COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farinacci, 2015 ONCA 392

DATE: 20150603

DOCKET: M44719, C56313 and C56422

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Len Farinacci Jr. and Lucas Farinacci

Appellants

Frank Addario and Rebecca McConchie, for the appellant
    Lucas Farinacci

R. Craig Bottomley and Chris Sewrattan, for the
    appellant Len Farinacci Jr.

Morris Pistyner and Lucas Price, for the respondent

Iain A.C. MacKinnon, for the moving parties Sun Media
    Corporation and Toronto Star Newspapers Ltd.

Heard: February 25, 2015

On appeal from the convictions entered on July 5, 2012 by
    Justice Linda M. Walters of the Superior Court of Justice, sitting with a jury.

Pardu J.A.:

[1]

Leonard and Lucas Farinacci appeal from their convictions for conspiracy
    to traffic in cocaine and for possession of proceeds of crime. They argue that
    their convictions must be overturned because jurors were exposed to extrinsic information
    about the case during the trial, and because the judge made a legal error in
    her instructions to the jury about conspiracy.

A.

Background

[2]

The appellants were arrested at the culmination of an investigation
    which included extensive surveillance and interception of thousands of private
    communications. Leonard Farinacci testified at trial and explained that he
    trafficked in steroids, not cocaine, and that his various meetings for product
    delivery and payment, and guarded telephone conversations had nothing to do
    with cocaine but were all for the purpose of dealing in steroids. Dwayne Forde
    was his biggest customer. While Dwayne Forde and his associates may well have
    been dealing cocaine and other drugs, Leonard Farinacci testified that he knew
    nothing about those activities.

[3]

Lucas Farinacci did not testify. He took the position at trial that
    there was no evidence to connect him with trafficking in cocaine. There were no
    incriminatory statements by him amongst the thousands of intercepted
    communications and he was never found in possession of cocaine or any of the
    equipment associated with a trafficking operation.

[4]

Both appellants were arrested on September 4, 2008. On that date,
    Leonard Farinacci travelled to Toronto and picked up an orange and black gym
    bag. It contained $200,840 in cash. He dropped the bag off at 2:03 p.m. at his
    brother Lucass home, then went to Gary Balls home. He accompanied Ball as
    Ball took a suitcase with $437,005 in it and placed it in Balls Infiniti. Ball
    then drove to Lucass home, and transferred the suitcase into Lucass wifes
    vehicle, a black Yukon. He removed the orange and black gym bag from Lucass
    garage (placed there minutes earlier by Leonard) and put it in the Yukon.

[5]

Earlier that day, Lucas had left his home and returned with a blue and
    black gym bag. He was not there when Leonard dropped off the orange and black
    gym bag but returned at 2:27 before Ball left. At 2:31 Ball came out of Lucass
    house and left in the Yukon with the suitcase and gym bag loaded with money.
    Lucas then removed Balls Infiniti from his driveway and was back home in 40
    seconds or so.

[6]

Ball was arrested and the suitcase and gym bag were seized at about 2:37
    p.m.

[7]

By 4:47 Leonard heard that Gary Ball was not answering his phone, and
    says he became concerned about his welfare. At 4:47 Leonard called Ball and
    there was no answer. At 4:48, Leonard called Lucas to relay his concerns and to
    see if Lucas knew where he was.

[8]

At 5:03, Joe Nikitczuk, close friend to Lucas, arrived at Lucass home. He
    was there for two minutes and came out with the blue and black gym bag. He was
    arrested four minutes later. Inside the gym bag was a notebook, highly
    suggestive of a debt list for substantial amounts of money, some amounts over a
    million dollars. Lucass fingerprints were identified in multiple locations in
    the notebook.

[9]

Both Lucas and Leonard were arrested later that day.

[10]

At
    trial Leonard called a witness who identified himself as a business consultant
    to suggest that the cash was intended for a legitimate business investment in
    Venezuela by Leonard Farinacci Sr., his father. The appellant Leonard Farinacci
    and his sister Leah both testified to the same effect at trial.

B.

Procedural History

[11]

The
    appellants were originally charged in a 15 count indictment in which they were
    charged with having conspired with Kent Akiyama and Gary Ball to traffic in
    cocaine, and to have done so in association with a criminal organization. They
    were also charged jointly with Gary Ball of possession of proceeds of crime. Leonard
    Farinacci was charged jointly with his mother and father (with whom he lived)
    with production of marihuana and possession for the purpose of trafficking in
    marihuana. Both Lucas and Leonard were charged with various firearms offences
    jointly with others and Leonard was also charged with possession of brass
    knuckles.

[12]

As
    a result of an agreement with the Crown, Leonard and Lucas each pleaded guilty
    to weapons offences before the jury trial. Leonard pleaded guilty to one count
    of transporting a firearm without authority and to possession of a prohibited
    weapon, the brass knuckles. Lucas pleaded guilty to possession of a prohibited
    weapon, a stun gun, without having a licence.

[13]

Counsel
    agreed that the trial judge would decide the criminal organization count after
    the jury verdict came in, and the accused were acquitted on that count.

[14]

In
    the result, the jury trial for the appellants proceeded on a two count
    indictment only, the conspiracy to traffic in cocaine, and the possession of
    the proceeds of crime. The jury did not know the appellants had pleaded guilty
    to weapons offences. They were convicted on both counts in the abbreviated
    indictment on July 5, 2012 following a four week jury trial.

[15]

After
    conviction but before sentencing, one of the jurors happened to be in a coffee
    shop commiserating with his uncle whose son had been charged with a criminal
    offence. He related some of his experiences as a juror and recommended to his
    uncle that his son opt for a trial before a judge without a jury. Someone
    happened to overhear the conversation, and juror #3 was soon visited by private
    investigators who asked him about whether he had been exposed to extrinsic
    information.

[16]

As
    a result of that information, the trial judge held an inquiry on October 23 and
    25, 2012, and questioned each juror as to whether he or she had seen or heard
    extrinsic information during the trial and deliberations. The purpose of the
    inquiry was to establish a record of what had happened.

[17]

The
    appellants were ultimately sentenced to lengthy terms of imprisonment.

C.

What extrinsic evidence entered in the jury room?

[18]

There
    was no real consensus amongst the jurors as to what if any extrinsic
    information made its way into the jury room. Without findings of fact by a
    judge at first instance, we are faced with the difficulty of making those
    findings on the basis of a transcript only.

(1)

Was there information from a retired police officer?

[19]

For
    example, juror #3 said that juror #6 said he had a friend who was a retired
    police officer in Hamilton. Juror #3 said that when he asked why there were no
    evidence of guns juror #6 said that this friend told him the rest of the family
    was charged, that someones wife or sister was going to be charged. Juror #6
    denied that he knew any retired police officers or that he had said any such
    thing.

(2)

Was there information from another friend?

[20]

Juror
    #3 said that juror #11 said someone told him Leonard Farinacci Sr. had spent
    some time in jail and that a lot more money over and above what was seized was
    involved. Juror #11, seated between jurors #3 and #6, did not recall hearing
    any information attributed to a retired police officer or a friend, and said he
    did not hear or provide any extrinsic information.

[21]

Nine
    of the jurors testified that they did not hear any information said to have
    come from a friend or any individual outside of the jury. In the end, I cannot
    find as a fact that information said to have been originally supplied by any
    friend or other individual was provided to the jury.

(3)

Information from Internet searches

[22]

Juror
    #6 admitted to having read at least two four year old articles in the St.
    Catharines Standard right after the trial started. He said other jurors wanted
    to know how old the appellants were, and that he looked that up and told the
    other jurors the appellants ages. He said he read something about a marihuana grow
    op and guns. He read that the appellants family members, father and sister had
    also been charged. He testified that he didnt give this information to other
    jurors, but juror #1 said that on the first day of trial another juror
    mentioned having looked something up on the St. Catharines Standard website
    that a dozen or so had been charged with cocaine related offences, including
    Dwayne Forde and that some others had been convicted. Juror #2 said someone
    searched the internet and said charges had been laid against other family
    members but that nothing was said about criminal activity by the appellants. There
    was some mention of Dwayne Forde, Leonard Farinacci Sr. and a marihuana grow
    op, and a charge against someone related to guns. This was mentioned sometime
    in the first half of the trial. Juror #3 said a few people made reference to
    googling something. Juror #12 heard someone mention that the father was
    charged. Many jurors said they did not hear this, but I am satisfied there was
    some discussion amongst some jurors of information contained in a local
    newspaper article published at the time of arrest four years before the trial,
    that there were other family members charged, and mention of a grow op and gun
    charges against unspecified other persons. .

[23]

Juror
    #5 said one of the other jurors said he read in a newspaper before trial that
    Kent Akiyami was involved. Jurors #9 and #10 remembered mention in the middle
    of the trial that Akiyami and Forde had had drug charges or trials related to
    cocaine. Juror #4 said that several times someone said others like Dwayne Forde
    who were alleged to be connected to the cocaine conspiracy were in jail or
    charged. She said this came as no surprise to the jurors, as they had guessed
    he was probably in jail.

[24]

Juror
    #12 said he googled the name Farinacci after the trial started and saw an
    article reporting on the prosecutors opening statement.

[25]

Juror
    #12 said that he and another juror looked up the price of cocaine on the
    internet at the beginning of the trial but that this information was confirmed
    later by the evidence of a Toronto detective who testified. His evidence was
    unchallenged. Juror #4 confirmed that one of the jurors looked up the price of
    cocaine.

D.

Analysis: Is there a reasonable possibility that extrinsic information affected
    the jurys verdict?

[26]

It
    is common ground that
R. v. Pan; R. v. Sawyer
, 2001 SCC 42, [2001] 2
    S.C.R. 344, at para. 59, expresses the governing test, [E]vidence indicating
    that the jury has been exposed to some information or influence from outside
    the jury should be admissible for the purpose of considering whether or not
    there is a reasonable possibility that this information or influence had an
    effect upon the jurys verdict.

[27]

On
    the other hand, jurors are not blank slates. They are expected to use their
    general knowledge, life experience and knowledge in coming to a decision. As
    observed in
R. v. Pan
, at para. 61:

Jurors are expected to bring to their task their entire lifes
    experiences. It is on the basis of what they know about human behaviour,
    knowledge that they have obviously acquired outside the courtroom, that they
    are requested to assess credibility and to draw inferences from proven facts.
    Even though not the object of evidence tendered in the trial, an opinion, a
    piece of general information, or even some specialized knowledge that a juror
    may reveal in the course of the deliberations, is not an extrinsic
    matter.  Typically, such information would not be the object of evidence
    tendered at trial.  It would be viewed as either irrelevant, too remote,
    or as attempting to usurp the functions of the jury.  On the other hand,
    if a juror, or a third party, conveys to the jury information that bears
    directly on the case at hand that was not admitted at trial, by reason of an
    oversight or a strategic decision by counsel or, worse yet, by operation of an
    exclusionary rule of admissibility, then it is truly a matter extrinsic to
    the deliberation process and the fact that it was introduced into that process
    may be revealed.

[28]

Mention
    that Dwayne Forde had been charged or convicted of cocaine offences could not
    have affected the verdict in this case, given the manner in which the evidence
    unfolded at trial. The substantial evidence that persons such as Dwayne Forde
    were trafficking in cocaine was uncontradicted. As juror #4 observed, the
    information that Dwayne Forde had been tried or convicted came as no surprise. There
    was very little mention of Akiyami in this trial. The whole tenor of Leonard
    Farinaccis evidence was that he did not know about the others activities,
    admittedly powerfully suggestive of trafficking in cocaine and other drugs. Lucas
    Farinaccis defence was that he had nothing to do with those activities.

[29]

In
    my view the evidence that other family members had been charged was of no
    consequence, given the appellants sisters evidence that all the family was
    co-accused.

[30]

It
    is not surprising that the arrests four years before trial were reported in the
    local newspaper. Lucas Farinacci was a local businessman charged with serious
    offences. No juror would have been disqualified for simply having read the news
    report. There was no challenge for cause on the ground of pretrial publicity in
    this case. I would infer that it was not considered a significant concern. It
    is reasonable to presume that jurors will honour their oath to decide the case
    only on the evidence heard in the courtroom. The information reported to the
    jurors by juror #6 was non-specific. Four jurors repeatedly reminded the others
    that they were to decide the case only on the evidence heard in the courtroom.

[31]

I
    am not satisfied that the other information, research about the price of
    cocaine and reading a report about the prosecutors opening statement had any
    impact on the jurys decision.

[32]

This
    is not a case where a jury was exposed to specific prejudicial information
    excluded from the trial. In other jurisdictions, courts have ordered new trials
    where the extrinsic information may have had a real impact on the verdict. In
Karakaya
a new trial was ordered for an accused charged with rape and indecent
    assault because the jury had downloaded articles critical of the justice
    systems treatment of rape cases. In
Dallas
an accused charged with
    grievous bodily harm was given a new trial because a juror had gone on the
    internet and found the accused had been previously charged, though acquitted of
    rape. Similarly in
R. v. Thompson and other appeals
, [2010] EWCA Crim
    2352, and
R. v. Thakrar
, [2008] EWCA Crim 2359 convictions were set
    aside when jurors discovered the accuseds previous convictions. In
Benbrika
    v. The Queen
, [2010] VSCA 281 a verdict in a terrorism case was not
    compromised by jury research on definitions.

[33]

Here
    the trial judge instructed the jury to ignore extrinsic information on her
    opening and closing addresses:

You must disregard completely any radio, television, newspaper
    accounts or Internet information you may have heard, seen or read about this
    case, or about any of the persons or places involved or mentioned in this
    trial. Those reports, and any other information about the case from outside the
    courtroom are not evidence.

It would not be fair to decide the case on the basis of
    information not introduced or tested by the parties in court and made part of
    the evidence at trial. You, not the media or anyone else, are the only judges
    of the facts.

[34]

She
    reiterated to decide what the facts are in this case, you must consider only
    the evidence that you saw and heard in the courtroom and defined evidence as
    the answers of witnesses to questions, exhibits and agreed facts. She told them
    not to be influenced by public opinion.

[35]

In
    many communities, members of the jury may well have been exposed to pretrial
    publicity about an accused. As observed in
R. v. Hubbert
(1975), 29
    C.C.C. the mere fact that a juror has prior information about a case or even
    that he or she holds a tentative opinion does not disqualify the juror.

[36]

Here,
    given the nature of the issues at trial, the diffuse nature of the information
    disclosed to other jurors from a four year old newspaper report, the fact that
    that extrinsic information disclosed was largely replicated by uncontested
    evidence at trial, and the instructions by the judge to consider only evidence
    adduced in the courtroom, I am not satisfied that there is a reasonable
    possibility that the extrinsic information that was disclosed in the jury room
    affected the jurys verdict.

[37]

The
    articles themselves, dated September 24 and 25, 2008 listed the charges against
    16 named persons of over 20 persons charged as a result of the investigation.
    As far as the jury knew, the accused were not tried on other charges mentioned
    in the article. After the trial judge opening statement, the questioning of
    witnesses over four weeks, counsels closing statements, and the trial judges
    instructions, I am not satisfied that there is a reasonable possibility that juror
    #6s reading of these articles, previously published in the community, on the
    first days of a four week trial affected the verdict.

E.

Was there an appearance of unfairness?

[38]

The
    appellants argue that even if there was no reasonable possibility that the
    extrinsic information affected the jurys verdict, the appearance of unfairness
    resulting from exposure of the jury to outside information requires a new
    trial.

[39]

I
    disagree. Jurors do not live in a bubble but are drawn from the community where
    the trial takes place. In any significant prosecution there will be some
    exposure to news reports of the arrest. During the trial jurors may seek news
    reports of the trial. The reporters opinion of the testimony may not always be
    subtly expressed. Sometimes retrials take place after the original evidence has
    been broadly publicized. There is however a distinction to be drawn between the
    mere publication of the facts of a case and situations where the media
    misrepresents the evidence, dredges up and widely publicizes discreditable
    incidents from an accuseds past or engages in speculation as to the accuseds
    guilt or innocence.(
R. v. Sherratt
, [1991] 1 S.C.R. 509 at p. 536)

[40]

In
    some cases where there is extensive publicity, at least some, if not all the
    jurors will be inevitably exposed to some aspects of it. This does not mean
    that a juror will not abide by his or her oath. Judges, after all, sometimes
    decide case in a sea of publicity.

[41]

Jurors,
    like judges, are presumed to govern themselves by the oath they swore to try
    the accused on the evidence adduced in the courtroom. As observed in
R. v.
    Spence
, [2005] 3 SCR 458 at para. 22:

Our collective experience is that when men and
    women are given a role in determining the outcome of a criminal prosecution,
    they take the responsibility seriously; they are impressed by the jurors oath
    and the solemnity of the proceedings; they feel a responsibility to each other
    and to the court to do the best job they can; and they listen to the judges
    instructions because they want to decide the case properly on the facts and the
    law. Over the years, people accused of serious crimes have generally chosen
    trial by jury in the expectation of a fair result. This confidence in the jury
    system on the part of those with the most at risk speaks to its strength. The
    confidence is reflected in the
Charter
guarantee of a trial by
    jury for crimes (other than military offences) that carry a penalty of five
    years or more (s. 11 (
f
)).

[42]

Here
    then, what to make of the fact that some jurors googled information about
    this case, contrary to the instructions of the trial judge? In this information
    rich age, devices able to access the internet are ubiquitous. Some people use
    their cell phones as reflexively as others might glance at a wristwatch. They
    might use them as a dictionary, to look at maps, the search the names of the
    accused, counsel, the judge, or to seek technological information. Legal
    research is available at the click of a button. Communication with others is
    nearly instantaneous. During the jury inquiry in this case, it was apparent
    that some jurors did not understand that they were violating the instructions
    of the trial judge. Some jurors may simply be curious, others may be trying to
    be helpful or get a better understanding of the case. The other reality is that
    in most cases, unless a juror talks about his or her online activity, it is
    likely to go undetected. While the information gathered here was relatively
    benign, and did not undermine the verdict or the fairness of the trial, that might
    not always be the case.

[43]

In
Online and Wired for Justice; Why Jurors Turn to the Internet
[1]
the authors refer to a San Diego court which had jurors sign declarations
    saying they will not use personal electronic and media devices (including
    computers, cell phones and laptops) to research or communicate about any aspect
    of the case.

[44]

The
    authors also refer to a sample jury instruction dealing with these issues:

You may not receive information about this case from any source
    other than what you are presented in this Courtroom concerning the case. That
    means do not google any party or lawyer or court personnel in this case; do
    not conduct any research whatsoever on the Internet about this case or the
    parties or facts involved in it; you may not blog about the case or events
    surrounding the case or your jury service; you may not tweet about anything
    to do with the parties, events or facts in this case or your jury service on
    this case. Do not send any email to anyone conveying your jury experience or
    information about this case. In the jury room, you are not to use your cell
    phone at recesses or lunch to call anyone to ask questions about issues in this
    case or to report facts about this case. You may not use Facebook, YouTube or
    any other social network on the Internet to discuss your jury service or
    issues in this case or people involved in the case, including the lawyers. Do
    not attempt to recreate by experiment at home any evidence which you hear as
    testimony in this Courtroom. Failure to abide by these instructions could
    result in your being found in contempt of court, or cause the trial to end.

[45]

They
    suggest this jury instruction could be given to jurors daily or more often; it
    could be given to the jurors in writing at the beginning of a case, and they
    could be asked to sign a copy to acknowledge that they have received the
    instruction and understand it.

[46]

Jurors
    could be told that if by happenstance they receive any extrinsic information
    they are not to share that with the other jurors. Model jury instructions tell
    the jurors to advise the trial judge immediately if someone tries to talk to them
    about the case. This could be expanded to direct the jurors to advise the judge
    if any member of the jury speaks about independent internet research.

[47]

Some
    trials, particularly a re-trial or one surrounded by extensive publicity may
    require an instruction about electronic research to the jury panel as a whole,
    to the jury at the start of the trial, part way though the trial, and in the
    final instructions. Useful examples of those instructions can be found in D.
    Watt,
Watts Manual of Criminal Jury Instructions
, 2nd ed. (Toronto:
    Carswell, 2015). For example, preliminary instruction 20A provides:

[5] Finally, in this case you are judges of the facts,
not
lawyers
    or investigators. You must
not
seek out any information, or do any
    research about the case, the persons involved in it, or the law that applies.
    Do
not
consult other people or other sources of information printed or
    electronic. Do
not
investigate any part of the case on your own or
    together with anybody else. Do
not
visit or have a look at any place
    or thing mentioned during the trial.

[6] Some, perhaps many of you, may (often) use communication
    devices like cellular telephones, PDA or other Blackberry devices or laptop
    computers. Some, perhaps many of you, may have an email account or a social
    networking account, such as Facebook, MySpace, LinkedIn or Twitter.

[7] We live in an age of instant electronic communication and
    research. In addition to not talking face-to-face with anyone about anything
    related to this case, or about any person or place involved in it, you must
not
communicate with anyone about this case or anyone or anything related to it by any
    other means. By communicate I mean you must not give, send, receive or
    research anything about or related to this case or any person involved in it.
    By any other means, I include (by) telephone, text messages, email, internet
    chat(s), blogs or social websites like Facebook, MySpace or Twitter.

[8] Do not provide any information about the case or anything,
    anyone, or any place involved in it to anyone by any (electronic) means
    whatsoever. Do not post any information about the case or anything, anyone, or
    any place involved in it, or what you are doing in this trial, on any device or
    internet site, including blogs, chat rooms, social websites or any other means.

[9] Do
not
Google or otherwise
search
for any
    information about this case, about the law that applies to this case, or about
    anyone, anything or any place involved in the case, including the person(s)
    charged, the witnesses, the lawyers or me.

[10] Let me explain to you why these rules are so important.

[11] First, we do not permit communications of the kind I have
    mentioned, either to you or from you, because, as jurors, you are the only
    persons our law authorizes to render a verdict. No one else can do so in this
    case. You are the only persons who have promised to be fair. No one else has
    made that promise. No one else has those qualifications.

[12] Second, we do not permit these communications because premature
    discussion or other information can lead to a premature or erroneous final
    decision about the case as a whole or essential parts of it.

[13] Third, we do not permit you to visit any place mentioned
    in the evidence. After all, you cannot always be sure that the place is the
    same now as it was when the events with which we are concerned took place. But
    even if the place were in the same condition now as then, once you go there to
    evaluate the evidence you have heard, or will hear, in light of what you see,
    you become a witness, not a juror. As a witness, your view of the scene may not
    be correct. But more importantly, neither party can do anything to correct your
    error. That is not fair to either party. How would you feel as a party if the
    judge or jury decided your case against you on this basis?

[14] Fourth, as you have all promised to do, you must base your
    decision solely on the evidence presented to you in this courtroom, by these
    parties, during this trial. It would not be fair to either (any) party for you
    to base your decision on information you have obtained outside the courtroom,
    information that may be incomplete, unreliable, or simply wrong.

[48]

Other
    brief trials with little or no publicity may require a much shorter
    instruction.

[49]

Human
    nature being what it is, it would be unrealistic to expect perfect compliance
    by jurors in all cases. In the event a breach comes to light, the inquiry must
    be made as the extent of the extrinsic information received, and whether other
    jurors were exposed to it.

[50]

In
    some cases, severe sanctions have been imposed on jurors who disobeyed
    instructions to refrain from internet research. In
Attorney General v.
    Dallas
[2012] EWHC 156 a juror was sentenced to six months jail for
    contempt of court for conducting research on the Internet, definitions of the
    word grievous and a newspaper report of an earlier rape allegation against
    the accused, and for sharing that information with other jurors.

[51]

This
    problem has affected trials in many jurisdictions. As observed in
R. v.
    Thompson
[2010] EWCA Crim 1623, by the Court of Appeal, Criminal Division:

The use of the internet has expanded rapidly in recent years
    and it is to be expected that many, perhaps most, jurors, will be experienced
    in its use and will make habitual reference to it in daily life. It has already
    impacted on the court in cases such as
R v Karakaya
[2005] EWCA Crim
    346, [2005] 2 Cr App R 77,
R v Marshall
[2007] EWCA Crim 35 and
R
    v Thakrar
[2008] EWCA Crim 2359, [2009] Crim LR 357; see also the
    experience in New Zealand,
R v B
[2008] NZCA 130, [2009] 1 NZLR 293.
    Just as it would in any other instance where it was satisfied that extraneous
    material had been introduced, the approach of this court is to make inquiries
    into the material. If, on examination, this material strikes at the fairness of
    the trial, because the jury has considered material adverse to the defendant
    with which he has had no or no proper opportunity to deal, the conviction is
    likely to be unsafe (
R v Karakaya
). If the material does not affect
    the safety of the conviction, the appeal will fail.

[52]

Here
    I am not persuaded that there is a reasonable possibility that the verdict was
    affected by the extrinsic information, that the trial was rendered unfair by
    the juror conduct or that the conviction is unsafe.

F.

Was there a legal error in the instructions on conspiracy?

[53]

The
    trial judge instructed the jury in accordance with
R. v. Carter
and
R.
    v. Mapara
, allowing a jury to consider a hearsay statement of a
    co-conspirator in furtherance of the conspiracy only after it has found (1)
    that the conspiracy existed beyond a reasonable doubt and (2) that the accused
    was probably a member of the conspiracy, by virtue only of direct evidence
    against him. (
Mapara
at paras. 8 and 22)

[54]

The
    appellants submit that the trial judge should have added an additional
    requirement, that the Crown prove that it is probable that the other alleged
    conspirator whose acts and declarations are in question is a party to the
    agreement based on his own acts and declarations.

[55]

I
    am not satisfied that this proposed additional instruction is necessary. It
    adds an additional layer of complexity to an already difficult charge. The
    requirement that the statement be made in furtherance of the conspiracy is a
    sufficient link to render the statement of the declarant admissible, given that
    by this stage the jury must have been convinced beyond a reasonable doubt that
    the conspiracy existed and on the balance of probabilities by evidence
    admissible directly against an accused that he was a member of the conspiracy.

[56]

In
    this case the trial judge instructed the jury as follows:

To determine whether you are satisfied beyond a reasonable
    doubt that Len Farinacci was a member of the conspiracy to traffic in cocaine,
    you are entitled to consider all of the evidence. You are not limited to Len
    Farinaccis own words and conduct. Besides that evidence, you may take into
    account anything that any other member of the conspiracy said or did while the
    conspiracy was ongoing for the purpose of achieving its object or purpose, of
    trafficking in cocaine.

It is not everything said or done by any member of the
    conspiracy, charged or uncharged, on trial or not on trial, on which you may
    rely to decide whether Crown counsel has proven beyond a reasonable doubt that
    Len Farinacci was a member of that conspiracy. There are two requirements. The
    words must be spoken and the acts must [be] done:

1)

while the conspiracy
    remains in existence; and

2)

in furtherance of the
    object or purpose of the conspiracy.

To be in furtherance of the object or purpose of the
    conspiracy, the words or acts must be for the purpose of advancing the objects
    of the conspiracy, carrying forward the common design, or taking steps in order
    to achieve its purpose. Recruiting others to join, obtaining any necessary
    funds or equipment, arranging for delivery of items required, and checking out
    escape routes are examples of words or acts in furtherance of the object or
    purpose of a conspiracy. The acts done do not have to be unlawful, but what is
    said must not be solely a recounting of prior events or references to other
    crimes unrelated to the conspiracy.

It is not necessary that Len be the person who actually did the
    act in furtherance of the conspiracy, or even that he understood it or knew
    about it. Similarly, it is not necessary that Len be the person who actually
    spoke the words in furtherance of the conspiracy, or even that he was there
    when they were spoken. A conspiracy is like a partnership in crime. Each member
    is an agent or partner of every other member and is bound by or responsible for
    the words and conduct of every other member spoken or done to further their
    unlawful scheme.

So, at this stage you will consider all of the evidence, that
    is Lens own words and actions along with the words and actions or conduct of
    any other member of the conspiracy, that is Mr. Forde, Mr. Ball, Mr. Aykiama,
    Len Farinacci, Lucas Farinacci and any other unknown member of the conspiracy,
    as long as what was said or done was while the conspiracy remained in existence
    and was in furtherance of the purpose of the conspiracy.

[57]

Nothing
    in the evidence in this case required the additional instruction now suggested
    by the appellants. They argue for example that the trial judges instruction required
    the jury to apply the evidence relating to Akiyama to the appellants. It is
    doubtful that a jury would have considered the acts of Akiyama to be in
    furtherance of a conspiracy. There were no declarations by Akiyama in evidence.
    His car was seen in proximity to Lucass Acura on one occasion. He was at the
    same restaurant as Leonard Farinacci and Leonard Farinacci Sr. on one occasion
    and there was an exchange of bags between Len Jr. and Len Sr. with Akiyama
    present, with no evidence as to the contents except from Leonard Farinacci who
    testified as to the anodyne nature of the switch of gym bags from one car to
    another. A search of Akiyamas home uncovered trace amounts of cocaine and
    scales. The evidence relating to Akiyama was a miniscule part of this trial.

[58]

The
    appellants argue that the evidence of unknown males who purchased cocaine from
    Dwayne Forde could have been unfairly attributed to them. The many unknown
    males who purchased cocaine from Dwayne Forde did not make statements in
    furtherance of the conspiracy, as defined by the trial judge. The recordings of
    their conversations with Forde were cogent evidence that Forde was trafficking
    in cocaine, a matter not seriously in dispute. It was not necessary here for
    the trial judge to tell the jury that the statements by the unknown males could
    not be used unless there was direct evidence admissible against each showing
    that they were members of the conspiracy.

G.

REQUEST FOR PUBLICATION BAN

[59]

With
    the release of these reasons, the publication ban imposed below expires.

[60]

In
    the event that this matter was sent back for a new trial, the Crown and the
    defence requested a publication ban of information which would identify the
    jurors or the extrinsic information. The media opposed the proposed ban, but
    agreed that the identities of the jurors should not be published. Since there
    will not be a new trial, no further publication ban is necessary, except, on
    the consent of the parties and the media, there will be an order prohibiting
    publication of any information which would identify any of the jurors.

H.

disposition

[61]

For
    these reasons, the appeals from conviction by the appellants are dismissed.

Released: June 3, 2015

(GP)

G. Pardu J.A.

I agree J.
    MacFarland J.A.

I agree M. Tulloch
    J.A.

[1]
Douglas L. Keene and Rita R, Handrich,
Online and Wired for Justice: Why
    Jurors Turn to the Internet
, The Jury Expert, The American Society of Trial
    Consultants, Nov. 2009, pp. 14-15, http://thejuryexpert.com/2009/11/online-and-wired-for-justice-why-jurors-turn-to-the-internet-the-google-mistrial.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fratia, 2015 ONCA 460

DATE: 20150624

DOCKET: C51746

Doherty, Cronk and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Domenico Fratia

Appellant

Murray D. Segal, for the appellant

Eric Siebenmorgen and Mabel Lai, for the respondent

Heard:  April 20, 2015, written submissions
    received April 27 and May 5, 2015.

On appeal from the sentence imposed by Justice H. Sachs
    of the Superior Court of Justice on December 9, 2009.

ENDORSEMENT

[1]

This appeal has a
    protracted history.  The appeal from conviction has been abandoned leaving only
    a sentence appeal.

[2]

The appellant was
    convicted by a jury of various offences, all arising out of the same scheme.
    The trial judge imposed sentences totaling five years and ordered that the
    appellant make restitution to the named parties in the amount of $100,000.

[3]

In her careful
    reasons for sentence, the trial judge thoroughly reviewed the evidence, the
    case law and the submissions of counsel.  She paid particular attention to the
    conditional sentence granted to a co-accused who had pled guilty.

[4]

The trial judge
    considered the longstanding and complex nature of the fraud perpetrated by the
    appellant, the significant financial loss caused by the fraud (over one million
    dollars), and the personal harm caused to individual victims of the fraud.  The
    trial judge also referred to the appellants role in the fraud which she
    described as that of a principal or planner.  The trial judge correctly
    considered both the nature of the crime and the appellants role in the crime
    to be aggravating factors.

[5]

The trial judge gave
    detailed consideration to the submission that the parity principle dictated
    that the appellant should receive a same or similar sentence as had a
    co-accused who received a conditional sentence.  The trial judge highlighted
    several differences between the appellant and the co-accused, including their
    respective roles in the crime and the co-accuseds guilty plea.  In her view,
    the distinctions between the co-accused and the appellant put the co-accused in
    a very different position for the purposes of sentencing.

[6]

The trial judge also
    reviewed the case law and properly observed that this court has stressed
    denunciation and deterrence as the key sentencing principles in cases involving
    large scale, complex frauds.  These principles dominate even for first
    offenders.  The appellant has a significant criminal record.  The trial judge
    also recognized, however, that there could be large scale, complex frauds where
    mitigating factors dictated lower sentences, even conditional sentences.  She
    found, however, that there were no mitigating factors justifying a departure
    from the normal range of sentencing in this case.

[7]

We see no error in
    principle in the trial judges reasons.  Her analysis of the parity and
    proportionality principles and her recognition of denunciation and deterrence
    as the dominant considerations are all consistent with the established
    jurisprudence.  The appellants crimes called for a significant penitentiary
    term.  Nothing in his personal circumstances justify the departure from the
    usual range of sentence for this kind of offence.  We cannot say that five
    years imprisonment was manifestly excessive.

[8]

In the normal course,
    our finding that the trial judge did not err in principle and that the sentence
    was not manifestly excessive would dictate that the appeal be dismissed.
    However, on consent, the parties have put material before the court relevant to
    events that occurred after the sentencing of the appellant.  The parties agree
    that this court should take those events into consideration and determine a fit
    sentence for the appellant in light of the changed circumstances.  The parties
    also agree that under the present circumstances the sentence should be
    reduced.  They disagree as to the quantum of that reduction.

[9]

Counsel have provided
    the court with several cases involving similar circumstances, although, as one
    would expect, none are on all fours with the present case.  The cases provided
    to us support a significant variation in the appellants sentence.  Bearing in
    mind that fixing the appropriate sentence is not an arithmetic exercise and
    that five years was appropriate on the facts as they existed before the trial
    judge, we think an appropriate sentence in the present circumstances is three
    years.

[10]

The sentence appeal
    is allowed and the sentence is varied to three years.

[11]

The parties filed
    material relevant to the post-sentence events under seal.  They jointly submit
    that the interests of justice dictate that the material should remain under
    seal unless, and until, otherwise ordered by this court.  We agree.

[12]

The appellants
    factum, attachments and casebook, dated April 27, 2015, the Crowns factum and
    attachment, dated May 5, 2015, and the appellants reply factum (undated) are
    all to remain under seal subject to any further order by this court.

Doherty J.A.

E.A. Cronk J.A.

Grant Huscroft J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

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

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15,
    c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Graziano, 2015 ONCA 491

DATE: 20150630

DOCKET: C57218

Laskin, Epstein and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Giuseppe Graziano

Appellant

Alejandro Munoz, for the appellant

Lorna Bolton, for the respondent

Heard: October 27, 2014

On appeal from the conviction entered on May 17, 2013,
    and the sentence imposed on June 21, 2013, by Justice Kim A. Carpenter-Gunn of
    the Superior Court of Justice, sitting without a jury.

Laskin
    J.A.:

A.

Overview

[1]

The appellant Giuseppe Graziano was a teacher in a Hamilton high school.
    After an eight-day trial before Carpenter-Gunn J., he was convicted of sexual
    interference with and sexual assault of J.M., a 14-year-old male student in
    Grade 9. He was sentenced to six months in jail. Initially he appealed both his
    convictions and his sentence, but he has now abandoned his sentence appeal and
    appeals only his convictions. The principal issue on the appeal is whether the
    trial judge erred by permitting the Crown to recall one of its witnesses in
    reply.

(a)

What this case is about

[2]

Two incidents in early 2011 gave rise to these proceedings, though the
    charges against the appellant arose out of the second incident. Credibility was
    the central issue at trial. The trial judge had to decide whether the
    appellants denial raised a reasonable doubt, and even if it did not, whether
    on all the evidence she did accept she was convinced of the appellants guilt
    beyond a reasonable doubt.

[3]

The first incident occurred on January 26, at the end of a French exam J.M.
    was writing. The appellant was not J.M.s teacher, but he was monitoring the
    exam. During the exam, the appellant had assisted J.M. with some of his
    answers, even, according to J.M., writing out several answers in J.M.s exam
    booklet.

[4]

J.M. testified that as he was leaving the exam room, after handing in his
    booklet, the appellant said to him you know you owe me, right?, made a
    gesture suggesting a hand job, and then said something like a blow job. In
    his testimony the appellant admitted saying you owe me, but denied making a
    hand gesture or saying anything suggestive of a blow job.

[5]

The second incident occurred two weeks later, on February 9. J.M. had
    been suspended from school for three days for his role in encouraging a fight between
    some other students. Just after the suspension had been imposed, the appellant
    saw J.M. in the hallway. The appellant testified that J.M. seemed angry, and that
    he asked to come inside the appellants classroom so he could vent about the
    suspension. J.M. testified that the appellant asked him to come in and discuss
    the French exam. Both agreed that the room was darkened or dimly lit, and that the
    appellant and J.M. were alone in it for about 30 minutes. J.M. testified that
    while he was there, the appellant asked him how big his penis was and whether
    he had ever done anything with another guy. He told J.M. not to tell anyone
    what he had said. As J.M. was leaving, the appellant asked to see his penis, to
    which J.M. said no. The appellant then touched J.M.s penis over his clothes.
    The appellant denied that he had asked about or touched J.M.s penis.

(b)

The trial judges reasons
    for conviction

[6]

The trial judges reasons are lengthy. She set out in detail the
    evidence of each witness. And she gave several reasons why she was convinced
    beyond a reasonable doubt of the appellants guilt.

[7]

Pivotal to the trial judges assessment of the evidence were J.M.s
    reactions and demeanour after the February 9 incident in the classroom. By all
    accounts, even that of the appellant, J.M. was angry and emotional on the
    afternoon of February 9. The defences theory was that J.M. was angry because
    he had been suspended from school and would not be permitted to play in an
    important basketball game. The Crowns theory was that J.M was angry and
    emotional, even tearful, according to some witnesses, because he had been
    sexually assaulted. In accepting the Crowns theory, the trial judge relied on
    video surveillance evidence and on the evidence of two of his classmates and
    that of an educational assistant, the first adult to whom J.M. disclosed what
    the appellant had done.

[8]

The school had a video surveillance system, which, though not used in
    the classrooms, intermittently scanned the schools hallways. The video
    captured some of J.M.s movements on February 9 after he left the classroom,
    including when he approached the appellant to speak to him about 30 minutes
    later. It also showed a conversation between J.M. and Vice-Principal Tim Hogan,
    who had suspended him. The trial judge found that the video corroborated J.M.s
    evidence, as it showed that his anger was directed not towards the
    vice-principal, but towards the appellant.

[9]

Two of J.M.s classmates, who saw J.M. on February 9 after he left the
    classroom, and the educational assistant, who saw him both before and after the
    classroom incident, all testified about J.M.s changed demeanour. In the light
    of this evidence and the video surveillance, the trial judge found that J.M.s
    change in demeanour was attributable to the sexual abuse, not to his
    suspension.

[10]

The
    trial judge also gave two other important reasons for rejecting the appellants
    evidence. The first was the appellants response when he was called to a
    meeting at the principals office on February 10, the day after the classroom
    incident. The appellant was told that an allegation had been made against him
    and that he was being suspended from teaching. He was not told the nature of
    the allegation, who had made it, or even whether the complainant was a male or
    a female student. Yet when told of the suspension, the appellant immediately
    asked, Is this about [J.M.]?

[11]

The
    other reason the trial judge gave for rejecting the appellants evidence arose
    out of the appellants brief encounter with Vice-Principal Hogan on February 9,
    shortly after the classroom incident. As I will discuss, the evidence of the
    appellant and Hogan about what was said at that meeting differed significantly.
    The trial judge accepted the evidence of Hogan, whom she found to be a
    thoughtful and credible witness.

[12]

The
    trial judge then summarized her reasons for convicting the appellant:

[M]y decision is primarily based on the independent video
    evidence, the post-event demeanour evidence, and the fact that there was no
    motive for [J.M.], the complainant, to lie about the evidence against the
    accused, combined with the events of the meeting of February 10, 2011, and also
    combined with the corroborating evidence of the other witnesses that I have
    articulated.

(c)

The grounds of appeal

[13]

In
    his factum, the appellant raised numerous grounds of appeal. In oral argument,
    however, the appellants counsel narrowed his appeal to three submissions. His
    first and main submission was that the trial judge erred by permitting the
    Crown to call Vice-Principal Hogan in reply. More specifically, the appellant
    argued that the trial judge erroneously concluded Hogans reply evidence was
    permissible under the rule in
Browne v. Dunn
(1893)
, 6 R. 67 (H.L. (Eng.)), yet gave
    no reasons for her conclusion.

[14]

The
    appellants second submission was that the trial judge improperly relied on the
    evidence of three parties who were not called as witnesses. The appellants
    third submission was that the trial judge failed to resolve inconsistencies in
    the evidence of J.M., which undermined the reliability and credibility of his
    evidence.

[15]

For
    the reasons that follow, I would not give effect to any of the appellants
    submissions. I would therefore dismiss his appeal.

B.

The issues on appeal

(1)

Did the trial judge err by
    permitting the Crown to call Hogan in reply?

(a)

How the issue arose

[16]

The
    Crown called as one of its witnesses, Vice-Principal Tim Hogan. In his evidence,
    Hogan acknowledged that on the afternoon of February 9 he met briefly with the
    appellant in the hallway. In cross-examination he was asked:

Q.      All right. So, youre there for a very brief period of  time?

A.      Yes.

Q.      Exchanged pleasantries with Mr. Graziano?

A.      I dont recall, but I could have.

Q.      Okay. It would be the normal thing to do, at least    acknowledge
    that hes there; right?

A.      Yes, sure.

[17]

Hogan
    was not questioned further about his brief encounter with the appellant.

[18]

The
    appellant testified. During his examination-in-chief, he said that when he
    spoke with J.M. in the classroom, J.M. was extremely upset about his suspension
    and was angry at Vice-Principal Hogan. The appellant said J.M. swore and called
    Hogan a fucking asshole. Shortly after J.M. left the classroom, the appellant
    encountered Hogan in the hallway.

[19]

The
    appellant claimed that during their encounter, Hogan commented to him, that
    kid [J.M.] is strange. Defence counsel then said to his client, I think I
    have to stop you there, because I dont want to hear that.

[20]

Crown
    counsel, however, objected that the comment the appellant attributed to Hogan
    had never been put to Hogan when he testified. Defence counsel then suggested
    that Crown counsel could ask the appellant about his encounter with Hogan.

[21]

In
    cross-examination, Crown counsel put to the appellant that he had said nothing
    to Hogan about J.M.s anger or that J.M. (according to the appellant) was
    vitriolic toward Hogan and had called him a fucking asshole. The appellant
    responded, oh, yes, I did. The Crown again complained that the appellants
    evidence had not been put to Hogan when he testified. Eventually the trial
    judge intervened and observed that a potential remedy was available: the Crown
    could recall Hogan. Defence counsel said nothing and the Crown continued his
    cross-examination about what the appellant had said to Hogan.

[22]

The
    appellant then testified that he had a more detailed conversation with Hogan
    than a mere exchange of pleasantries, as Hogan had testified to in his
    evidence. The appellant repeated that Hogan had said that kid is weird. The cross-examination
    continued:

Q.      Okay, sir. But, did you go so far as to say, This was
    something Ive never seen before, Mr. Hogan. This kid was out of control. He
    was calling you every name in the book. And, Im telling you, hes one angry
    kid. In fact, he left here saying the first person he sees, hes going to punch
    out?

A.      Correct.

Q.      Did you tell him all that?

A.      Well, I did say, He has been calling you effin
    asshole up and down and he was very angry. He says, I dont care. Thats my
    job.

Q.      But, Im curious. Why couldnt Mr. Hogan have been
    asked that? I guess maybe you dont know the answer to that. But, is this
    something you told Mr. Markle?

A.      Yes.

Q.      I see. And, you have related to Mr. Hogan the concerns
    you had for his safety, the extent of the tirade by young [J.M.] in the room. And,
    did you explain to him that you had, in fact, harboured [J.M.] for the 35 or 40
    minutes?

A.      Well, it wasnt 35, no, 40. It was less than that. But,
    yes, I did tell him.

Q.      I see.

A.      I had nothing to hide. I explained to Mr. Hogan
    everything that had gone on. We had a brief discussion, the two of us. And,
    that was that.

[23]

The
    next morning, counsel discussed how to deal with the appellants testimony
    about his conversation with Hogan, which Hogan had not been asked about. The
    Crown and the trial judge thought that the rule in
Browne v. Dunn
came
    into play. The trial judge said:

And, I made the suggestion yesterday that one way of dealing
    with it is to re-call Mr. Hogan. And, weve got to be sensitive and alive to
Browne
    v. Dunn
on the one hand, and we dont know  we cant split the case on
    the other hand, but it is an important area.

[24]

And
    then a few minutes later, the trial judge added:

But, now this issue is out there, and we have already had this
    other witness in the box. So, I think it is a
Browne v. Dunn
situation.
    So, I tend to agree with the Crown that it is that type of situation. So, the
    question is, what do we do about it, at this point?

[25]

The
    Crown announced that he intended to call Hogan in reply. And, just before court
    adjourned for the day, the Crown reiterated that he intended to re-call Hogan. Defence
    counsel did not then raise any objection to re-calling Hogan.
[1]

[26]

Hogan
    testified in reply. He denied having the conversation with the appellant to
    which the appellant testified. He did not refer to J.M. as strange, and the
    appellant never told him J.M. had called him a fucking asshole. Hogan said
    that had J.M. done so, he would likely have increased the length of his
    suspension.

(b)

The submissions at trial on
    Browne v. Dunn

[27]

After
    Hogans reply evidence concluded, the trial judge heard submissions on a number
    of issues, including
Browne v. Dunn
. The majority of these submissions
    concerned the appellants testimony about what J.M. said to him. The Crown objected
    that statements attributed to J.M. were not put to him during
    cross-examination. The Crown said it did not wish to recall J.M., but asked
    that the trial judge apply the rule in
Browne v. Dunn
and give little or
    no weight to the appellants testimony.

[28]

Defence
    counsel submitted that the rule in
Browne v. Dunn
had not been breached and
    that the court should not discount the appellants evidence. Like the Crown,
    the majority of the defence submissions concerned the appellants evidence
    about J.M. and whether
Browne v. Dunn
applied to that part of his testimony.

[29]

Defence counsels
    submissions about Hogan largely concerned an issue related to solicitor-client
    privilege. With respect to
Browne v. Dunn,
defence counsel did object
    that it was improper for the Crown to elicit answers during cross-examination
    in order to rely on the rule. However, defence counsel never expressed any
    objection to Hogans having been called as a reply witness. Nor did he suggest
    that Hogans evidence should not be relied on.

(c)

The trial judges reliance
    on Hogans evidence

[30]

The
    trial judge found Hogan to be a credible witness and relied heavily on his
    evidence to disbelieve the appellants testimony about the incident in the classroom
    with J.M. Indeed, the trial judge referred to Hogans evidence and why she
    accepted it over the appellants evidence in three separate passages in her
    reasons. First she said:

Where there is a conflict between the evidence of the accused
    and Mr. Hogan, the Vice Principal, I accept the evidence of Mr. Hogan. Mr.
    Hogan is an independent witness to the matters in issue. I find he was a
    thoughtful, credible witness. I was impressed by his demeanour.

Mr. Hogan denied many statements that the accused said were
    part of the conversation between the accused and Mr. Hogan. For example, that
    the accused told Mr. Hogan that [J.M.] had called him, A fucking asshole. I
    accept Mr. Hogans evidence that had this information been given to Mr. Hogan,
    he would have increased [J.M.s] suspension and he would have been shocked.

[31]

Then:

I found Mr. Hogans evidence to be credible. I found Mr.
    Hogans evidence discredits the accuseds evidence as to what he said he had
    told Mr. Hogan.

This finding leads me to the conclusion that the accuseds
    testimony about what took place in the classroom on February 9, 2011, should
    not be accepted. Rather I accept [J.M.s] testimony as to what took place in
    the classroom on February 9, 2011.

[32]

And
    finally:

I also note that the reply evidence of Mr. Hogan was
    unchallenged by the defendant. Given this, I find an inference can be made that
    Mr. Graziano lied about what he says was the substance of the conversation
    between he and Mr. Hogan.

I find if Mr. Graziano had said things to Mr. Hogan on February
    9
th
that he says were discussed that the meeting of February 10 in
    the school office would have been quite different than it in fact was.

[33]

Hogans
    evidence, including his reply evidence, was central to the trial judges
    credibility findings. If she erred in permitting the Crown to call Hogan in
    reply, then the appellant would be entitled to a new trial.

(d)

Discussion

[34]

The
    trial judge viewed the issue as one calling for consideration of the rule in
Browne
    v. Dunn
. The appellant submits that if that was her view, she erred by
    failing to give any reasons for concluding that the rule allowed the Crown to
    call Hogan in reply.

[35]

I
    do not think that the rule in
Browne v. Dunn
applies to the situation
    that arose on the appellants cross-examination. This court summarized the rule
    in
R. v. Henderson
(1999), 44 O.R. (3d) 628 (C.A.), at p. 636:

This well-known rule stands for the proposition that if counsel
    is going to challenge the credibility of a witness by calling contradictory
    evidence, the witness must be given the chance to address the contradictory
    evidence in cross-examination while he or she is in the witness-box.

[36]

Here,
    however, defence counsel did not call contradictory evidence from his client.
    Quite the contrary. He did not wish to lead evidence from his client about any
    conversation between the appellant and Hogan. Had he done so, without first
    putting the contradictory evidence to Hogan on cross-examination, then
    depending on the significance of the evidence, the rule in
Browne v. Dunn
might well have been breached.

[37]

But
    the evidence the Crown wanted to address by calling Hogan in reply came from
    the appellant almost entirely during his cross-examination. Thus, to the extent
    the trial judge relied on the rule in
Browne v. Dunn
to permit the
    Crown to call Hogan in reply, she erred. The proper approach would have been to
    consider whether permitting the Crown to call Hogan in reply offended the rule
    that prohibits the Crown from splitting its case. In
Krause v. The Queen
(1986), 29 C.C.C. (3d) 385 (S.C.C.), at pp. 390-91, McIntyre J. set out the
    rule against case-splitting and its rationale:

The general rule is that the Crown, or in civil matters the
    plaintiff, will not be allowed to split its case. The Crown or the plaintiff
    must produce and enter in its own case all the clearly relevant evidence it
    has, or that it intends to rely upon, to establish its case with respect to all
    the issues raised in the pleadings; in a criminal case, the indictment and any
    particulars The underlying reason for this rule is that the defendant or the
    accused is entitled at the close of the Crowns case to have before it the full
    case for the Crown so that it is known from the outset what must be met in
    response. [Citations omitted.]

[38]

In
    my opinion, however, the Crowns calling Hogan in reply did not breach this
    rule. In
Krause
, at p. 391, McIntyre J. discussed the exception to the
    rule against case-splitting  that is, when the Crown may be entitled to call
    reply evidence:

The plaintiff or the Crown may be allowed to call evidence in rebuttal
    after completion of the defence case, where the defence has raised some new
    matter or defence which the Crown has had no opportunity to deal with and which
    the Crown or the plaintiff could not reasonably have anticipated.

[39]

It
    seems to me the exception referred to in
Krause
applies here. In his
    examination-in-chief, the appellant had testified about J.M.s angry and
    vitriolic comments about Hogan. He had also testified, albeit briefly, that he
    and Hogan discussed J.M. It was reasonable for the Crown to test the
    appellants evidence, as he did, by suggesting that if J.M. had said the things
    the appellant claimed, the appellant would have reported the exchange to Hogan.
    The appellant claimed he did tell Hogan, and recounted their conversation. And,
    even though defence counsel intentionally chose not to question his client
    about his conversation with Hogan, it was the appellant who brought up the conversation
    during his examination-in-chief, and expanded on it under cross-examination.

[40]

The
    Crown could not reasonably have anticipated the appellants evidence about his
    conversation with Hogan, and thus had no opportunity to deal with it during
    Hogans examination-in-chief. And it was important evidence because unless it
    was contradicted, it seemed to support the defences theory that J.M. was angry
    and emotional because of his suspension from school, and not because he had
    been sexually assaulted. Thus, I think it was within the trial judges
    discretion to permit the Crown to call Hogan in reply. Moreover, defence
    counsel at trial made at most a lukewarm objection to this reply evidence being
    called. Accordingly, I would not give effect to the appellants main ground of
    appeal.

(2)

Did the trial judge improperly
    rely on the evidence of three parties who were not called as witnesses?

[41]

In
    her lengthy reasons, the trial judge referred to an email from a woman named
    Nancy Brown, who apparently commuted daily to the school with the appellant.
    The appellant had been ordered by the school board not to talk to anyone about
    the incident with J.M. The contents of Ms. Browns email suggested he had
    breached this order, and the trial judge so found. Nancy Brown, however, was
    not called as a witness at trial. Her email was thus inadmissible hearsay.

[42]

The
    Crown on appeal acknowledges that the trial judge should not have used the
    contents of the email to comment adversely on the appellant. However, the Crown
    submits the trial judges error in doing so was harmless. I agree. In rejecting
    the appellants evidence the trial judge did not rely on the email.

[43]

Similarly,
    in her lengthy narrative of the evidence, the trial judge referred to
    statements given by two other students. Although neither student was called as
    a witness, and thus their statements were inadmissible hearsay, the trial judge
    did not rely in any way on either students statement.

[44]

I
    would dismiss this ground of appeal.

(3)

Did the trial judge err by failing
    to resolve inconsistencies in the evidence of J.M.?

[45]

The
    appellant submits that there were inconsistencies in J.M.s evidence, that they
    undermined the reliability and credibility of his testimony, and that the trial
    judge erred by failing to resolve these inconsistencies. I do not agree with
    the appellants submission.

[46]

The
    trial judge expressly addressed inconsistencies in J.M.s evidence. But she
    found that on the two critical questions  what happened on January 26 during
    the French exam and what happened on February 9 in the classroom  the thrust
    of [J.M.s] evidence remained the same. She did not err in that finding. Thus,
    I would not give effect to this ground of appeal.

(4)

Other issues

[47]

The appellant raised several other issues in his notice of appeal and
    his factum, which he did not press in oral submissions. These included that the
    trial judge erred in her application of
R. v. W.(D.)
, [1991] 1 S.C.R.
    742; that she erred in not ruling on whether the Crown had improperly asked the
    appellant to waive solicitor-client privilege; and that she erred in admitting
    similar fact evidence. As I have said, the appellant did not pursue these
    issues and I see no merit to them. I would dismiss these grounds of appeal.

C.

Conclusion

[48]

I
    would dismiss the appellants appeal from his convictions. The sentence appeal is
    dismissed as abandoned.

Released: June 30, 2015 JL

John
    Laskin J.A.

I
    agree Gloria Epstein J.A.

I
    agree K. van Rensburg J.A.

[1]
Crown counsel said he may also wish to call J.M. in reply because the appellant
    had given evidence about his conversations with J.M. which were not put to him
    in cross-examination. Defence counsel did express concerns about recalling J.M.
    This concern did not have to be resolved because the Crown elected not to call
    J.M. in reply.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grewal, 2015 ONCA 482

DATE: 20150626

DOCKET: C58526

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

BETWEEN

Her Majesty the Queen

Respondent

and

Parminder Grewal

Appellant

Carolyne Kerr, for the appellant

Mabel Lai, for the respondent

Heard and released orally: June 18, 2015

On appeal from the conviction entered on September 27,
    2012 by Justice David P. Cole of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant seeks to overturn the trial judges refusal to set aside
    his plea of guilty to a charge of aggravated assault. The appellant submits
    that the plea was not unequivocal, his trial counsel was ineffective, and
    defences available to him were not advanced.

[2]

We reject these submissions.

[3]

Before the plea was entered, counsel for the appellant advised the court
    that he had undertaken a plea inquiry, and that the appellant wished to plead
    guilty. At the time of the plea, the Crown read a detailed recitation of the
    facts. At the conclusion, the appellants counsel stated that he had reviewed
    the facts with his client and that they were substantially correct. He raised
    four qualifications, none of which goes to the substance of the allegations. In
    light of the facts admitted, the qualifications do not reasonably give rise to
    a defence.

[4]

The appellant personally pleaded guilty to the charge. He had pleaded
    guilty to other charges in the past. In this case, he was assisted by a Punjabi
    interpreter, represented by an experienced Punjabi counsel, and supported
    throughout by his family members. His instructions were clear. They were
    written, translated and signed by him. Several weeks later, the appellant
    sought to strike the plea.

[5]

The trial judge made findings of credibility. He accepted the evidence
    of the appellants trial counsel regarding the entry of the plea. With respect
    to the appellant, the trial judge expressly disbelieved him, adding, I didnt
    believe a word of what he said. In his reasons for sentence, the trial judge
    noted that the appellant was someone whose criminal background and age clearly
    indicated that he was quite familiar with the workings of the criminal justice
    system.

[6]

The trial judge found that trial counsel had been effective and the plea
    was voluntary, informed and unequivocal. In his reasons for sentence, he
    reiterated that the appellant had utterly failed to demonstrate that his guilty
    plea should be struck. The evidence supported these findings.

[7]

We appreciate that, before this court, the appellant renews his claim that
    his plea to aggravated assault was occasioned by the ineffective representation
    of his trial counsel. In particular, he submits that trial counsels
    representation fell below the applicable standard because he failed to review
    the elements of the offence of obstruct justice with the appellant, or to
    advise him of the potential defence of self-defence.

[8]

Our previous comments regarding the nature of the plea, set out above, also
    apply to the trial judges ruling on the appellants ineffective assistance
    claim. We agree with that ruling. In our view, critically, the appellant has
    failed to demonstrate any prejudice amounting to a miscarriage of justice
    arising from the conduct of his trial counsel.

[9]

We note that the appellant was liable to a significant jail sentence
    upon conviction of the multiple charges that he faced. The negotiated results
    achieved by his trial counsel eliminated that risk. At trial, the Crown
    submitted that the aggravated assault charge itself should attract a four year
    sentence as negotiated by counsel at trial. The trial judge could have accepted
    that submission, which reflected a sentence within the range supported by the
    case law. He did not do so. Instead, he imposed a sentence of 33 months in
    jail, after three months credit to acknowledge the appellants guilty plea.

[10]

The
    prejudice requirement of an ineffective assistance claim not having been demonstrated,
    the appeal fails.

[11]

For
    these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

E.A. Cronk J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hart, 2015 ONCA 480

DATE: 20150626

DOCKET: C58942

MacPherson, Simmons, and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Matthew Everett William
    Hart

Respondent

Alison Wheeler, for the appellant

Michael Lacy and Anida Chiodo, for the respondent

Heard: June 23, 2015

On appeal from the sentence imposed on May
    28, 2014 by Justice Nathalie Gregson of the Ontario Court of Justice.

ENDORSEMENT

[1]

The respondent pleaded guilty to intentionally
    or recklessly causing damage by fire to a dwelling house. He acknowledged setting
    fire to a carport, which ended up setting fire to the attached home where five
    people resided. No one was injured, and as the trial judge expressed it at
    para. 50 of her reasons: Fortunately the consequences were not more serious. The
    appellant said he did not intend to cause a big fire  but clearly his actions
    were reckless  and that his acts stemmed from a drug debt he owed to one of
    the residents. He was 20 years old at the time of the offence and has a youth
    record and a history of mental health issues.

[2]

The Crown proposed a
    sentence of 9  12 months in custody and three years probation.
The trial judge suspended the passing of
    sentence and imposed a three-year period of probation, along with various
    ancillary orders.

[3]

Among several other
    terms, the probation order imposed by the trial judge requires that the
    respondent attend any counseling deemed necessary by his probation officer,
    including substance use and mental health assessments; attend to meet regularly
    with his medical doctor, including his psychiatrist, and comply with any
    treatment or counselling as recommended by them to deal with his mental health
    issues; and attend and meet regularly with a mental health worker at the
    Canadian Mental Health Association for counselling.

[4]

The Crown appeals the sentence imposed and
    submits that the trial judge overemphasized the issue of mental illness and
    prospects for rehabilitation in deciding on a non-custodial sentence. While the
    Crown accepts that in exceptional circumstances a suspended sentence may be
    appropriate, it says that this is not such a case.

[5]

We disagree. In our view the trial judge properly
    considered the issues of mental health and rehabilitation together with several
    other mitigating factors and arrived at a fit sentence.

[6]

In
R.
    v. Prioriello
,
2012
    ONCA 63 at paras. 11  12
,
this court suggested that a causal link was required between mental
    illness and the criminal offence before a mental illness could be considered as
    a mitigating factor in sentencing.
Here, t
he inference of a mental health issue was
    available to the trial judge based on the materials before her, including the
    pre-sentence report. She was able, in our view, to properly infer that mental
    health played a causal role in the commission of the offence.

[7]

It is clear from the record that the respondent
    had a history of mental health issues. The pre-sentence report evaluates the
    respondent and describes his circumstances as follows:

What has brought
    this young man before the Courts, as a youth and now as an adult, are his
    identified mental health issues: Tourettes Syndrome, Attention Deficit
    Hyperactivity Disorder, Conduct Disorder and Obsessive Compulsive Disorder and
    his resulting behavior.

The factors that
    place the offender before the court and at greatest risk of recidivism are his
    mental health issues, peer group choices and substance abuse.

[8]

The record also supports the trial judges
    conclusion at para. 50 of her reasons, namely: To now impose a custodial
    sentence would likely destroy any progress that has been made by Mr. Hart with
    respect to his mental health and in my view serve no genuine societal
    interest.

[9]

The trial judge, at para. 25 of her reasons, set
    out the many aggravating and mitigating factors  one of which was mental
    health issues  that she considered and weighed in arriving at the sentence she
    imposed. We see no error in her thorough analysis.

[10]

Finally, when the issue of mental illness is
    taken into consideration along with the other mitigating factors  a guilty
    plea, the youth of the offender, the fact that he had no adult record, his show
    of remorse, that he had no further criminal charges since 2011, and that he
    cooperated with the police  the sentence is not manifestly unfit.

[11]

The trial judges decision is entitled to
    deference from this court and the appeal is dismissed.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.

H.S.
    LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hockey, 2015 ONCA 421

DATE: 20150610

DOCKET: C58248

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devin Hockey

Appellant

Richard Litkowski, for the appellant

John McInnes, for the respondent

Heard and released orally: May 26, 2015

On appeal from the conviction entered on November 21,
    2013 and the sentence imposed on January 14, 2014 by Justice Robert F. Scott of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for aggravated assault and assault
    with a weapon arising from an incident outside a bar in Trenton. He appeals his
    convictions on three grounds:

(1) the
    trial judge erred in his assessment of the appellants evidence and in
    particular, misapplied
W.D.
in his treatment of the appellants two
    police statements;

(2) the
    trial judge erred in his assessment of the evidence of the witness Howell; and

(3) the
    trial judge erred in his assessment of the evidence of the witness Todd.

[2]

The context for the appellants submissions is important. The eye injury
    to the victim Schubert could have been inflicted only by the appellant or by
    Todd. Not a single witness said Todd was the assailant. Schubert, whom the
    trial judge found credible and whose evidence he accepted, said that though,
    he, Schubert, had had a confrontation with Todd both in and out of the taxi, he
    was certain that Todd was not the assailant. Todd denied that he was the
    assailant and Howell identified the appellant as the assailant. Thus, the
    evidence of the three key witnesses in this case all pointed to the appellant
    as being the assailant. With that context we now turn to the appellants
    submissions.

[3]

First, the principles in
W.D.
apply to the appellants two
    police statements and we accept that the trial judge used loose language in
    describing their application. Nonetheless from reading his reasons we are
    satisfied that he applied the reasonable doubt standard to the appellants two
    statements. Indeed at the end of his reasons he expressly said: I have
    considered what evidence I have of the defendant as favourably as I could.

[4]

The trial judge rejected the appellants evidence in his police
    statements because of various inconsistencies he identified. A few of these
    inconsistencies seem minor. But we agree with the Crown that on critical points,
    for example, when the appellant first saw blood and how the fight unfolded, the
    appellants evidence changed significantly during the course of his statements.
    Thus, we see no basis to interfere with the trial judges rejection of the
    appellants evidence.

[5]

Second, the trial judge could perhaps have said more about Howells
    evidence but these were oral reasons given after a relatively short trial. The
    trial judge recognized that Howell was drunk but accepted that he could
    identify the perpetrator of this horrific incident. He did not err in his acceptance
    of Howells evidence.

[6]

Third, similarly the trial judge was entitled to accept Todds evidence.
    It was consistent with Schuberts evidence which, as we have said the trial
    judge believed.

[7]

Accordingly the appeal is dismissed.

John Laskin J.A.

J. MacFarland J.A.

Paul Rouleau J.A.


WARNING

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

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

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

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144 (rape),
    145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

(2)
In proceedings in respect of the offences referred to
    in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

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

(3)
In proceedings in respect of an offence under section
    163.1, a judge or justice shall make an order directing that any information
    that could identify a witness who is under the age of eighteen years, or any
    person who is the subject of a representation, written material or a recording
    that constitutes child pornography within the meaning of that section, shall
    not be published in any document or broadcast or transmitted in any way.

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For greater certainty, an order referred to in subsection
    (1) applies to prohibit, in relation to proceedings taken against any person
    who fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.K., 2015 ONCA 458

DATE: 20150622

DOCKET: C59478

Laskin, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

J.K.

Respondent

David Friesen, for the appellant

Julianna Greenspan and Joanna Baron, for the respondent

Heard: June 16, 2015

On appeal from the sentence imposed on September 23, 2014
    by Justice Catherine Mathias McDonald of the Ontario Court of Justice.

Gillese J.A.:

[1]

J.K. (the respondent) pleaded guilty to breaking and entering the
    complainants residence and committing the indictable offence of sexual
    assault, contrary to s. 348(1)(b) of the
Criminal Code
, R.S.C. 1985,
    c. C-46.

[2]

Pursuant to s. 490.012(2) of the
Criminal Code
, the Crown applied
    to the sentencing judge for an order under the
Sex Offender Information
    Registration Act
, S.C. 2004, c. 10 (
SOIRA
).  The sentencing judge
    initially imposed the order.  She later rescinded the order because, in her
    view, an offence under s. 348(1)(b) is not a designated offence for the
    purpose of s. 490.012(2) and, accordingly, no
SOIRA
order was available.

[3]

The Crown appeals.  It submits that the sentencing judge misapprehended
    s. 348(1) and, based on that misapprehension, improperly rescinded the
SOIRA
order.

[4]

The respondent submits that no
SOIRA
order was available in this
    case.  He was charged, pleaded guilty, convicted, and sentenced under s.
    348(1)(b), not s. 348(1)(d).  He says that while s. 348(1)(d) is a designated
    offence for the purposes of a
SOIRA
order under s. 490.012(2), s. 348(1)(b)
    is not.  He contends that the Crown cannot benefit from his guilty plea under
    s. 348(1)(b) and then, post-plea, demand an order ancillary to s. 348(1)(d).

[5]

I would accept the Crowns submission and allow the appeal.  While the
    sentencing judge correctly noted that s. 348(1)(b) is not on the list of
    designated offences in s. 490.011(1)(b), she failed to appreciate that the
    respondent was found guilty and sentenced under s. 348(1)(d), which is on that list.
     Therefore, in my view, a
SOIRA
order was available under s. 490.012(2).

THE RELEVANT STATUTORY PROVISIONS

[6]

The Crown prepared a useful summary of the relevant statutory provisions,
    which I reproduce below.

348.
(1) Every one who

(a) breaks and enters a place with intent to commit
          an indictable offence therein,

(b)
breaks and enters a place and commits an
          indictable offence therein
, or

(c) breaks out of a place after

(i)   committing an
          indictable offence therein, or

(ii) entering the place with intent to commit an
          indictable offence therein,

is guilty

(d)
if the offence is committed in relation to a dwelling-house,
          of an indictable offence and liable to imprisonment for life
, and

(e) if the offence is committed in relation to a
          place other than a dwelling-house, of an indictable offence and liable to
          imprisonment for a term not exceeding ten years or of an offence punishable
          on summary conviction.

490.011
(1) The following definitions apply in this section
          and in sections 490.012 to 490.032.

[]

designated offence means

[]

(b) an offence under any of the following
          provisions:

[]

(x) paragraph 348(1)(d) (breaking and entering a
          dwelling house with intent to commit an indictable offence),

(xi) paragraph 348(1)(d) (breaking and entering a
          dwelling house and committing an indictable offence)
,

(xii) paragraph 348(1)(e)
          (breaking and entering a place other than a dwelling house with intent to
          commit an indictable offence), and

(xiii) paragraph 348(1)(e) (breaking and entering a
          place other than a dwelling house and committing an indictable offence);

490.012
(2) When a court imposes a sentence on a person for
          an offence referred to in
paragraph (b)
or (f) of the definition
          designated offence in subsection 490.011(1), it shall, on application of
          the prosecutor, make an order in Form 52 requiring the person to comply with
          the
Sex Offender Information Registration Act
for the applicable period specified in section
          490.013 if the prosecutor establishes beyond a reasonable doubt that the
          person committed the offence with the intent to commit an offence referred to
          in
paragraph (a)
, (c), (c.1), (d), (d.1) or (e) of that definition.

490.011
(1) The following definitions apply in this section
          and in sections 490.012 to 490.032.

[]

designated offence means

[]

(a)
an offence under any of the following
          provisions
:

[]

(xvi)
section 271 (sexual assault)

490.013
(1) An order made under section 490.012 begins on
          the day on which it is made.

(2) An order made under subsection 490.012(1) or (2)

[]

(c)
applies for life if the maximum term of
          imprisonment for the offence is life
.

490.014
The prosecutor, or a person who is subject to an
          order under subsection 490.012(2), may appeal from a decision of the court
          under that subsection on any ground of appeal that raises a question of law
          or of mixed law and fact. The appeal court may dismiss the appeal, or allow
          it and order a new hearing, quash the order or make an order that may be made
          under that subsection.

ANALYSIS

Summary

[7]

The respondent was charged under s. 348(1)(b) and found guilty and sentenced
    under s. 348(1)(d).  Consequently, pursuant to s. 490.011(1)(b)(xi), he was
    sentenced for a
SOIRA
designated offence.  The other requirements in
    s. 490.012(2) having been met, the court was obliged to make the
SOIRA
order.

Sections 348(1)(b) and (d)

[8]

Sections 348(1)(a), (b) and (c) set out various ways of committing the
    offence of breaking and entering.  Sections 348(1)(d) and (e) stipulate the
    offence classification and maximum available sentence. Anyone who violates s. 348(1)(a),
    (b) or (c) will necessarily be found guilty and sentenced under s. 348(1)(d) or
    (e).

[9]

In the present case, the respondent pleaded guilty to the offence of
    breaking and entering a dwelling-house and committing the indictable offence of
    sexual assault.  That is, he pleaded guilty to committing an offence under s. 348(1)(b).
    Because his offence was committed in relation to a dwelling-house, he was
    necessarily sentenced under s. 348(1)(d).

Sentenced for a designated offence

[10]

Section
    490.011(1) sets out the definitions that apply in s. 490.012.  It defines
    designated offence to mean, among other things:

(b) an offence under any of the following provisions

(xi)     paragraph 348(1)(d) (breaking and
    entering a dwelling house and committing an indictable offence)...

[11]

As
    the respondent was sentenced under s. 348(1)(d), he was sentenced for a
    designated offence within the meaning of s. 490.011(1)(b).

Section 490.012(2)

[12]

Pursuant
    to s. 490.012(2), when the court imposes a sentence on a person for an offence
    referred to in paragraph (b) or (f) of the definition of designated offence
    in s. 490.011(1), the court shall make the
SOIRA
order provided that
    two other conditions are met.  Those two conditions are that: (1) the
    prosecutor made an application for the order, and (2) the prosecutor established
    beyond a reasonable doubt that the person committed the offence with the intent
    to commit an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or
    (e) of the definition.

[13]

Both
    conditions were met in this case.  And, as I have explained, the sentencing
    judge imposed a sentence on the respondent for a designated offence within
    the meaning of s. 490.011(1)(b).  Therefore, the sentencing judge was obliged
    to make the
SOIRA

order.

DISPOSITION

[14]

Accordingly,
    I would allow the appeal and make the
SOIRA
order.

[15]

Through
    inadvertence, no order restricting publication to protect the complainants
    identity was made below.  I would make such an order.

Released: June 22, 2015 (J.L.)

E.E. Gillese J.A.

I
    agree. John Laskin J.A.

I
    agree. K. van Rensburg J.A.