sentence requested by the defence, defence
    counsel did not appear to be alive to the immigration issue, and did not bring
    it to the attention of the sentencing judge. The appellant relies on the
    judgment of this court in
R. v. Nassri
, 2015 ONCA 316, 125 O.R. (3d)
    578, for the proposition that sentencing judges can take into account
    immigration consequences when sentencing.

[29]

The
    difficulty with the appellants submission is that, by operation of s. 36(1)(a)
    of the
Immigration and Refugee Protect Act
, S.C. 2001, c. 27, the
    appellant will face deportation if he receives any custodial sentence of six months
    or longer. However, a custodial sentence of less than six months, or a
    conditional sentence, would be manifestly unfit for the circumstances of this
    offender and this offence on the facts as found by the trial judge. As the
    Crown argues, consideration of immigration consequences cannot justify an
    otherwise inadequate sentence:
R. v. Freckleton
,
2016 ONCA 130.

[30]

I
    see no basis upon which to interfere with the sentence imposed, and I would
    decline to do so.

(5)     Disposition

[31]

For
    the reasons given, I would grant leave to admit the fresh evidence concerning
    the admission of text messages, and the fresh evidence related to the sentence
    appeal. I would dismiss both the appeal as to conviction and as to sentence.

Released: BWM  JUN 10 2016

B.W. Miller J.A.

I agree. John Laskin
    J.A.

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