WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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    information that could identify the victim or a witness shall not be published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

(a)    any of the
    following offences;

(i)     an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

(iii)   REPEALED: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

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

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

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

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

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    the victim shall not be published in any document or broadcast or transmitted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

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

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

(b) on application of the victim or the
    prosecutor, make the order.

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

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.M., 2018 ONCA 1019

DATE: 20181211

DOCKET: C63554

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

BETWEEN

Her Majesty the Queen

Respondent

and

M.M.

Appellant

Brian Greenspan and Michelle Biddulph, for the appellant

David Friesen, for the respondent

Heard: December 5, 2018

On appeal from the conviction entered by Justice Anne M.
    Molloy of the Superior Court of Justice on December 16, 2016.

REASONS FOR DECISION

[1]

This is an appeal from conviction for sexual
    assault. The appellant maintains that his trial counsel provided ineffective
    assistance and that this resulted in a miscarriage of justice. We dismissed the
    appeal with reasons to follow. These are those reasons.

[2]

To succeed on an ineffective assistance claim,
    the appellant must establish the material facts upon which he relies, that the assistance
    was ineffective and that the ineffective assistance resulted in a miscarriage
    of justice, either by virtue of an unreliable verdict or an unfair trial. Deference
    is owed to counsels performance at trial and there is a strong presumption
    that counsels conduct fell within the wide range of reasonable professional
    assistance:
R. v. G.D.B.
, 2000 SCC
    22, [2000] 1 S.C.R. 520, at para. 27;
R. v. L.H.E.
, 2018 ONCA 362, at paras. 6-7.

[3]

We are not persuaded that any of the alleged
    failings on the part of trial counsel amounted to ineffective assistance and,
    in any event, are satisfied that there was no miscarriage of justice.

[4]

The appellant argues that his trial counsel
    failed to give him disclosure and failed to prepare him to testify. Trial
    counsel responds that the appellant was given disclosure and that any lack of
    preparation arose from the appellants own conduct. Trial counsel describes the
    appellant as having been very difficult to deal with and somewhat cocky. That
    description of the appellant is consistent with the trial judges observation
    that the appellant displayed a swaggering pompous attitude in court. It is
    also consistent with the appellants attitude during cross-examination on his
    fresh evidence affidavit, where he affirmed that counsel had him attend at
    counsels office to discuss his testimony. The appellant asked rhetorically,
    what is there to discuss? He said that he was intent on testifying in a way
    that was consistent with what he had told the police and others.

[5]

In our view, if there was any lack of
    preparation, it arose from the appellants attitude (as reflected in the
    cross-examination on his affidavit in this court) and not a lack of effort on trial
    counsels part. Moreover, trial counsel cannot be blamed for the fact that the
    appellants version of events, as first told to the police, simply made no
    sense to the trial judge. Counsel cannot be blamed for evidence that is inherently
    difficult to believe in several important respects:
R. v. Dunbar
, 2007 ONCA 840,

at para. 27.

[6]

The appellant also claims that trial counsel was
    incompetent by failing to obtain his medical and phone records. We disagree. As
    for the medical records, the appellant contends that he had a shoulder injury
    that would have made it impossible for him to have committed the offence,
    including ripping the complainants bra at the front and tearing a hole in the
    crotch of her tights. The appellant says that the purpose of the medical
    records would have been to substantiate his claim that his shoulder had been
    injured, making him incapable of tearing the complainants clothes. Notably, we
    see no support in the fresh evidence to sustain the proposition that the shoulder
    injury made it impossible for the appellant to have committed the offence.
    Moreover, the trial judge effectively accepted the fact of the injury and
    simply found as a fact that it would not take much strength or dexterity in the
    injured shoulder to tear the complainants clothing. There is nothing in the
    fresh evidence that belies that finding of fact.

[7]

As for the phone records, the appellant says
    that they would have supported the fact that the complainant called him after
    he had left her apartment. In the cross-examination on his affidavit on appeal,
    the appellant acknowledged that he had a burner phone registered under a false
    name. Leaving aside the fact that it could have been difficult to obtain those
    records, there is nothing in the evidentiary record on appeal to suggest that
    the absence of the records gave rise to a miscarriage of justice. Indeed, the
    fact of communication between the appellant and complainant was clear and had
    been memorialized in text message communications, including the appellants
    response to the complainants suggestion of rape, that she had a good memory
    for an uncomphous [unconscious] bitch.

[8]

The appellant also complains that his trial
    counsel should have confronted the complainant with a DNA report showing male
    DNA on her neck and left breast. The appellant contends that the DNA analysis
    would have undermined the complainants denial that the appellant had
    consensually touched and kissed her in that location of her body.  However, in
    light of the complainants evidence that when she awoke from a state of
    unconsciousness, her breasts were exposed and the appellant was naked beside
    her and penetrating her vagina with his penis, it is difficult to see how the
    DNA report showing male DNA in her breast area could have undermined her
    credibility or assisted his.

[9]

Having regard to the suggestion that trial
    counsel failed to confront the complainant with inconsistent statements, the
    allegedly contradictory statements came from the notes of police officers and paramedics
    who attended the scene. It is not clear that the authors of those notes were
    recording what the complainant had told them firsthand. In any event, the
    alleged inconsistencies were on peripheral matters that could not have shaken
    the complainants evidence.

[10]

Trial counsels conduct fell within the range of
    reasonable professional assistance.

[11]

The appellant acknowledges that this case turned
    on credibility. At the core of the trial judges reasons for rejecting the
    appellants evidence was her finding that his evidence made no sense. She
    concluded her judgment with the following observations:

As I have stated, I do not believe [M.M.], nor
    do I find his explanation for these events to be remotely plausible. I fully
    accept that [M.M.] went to Toronto, to Ms. A.s apartment, expecting to get
    sex. He knew she was drunk and messed up on drugs and that she wanted company.
    He added that together and concluded he would get sex; that was his
    expectation.

However, I also accept Ms. A.s evidence that
    she was vulnerable, intoxicated, and afraid to be alone. She thought [M.M.] was
    coming as a friend to help her. She was not expecting to have sex with him. I
    accept Ms. A.s evidence that she passed out, and that she woke up to find
    [M.M.] naked in her bed, engaging in sexual intercourse with her.

I am satisfied beyond a reasonable doubt,
    based on all of the evidence that [M.M.] ripped Ms. A.s bra and tore a hole in
    her leggings. I do not believe his evidence that he was physically incapable of
    doing so. It does not take enormous strength or dexterity to accomplish such a
    task, and all he had to do with his left arm was hold on, while his right hand
    and arm could do all the tearing.

I do not believe for a second that Ms. A. tore
    her own clothing after the fact, to frame [M.M.]. [M.M.] did that after she was
    unconscious, and he did so for the purpose of carrying out the sexual acts that
    were the only reason he drove to Toronto in the first place. Further, he did so
    without regard to the fact that Ms. A., completely unconscious, was not
    consenting.

I am satisfied beyond a reasonable doubt that
    [M.M.] engaged in sexual acts with Ms. A., including penetrating her vagina
    with his penis, while she was unconscious, and knowing she was not consenting.

[12]

This was a fair trial and there was no
    miscarriage of justice.

[13]

For these reasons the appeal was dismissed.

Alexandra Hoy A.C.J.O.
K. Feldman J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2018 ONCA 1029

DATE: 20181213

DOCKET: C65225

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cameron Dell Martin

Appellant

Robert F. Goddard, for the appellant

Alexandra Terrana, for the respondent

Heard: December 7, 2018

On appeal from the sentence imposed by Justice Kelly A.
    Gorman of the Superior Court of Justice on July 18, 2016.

Pardu J.A.:

[1]

The appellant seeks leave to appeal from a
    global sentence of six years, before credit for presentence custody. He submits
    that the sentencing judge erred in her application of the sentencing principles
    mandated for aboriginal offenders by s. 718.2(e) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
. I agree and would reduce the sentence to a four-year global
    sentence before credit for presentence custody, as suggested by the appellant.

The nature of the offences

[2]

On June 10, 2014, the appellant was driving a
    stolen Silverado in an erratic manner in a mall parking lot. After a short
    pursuit by police at a speed of 60-70 kmph he went through a red light and
    collided with another vehicle (dangerous driving, possession of a stolen
    vehicle). The Silverado was now inoperable. He went to another vehicle, a black
    Jetta, stopped at the intersection. The occupant of that vehicle tried to roll
    up the window. The appellant ordered him to get out of the car, tried to reach
    in to unlock the door and, according to the account of one witness, grabbed the
    driver by the shirt to try to get him out of the drivers seat (attempted
    robbery). The occupant slapped the appellant, applied the parking brake and
    removed the keys from the ignition.

[3]

The appellant went to another vehicle in the
    intersection, a Ford Explorer. He tried to open the drivers side door for
    about 30 seconds (attempted theft).

[4]

After arrest, bolt cutters, pliers, a
    screwdriver, a hammer and a socket set were found in the stolen Silverado. These
    formed the basis for the conviction for possession of an instrument suitable
    for the purpose of breaking into some place.

[5]

The licence plate on the Silverado, a drivers
    licence hanging from the rear view mirror and a GPS device and screwdriver
    found inside the vehicle were all stolen, and led to convictions on four counts
    of possession of stolen property.

[6]

Finally the appellant was convicted of driving
    while disqualified.

The sentencing judges reasons

[7]

The sentencing judge referred to the
    appellants aboriginal background, but ultimately concluded that because of the
    seriousness of the offences and the appellants criminal record, his history of
    intergenerational trauma and abuse would have no impact on the sentence:

In every case
    there are both mitigating and aggravating factors. In this case, the mitigating
    factors are the fact that Mr. Martin is a man of First Nations and the survivor
    of intergenerational suffering. As the Pre-sentence Report records, Mr. Martin
    was the victim of sexual abuse, a witness to extensive domestic violence and
    longstanding substance abuse, personally and within his family. To say his
    upbringing was unfortunate is an understatement.

The aggravating factors, however, are
    numerous. Mr. Martin drove a stolen truck in a dangerous manner through a busy
    commercial intersection of St. Thomas, jeopardizing the safety of the public.
    He violently attempted to extract a citizen from his car in order to commandeer
    it to effect his flight. At the time of the offences, Mr. Martin was the
    subject of five separate driving prohibition orders. Additionally, his criminal
    record comprises 123 convictions, including 71 property offences, 11
    convictions for driving while disqualified and 10 convictions for violent
    offences.

[8]

The sentencing judge cited para. 79 of
R.
    v. Gladue
, [1999] 1 S.C.R. 688: Generally, the more
    violent and serious the offence the more likely it is as a practical reality
    that the terms of imprisonment for aboriginals and non-aboriginals will be
    close to each other or the same, even taking into account their different
    concepts of sentencing. She then referred to
R. v. Ipeelee
,          2012 SCC 13, [2012] 1 S.C.R. 433,

at para. 75, to note that [s]ection
    718.2(e) does not create a race-based discount on sentencing. [It] does not ask
    courts to remedy the overrepresentation of Aboriginal people in prisons by
    artificially reducing incarceration rates.

Gladue
factors

[9]

The appellant is a Mohawk, registered with the
    Six Nations of the Grand River. All four of his grandparents and two of his
    great-grandparents attended residential schools. Without going into detail, the
    appellants family and relationship history is fraught with alcoholism, drug
    abuse, cultural dislocation, familial dysfunction, poverty and physical and
    sexual abuse.

[10]

The author of a 2015
Gladue
report indicated,

There is little question that Cameron Martins
    life path has been shaped and informed not only by the larger historic traumas
    impacting Six Nations, but also by the constellation of intergenerational
    effects linked with Indian residential schools.

The appellant

[11]

The appellant has a grade 12 education and
    several college credits. The sentencing judge noted that he presented as an articulate,
    thoughtful man who was exceptionally competent in the presentation of his
    case, and capable of higher education. He stopped consuming alcohol in 2004,
    and his spouse reports that there are no issues of violence towards her or
    their children. He has had seasonal employment but never full-time employment
    on a continuous basis.

[12]

The appellant has a lengthy record dating back
    to 1991 consisting mostly of property offences, and breach-type offences
    related to probation orders or conditions of bail. The most significant
    previous convictions consist of the following:

1.

Some 11 previous convictions for driving while
    disqualified.

2.

Convictions in 1999 for assault and uttering a
    threat for which he received two sentences of 30 days, consecutive to each other.

3.

A global sentence in 2006 of ten months, in
    addition to five months of pretrial custody, for three counts of assault with a
    weapon and a count of uttering a threat and forcible confinement.

4.

A previous conviction in 2012 for dangerous
    driving and flight while pursued by police.

5.

On June 26, 2015 the appellant was sentenced to
    two years less a day, followed by probation, for assault and two counts of
    assault with a weapon. He had served just over one year on this sentence at the
    time of the sentencing now the subject of this appeal.

Analysis

[13]

The failure to give adequate weight to
Gladue
factors is an error of law:
R. v. Kakekagamick
(2006),

81 O.R. (3d) 664
    (C.A.), at para. 31, leave to appeal refused,
[2007] S.C.C.A. No. 34
. In this case the error had an impact on the sentence imposed and
    appellate intervention is required.

[14]

In my view the
    sentencing judge erred by failing to give tangible weight to the systemic and
    background factors present here which played a substantial part in bringing the
    appellant to court and which attenuate his moral blameworthiness. In
Ipeelee
, the court noted at para. 84 the problems caused by unwarranted emphasis
    to paragraph 79 in
Gladue
:

The second and perhaps most significant issue
    in the post-
Gladue
jurisprudence is the irregular
    and uncertain application of the
Gladue
principles to sentencing decisions for serious or violent offences. As
    Professor Roach has indicated, appellate courts have attended
    disproportionately to just a few paragraphs in these two Supreme Court judgments
     paragraphs that discuss the relevance of
Gladue
in serious cases and compare the sentencing of Aboriginal and
    non-Aboriginal offenders (K. Roach, One Step Forward, Two Steps Back:
Gladue
at Ten and in the Courts of Appeal (2009), 54
Crim.
    L.Q.
470, at p. 472). The passage in
Gladue
that has received this unwarranted emphasis is the observation that
    [g]enerally, the more violent and serious the offence the more likely it is as
    a practical reality that the terms of imprisonment for aboriginals and non-aboriginals
    will be close to each other or the same, even taking into account their
    different concepts of sentencing (para. 79; see also
Wells
, at paras. 42-44). Numerous courts have erroneously interpreted
    this generalization as an indication that the
Gladue
principles do not apply to serious offences (see, e.g.,
R.
    v. Carrière
(2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).

[15]

Further, consideration of
Gladue
principles is not equivalent to a race-based discount, but rather
    recognizes the reduced moral blameworthiness resulting from the effects of
    intergenerational dislocation and trauma, and recognizes that aboriginal
    persons are disproportionately represented in the prison population. As the
    court stated at para. 75 of
Ipeelee
,

Section 718.2(e) does not create a race-based
    discount on sentencing. The provision does not ask courts to remedy the
    overrepresentation of Aboriginal people in prisons by artificially reducing
    incarceration rates. Rather, sentencing judges are required to pay particular
    attention to the circumstances of Aboriginal offenders in order to endeavour to
    achieve a truly fit and proper sentence in any particular case. This has been,
    and continues to be, the fundamental duty of a sentencing judge.
Gladue
is entirely consistent with the requirement that
    sentencing judges engage in an individualized assessment of all of the relevant
    factors and circumstances, including the status and life experiences, of the
    person standing before them.
Gladue
affirms
    this requirement and recognizes that, up to this point, Canadian courts have
    failed to take into account the unique circumstances of Aboriginal offenders
    that bear on the sentencing process. Section 718.2(e) is intended to remedy
    this failure by directing judges to craft sentences in a manner that is
    meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to
    the core requirement of the sentencing process.

[16]

Here the offences were not of such gravity as to
    justify disregard of the systemic and background factors affecting the appellant.
    No one was physically hurt. The brief evasion of police at 60-70 kmph was far
    from the most dangerous driving this court has seen. The attempted theft and
    attempted robbery of two other vehicles in the intersection were brief,
    impulsive acts.

[17]

This case is far from
R. v. Fraser
, 2016 ONCA 745, 33 C.R. (7th) 205, where this court upheld a seven-year
    global sentence for an aboriginal offender who had sadistically tortured his
    domestic partner.  In
Gladue
the court upheld
    a three-year sentence for manslaughter. The sentence imposed here approaches
    the range imposed for manslaughter.

[18]

In any event, as noted at para. 86 of
Ipeelee
,

Trying to carve out an exception from
Gladue
for serious offences would inevitably lead to inconsistency in the
    jurisprudence due to the relative ease with which a sentencing judge could
    deem any number of offences to be serious (
Pelletier,
at p. 479).

[19]

It is common ground that a penitentiary sentence
    is required here, but consideration of the
Gladue
factors can also have a bearing on the effectiveness of the
    proposed sentence. Here there is no reason to believe that a six-year sentence
    would have a greater deterrent effect for the appellant specifically or for
    other offenders than a four-year sentence. Section 718.2(e) emphasizes the
    importance of restraint in resort to imprisonment:

A
    court that imposes a sentence shall also take into consideration the following
    principles:

(e) all available
    sanctions, other than imprisonment, that are reasonable in the circumstances
    and consistent with the harm done to victims or to the community should be
    considered for all offenders, with particular attention to the circumstances of
    Aboriginal offenders.

[20]

The longest prison term previously imposed on
    the appellant was for two years less a day. A jump to six years is too much,
    having regard to the nature of the offences and the
Gladue
factors. Section 718.1 of the
Criminal Code
mandates that a sentence must be proportionate both to the gravity
    of the offence and the degree of blameworthiness of the offender. In other
    words, a sentence must not exceed what is appropriate, given the moral
    blameworthiness of the offender:
Ipeelee
, at para.
    37.

[21]

A
four-year global sentence before credit for presentence custody (279 days) would be adequate to meet the objectives of sentencing. I would accordingly grant leave to appeal sentence, allow the appeal and replace the imposed sentence with a four-year global sentence before credit for presentence custody of 279 days as follows:

•
The sentence imposed on count three (attempted robbery) is substituted to a sentence of three years and two months and 25 days consecutive to any other sentence being served.

[22]	No other adjustment is required to the other sentences imposed concurrently for significantly shorter periods. The ancillary orders made by the sentencing judge continue in force.

G. Pardu J.A.

I agree C.W.
    Hourigan J.A.

I agree Harvison
    Young J.A.

Released: December 13, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McPhee, 2018 ONCA 1016

DATE: 20181212

DOCKET: C61680

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

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan McPhee

Appellant

Michael Lacy, for the appellant

Nancy Dennison, for the respondent

Heard: June 15, 2018

On appeal from the conviction entered by Justice Douglas
    K. Gray of the Superior Court of Justice on May 11, 2015, with reasons reported
    at 2015 ONSC 3001.

Hoy A.C.J.O.:

[1]

On September 12, 2013, the appellant, Jordan McPhee,
    threw a single punch at Kevin Dhillon, his cellmate at the Maplehurst
    Correctional Facility. The punch landed on Dhillons face, beside his left eye,
    and broke his orbital bone. Dhillon required surgery as a result.

[2]

The appellant was convicted of aggravated
    assault, contrary to s. 268 of the
Criminal Code of
    Canada
, R.S.C. 1985, c. C-46
, by maiming Dhillon. He has served the sentence that was imposed.

[3]

The appellant argues that his conviction should
    be vacated and a new trial ordered in accordance with s. 686(5) of the
Criminal
Code
, or, in the alternative, that a conviction for
    the included offence of assault causing bodily harm under s. 267(b) of the
Criminal
Code
should be substituted.

[4]

For the following reasons, I would dismiss the appeal.

I. THE BACKGROUND

[5]

The appellant made home-made alcohol in potato chip bags or garbage bags
    that he kept in his bunk in the cell. The fermenting process attracted fruit
    flies and produced an odour. Dhillon found this disturbing.

[6]

On the day of the incident, around lunchtime, the appellant and Dhillon
    returned to their cell. The appellant and Dhillon recounted different versions
    of what happened after that.

[7]

Dhillon testified that:

·

there were many fruit flies in the cell at that time;

·

he asked the appellant to clean his bunk;

·

Dhillon was sitting on the lower bunk; and

·

without warning, the appellant climbed down the ladder from the
    upper bunk and punched Dhillon in the face.

[8]

The appellant testified that:

·

upon their return to the cell, Dhillon invited him to fight;

·

the appellant came down the ladder from the upper bunk, facing
    inward towards the bunks;

·

he was angry at Dhillon and not afraid of him;

·

Dhillon, who was standing about a foot to a foot and a half away,
    threw the first punch with his right arm and a second with his left;

·

Dhillons punches either did not land or grazed the appellants
    shoulder; and

·

the appellant then came out of a crouch and hit Dhillon, with all
    of his strength, with a right, like a roundhouse punch, where Dhillons left
    eye met his cheekbone, knowing that the bones in that area were very fragile
    and vulnerable.

[9]

It was common ground at trial that the appellant punched Dhillon in the
    face, thereby breaking his orbital bone. The issues at trial were whether the
    defence of self-defence or consent precluded a conviction, and whether what
    occurred constituted maiming as referred to in s. 268 of the
Criminal Code
.

[10]

The
    trial judge concluded that the defence of consent was not available. This
    conclusion is not challenged on this appeal.

[11]

The
    trial judge also concluded that he was satisfied beyond a reasonable doubt that
    none of the three elements of self-defence were present. Thus, the defence of
    self-defence was not available. The appellant challenges this conclusion in
    several respects, which I will discuss further below.

[12]

Finally,
    the trial judge concluded that what had occurred constituted maiming on each
    of what he described as the two possible definitions of that word established
    by the jurisprudence. First, the extent of the damage to Dhillon rendered him
    unable to fight back; and, second, Dhillon lost, to some extent, the ability to
    focus his eyes as a result of his injury.

II. THE ISSUES ON APPEAL

[13]

The appellant argues that:

1.

The trial judge
    erred in his assessment of whether the single punch the appellant threw at
    Dhillon was reasonable in the circumstances (the third element of
    self-defence) pursuant to s. 34(1)(c) of the
Criminal Cod
e
.

2.

The trial judge
    erred in his credibility assessment by:

(a)

approaching his task as a credibility contest;

(b)

failing to consider and weigh the specific and
  inherent frailties in Dhillons evidence, contrary to
R. v. McGown
, 2016
  ONCA 575, 341 C.C.C. (3d) 53; and

(c)

relying on factors that were not capable of
  corroborating the material aspects of Dhillons evidence.

3.

In the alternative, a conviction for the included offence of assault
    causing bodily harm should be substituted. The first definition of maiming
    adopted by the trial judge  whether the bodily harm to Dhillon was to such an
    extent that it rendered him less able to fight back or defend himself  was
    wrong in law. As to the second definition, there was no evidence that Dhillon
    lost the use of some part of his body on a permanent basis.
[14]

The
    second issue  whether the trial judge erred in his credibility assessment in
    any of the ways alleged by the appellant  only arises if I conclude that the
    trial judge erred
in his assessment of whether
    the single punch the appellant threw at Dhillon was reasonable in the
    circumstances. This is so for two reasons.
[15]

First,
    an accused person cannot rely on the defence of self-defence if the Crown
    disproves
any one
of the three elements of self-defence beyond a
    reasonable doubt:
R. v. Cormier
, 2017 NBCA 10, 348 C.C.C. (3d) 97, at
    para. 40.
[1]
The three elements of self-defence are set out in s. 34(1) of the
Criminal
    Code
:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force
    is being used against them or another person or that a threat of force is being
    made against them or another person;
(b) the act that constitutes the offence is
    committed for the purpose of defending or protecting themselves or the other
    person from that use or threat of force; and
(c) the act committed is reasonable in the
    circumstances.
If I conclude that the trial
    judge did not err in his assessment of the third element of self-defence
i.e.

whether the act committed was reasonable in the circumstances  then the
    defence of self-defence fails. It is not necessary to consider the trial
    judges assessment of any other element.
[16]

Second,
    in contrast with his analysis of the other elements of self-defence, the trial
    judge considered the third element (whether the act committed was reasonable in
    the circumstances), and the factors set out under s. 34(2),
assuming the
    facts as related by the appellant in his testimony were accurate
.
    Therefore, any of the errors that may have occurred in the trial judges
    credibility assessment do not affect his analysis of the third element of
    self-defence.
[17]

In
    these reasons, I ultimately conclude that the trial judge did not err in
    determining, beyond a reasonable doubt, that the punch administered by the
    appellant was not reasonable in the circumstances and therefore that the third
    element of self-defence was absent. Accordingly, the defence of self-defence
    fails. Given this conclusion, it will not be necessary to go on to consider
    whether the trial judge erred in his credibility assessment in the course of
    his analysis of the other two elements of self-defence
i.e.

(1)
    that the appellant believed on reasonable grounds that there was a threat of
    force being made against him, and (2) that the punch delivered by the appellant
    was for the purpose of defending or protecting himself from the use or threat
    of force.
[18]

Below,
    I first address the trial judges analysis of the third element of self-defence
     whether the act committed by the appellant was reasonable in the
    circumstances  and then turn to the maiming issue.
III.
The Trial
    Judges Analysis of the Third Element of Self-Defence
[19]

Subsection
    34(2) of the
Criminal Code

sets out a non-exhaustive list of
    factors the court is to consider in the course of determining whether the act committed
    was reasonable in the circumstances pursuant to s. 34(1)(c). It provides as
    follows:
(2) In determining whether the act committed is
    reasonable in the circumstances, the court shall consider the relevant
    circumstances of the person, the other parties and the act, including, but not
    limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was
    imminent and whether there were other means available to respond to the
    potential use of force;
(c) the persons role in the incident;
(d) whether any party to the incident used or
    threatened to use a weapon;
(e) the size, age, gender and physical
    capabilities of the parties to the incident;
(f) the nature, duration and history of any
    relationship between the parties to the incident, including any prior use or
    threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication
    between the parties to the incident;
(g) the nature and proportionality of the persons
    response to the use or threat of force; and
(h) whether the act committed was in response to a
    use or threat of force that the person knew was lawful.
[20]

The
    portion of the trial judges reasons in which he analyses the question of
    whether the act committed by the appellant was reasonable in the circumstances
    is at paras. 170 to 176:
[170] In any event, I am satisfied beyond a reasonable doubt
    that the act committed was not reasonable in the circumstances.  In coming to
    that conclusion, I have considered the factors set out in section 34(2) of the
Code
.
    I have considered those factors assuming the facts as related by Mr. McPhee are
    accurate.
[171] It would not have been reasonable to administer the punch
    delivered by Mr. McPhee having regard to the nature of the threat by Mr.
    Dhillon.  According to Mr. McPhee, Mr. Dhillon had invited conflict, by saying
    do you want to take it to the back? and do you want me to come up there?
    Mr. McPhee responded, he says, by descending from his bunk.  If there was a threat
    at that stage, he could have simply stayed where he was.  Even after he
    descended, according to him, there was an attempted punch, or two punches, by
    Mr. Dhillon that missed the mark.  It was totally unnecessary in the
    circumstances to deliver a blow that disabled Mr. Dhillon.
[172] There were ample other means available to respond to the
    potential use of force.  As noted, Mr. McPhee could have simply stayed in his
    bunk.  He could have called for help.  He could have just ignored Mr. Dhillon.
    Even after he descended from his bunk, once Mr. Dhillon missed the mark, he
    could still have called for help or grabbed Mr. Dhillon without punching him.
[173] As noted earlier, Mr. McPhee is taller and heavier than
    Mr. Dhillon.  He would have an advantage in any physical confrontation.
[174] There had been no prior use or threat of force.  While
    there had been some conflict between them, there had been no suggestion of any
    physical confrontation.
[175] The response by Mr. McPhee, if that is what it was, was
    totally out of proportion to Mr. Dhillons ineffectual punches that did not
    land.  As noted earlier, other options were clearly available.
[176] For these reasons, I am satisfied beyond a reasonable
    doubt that the Crown has shown that the defence of self-defence is not
    available.
[21]

The
    appellant argues that the trial judge erred in his analysis of the third
    element of self-defence in the following ways:
1.

by effectively
    imposing a requirement that the appellant wait until he was successfully
    assaulted first before acting, or that he retreat in circumstances where there
    was no real opportunity to do so;
2.

by losing sight
    of the principle that an accused is not required to weigh to a nicety the force
    used in response to the perceived use or threat of force;
3.

by reasoning
    backward from the injury to a finding of excessive force; and
4.

by giving no
    consideration to factors that supported a claim of reasonableness, including
    the following:

a.

the appellant and Dhillon were alone in a locked cell;

b.

the appellant had been told by Dhillon that the reason
  he had been moved to the appellants cell was for fighting with another inmate;

c.

no guards were visible from the cell and there was a
  delay of several minutes after the appellant called for help before any guards
  arrived;

d.

the appellant took no further action beyond the single
  punch and rebuffed Dhillons alleged attempts to continue fighting (once he was
  able to get up again following the appellants punch); and

e.

the appellant was the one who immediately called for
  help once he saw the injury to Dhillon.

[22]

I
    reject these arguments.
[23]

When
    determining whether the act committed was reasonable in the circumstances, s.
    34(2)(b) of the
Criminal Code
required the trial judge to consider
    whether there were other means available to respond to the potential use of
    force. In my view, this is exactly what the trial judge did at para. 172 of
    his reasons.
[24]

Similarly,
    s. 34(2)(g) of the
Criminal Code
required the trial judge to consider
    the nature and proportionality of the persons response to the use or threat
    of force. In doing so, the trial judge did not impose upon the appellant a
    requirement that he weigh the exact measure of necessary defensive action to
    a nicety or hold him to a standard of perfection, contrary to this courts
    decisions in
R. v. Baxter
(1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p.
    111, and
R. v. Cunha
, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 24. Nor
    did the trial judge reason backwards from the injury Dhillon sustained to a
    finding of excessive force.
[25]

As the trial judge recounted, on the appellants version of events,
    the appellant chose to descend from his bunk and engage with Dhillon and then punched
    Dhillon in the left eye area in response to two ineffectual punches that did
    not land. This was not a situation where, in the heat of the moment, an accused
    fails to weigh to a nicety the force he uses in response to the perceived use
    or threat of force. Here, the appellant, who testified he was not afraid of
    Dhillon, chose to engage with Dhillon and then weighed the force that he
    decided to apply in response to Dhillons ineffectual punches. Specifically,
    the appellant testified that he used all his strength to administer the blow,
    and he directed it to where Dhillons left eye met his cheekbone, knowing that
    the bones in that area were very fragile and vulnerable. The trial judge
    assessed proportionality on this basis. In this context, I read the trial
    judges description of the blow at para. 171 as one that disabled [Dhillon]
    as an attempt to reflect the amount of force used, and, therefore, the nature
    of the blow generally, and not as an indication that the trial judge reasoned
    backwards from the consequences of the blow in assessing proportionality.
[26]

In
    conclusion on this first issue, I am of the view that the trial judge did not
    err in his assessment of whether the punch thrown by the appellant was
    reasonable in the circumstances. Thus, the defence of self-defence fails, and it
    is not necessary to go on to consider whether the trial judge erred in his
    credibility assessment.
[27]

I turn next to the maiming issue.
IV.
The Maiming Issue
[28]

Subsection 268(1) of the
Criminal Code
provides
    that:
Every one commits an aggravated
    assault who wounds, maims, disfigures or endangers the life of the complainant.
[29]

The indictment was drafted solely with reference
    to maiming. The appellant was charged that he did maim [Dhillon] thereby
    committing an aggravated assault, contrary to Section 268 of
the Criminal Code of
    Canada
.
[30]

Maim is not defined in the
Criminal Code
.
[31]

Based on his review of
R
.
v. Schultz
(1962), 133 C.C.C. 174 (Alta. S.C.(A.D.)), leave to appeal refused,
    [1962] S.C.R. x, and the cases that have come after it, the trial judge
    concluded that there were two possible definitions of the word maim. He
    wrote, at para. 155:
One contemplates that a
complainant
has lost the use of some part of the body or bodily function, and
    the other is where the assailant causes bodily harm to the victim to such an
    extent that it renders the victim less able to fight back or to defend himself
    or herself. The latter meaning has clearly been established here. The extent of
    damage to [Dhillon] clearly rendered him unable to fight back. However, it has
    also been established that [Dhillon] has lost, to some extent, the ability to
    focus his eyes as result of his injury. That is sufficient to constitute
    maiming; see
R. v. Stehniy
, [2010 ONCA 269].
[32]

To recap, the trial judge applied two
    definitions of maim to the facts in this case. The first definition of maim
    applied by the trial judge requires bodily harm to the victim to such an
    extent that it renders the victim less able to fight back or to defend himself
    or herself. The second definition applied by the trial judge requires the loss
    of the use of some part of the body or bodily function.
[33]

The appellant argues that
Schultz
is the source of
    the first definition of maim applied by the trial judge
i.e.
bodily harm to the
    victim to such an extent that it renders the victim less able to fight back or
    to defend himself or herself. The appellant submits that
Schultz
was wrongly
    decided, and therefore the first definition of maim applied by the trial
    judge was wrong in law. He argues that if this were the standard for maiming,
    most cases of assault causing bodily harm would be artificially elevated to
    aggravated assault. He submits that the correct standard requires that the
    person lose the use of some part of his or her body, coupled with proof beyond
    a reasonable doubt that the persons loss of the body part or function is, or
    will be, permanent. He argues that the evidence in this case falls well short
    of that standard.
[34]

The respondent submits that the trial judge
    correctly found that there are two possible definitions of the word maim, and
    it was open to him to find that the evidence met both definitions in this case.
    The first definition is satisfied because Dhillon testified that he could not
    do anything physical after the appellant struck him. With respect to the second
    definition, the respondent acknowledges that Dhillon regained his eyesight and
    did not lose the ability to focus his eyes as a result of his injury, and the
    trial judge therefore erred in finding otherwise. However, the respondent
    submits that the second definition applied by the trial judge is satisfied by
    Dhillons testimony that his eye twitches and cannot adjust to sunlight, and
    that, as a consequence of the surgery on his eye, he feels numbness, like some
    sort of pain, on top of his gums, all the time.
[35]

As I will explain, I am satisfied that maiming
    within the meaning of s. 268 of the
Criminal
    Code
is made out in this case.
[36]

Both definitions relied upon by the trial judge
    consider the resultant loss of the use or function of some part of the victims
    body; however, the first definition particularizes the body function that must
    be lost  specifically, the ability to fight back or defend oneself. I agree
    with the appellant that whether or not a victim has been maimed should not turn
    on whether the bodily harm inflicted upon the victim rendered the victim less
    able to fight back or to defend himself or herself.
[37]

Under old English law, a person who had
    been deprived of the use of a body part capable of being used to fight was
    maimed, and was not subject to trial by ordeal. As
one of the texts to which the court in
Schultz
referred at p. 178 of its reasons explains:
The distinction between wound and mayhem was of procedural
    importance. The man who had been maimed, that is, who had been deprived of the
    use of a member which would be serviceable in a fight, was not bound to offer
    or accept battle. In such case one or other of the parties was sent to the
    ordeal, until the Lateran Council of 1215 abolished that mode of trial; in
    later days the appellee had to submit to the verdict of a jury. [Footnotes
    omitted.]
[2]

We are long past the days of trial by
    ordeal. In todays society, there is no sound policy reason to still require
    that the loss of the use or function of some part of the victims body affect
    the victims ability to fight back or defend himself or herself in order to
    constitute maiming. In my view, the second definition applied by the trial
    judge, with its focus on the loss of the use of some body part or some bodily
    function without further qualification on the type of body part or function
    lost, recognizes this. In essence, the second definition is the natural evolution
    or modern adaptation of the first definition.
[38]

Also, unlike the first, fighting-focused
    definition, the second definition works in harmony with s. 268(3) of the
Criminal Code
, which
    provides:
(3) For greater certainty, in this
    section, wounds or maims includes to excise, infibulate or mutilate, in
    whole or in part, the labia majora, labia minora or clitoris of a person,
    except where
(a) a surgical procedure is
    performed, by a person duly qualified by provincial law to practise medicine,
    for the benefit of the physical health of the person or for the purpose of that
    person having normal reproductive functions or normal sexual appearance or
    function; or
(b) the person is at least
    eighteen years of age and there is no resulting bodily harm.
This subsections inclusion of
    maims would not make sense if the meaning of maims was restricted only to
    those injuries affecting the ability to fight back or defend oneself.
[39]

Similarly, the second definition can be easily
    applied to any complainant, including infants. In contrast, the first,
    fighting-focused definition can only be used with those complainants who
    possessed the ability to fight back in the first place.
[40]

Accordingly, I depart from
Schultz
insofar as it
    supports a definition of maiming tied exclusively to the ability to fight
    back or defend oneself.
[41]

That said, I agree with
Schultz
to the extent
    that it recognizes that the loss of the use or function of some part of the
    victims body need not necessarily prove to be permanent in order for maiming
    to be made out. This is because
Schultz
, and the cases that followed it,
[3]
focused on the victims ability to fight back or defend himself or herself in
    the fight in which the injury was sustained, rather than the victims ability
    to do so in future fights. This acknowledgement that permanence is not always required
    also makes sense, given modern medicines increasing ability to correct or
    repair what were once thought to be permanent injuries.
[42]

In this case, it is helpful to consider the
    nature of the injury suffered by Dhillon. The appellants punch to the left
    side of Dhillons face broke Dhillons orbital bone. The nurse at the
    correctional facility who saw Dhillon before he was taken to hospital by
    ambulance described his face as caved in. The doctor who examined Dhillon
    before surgery described the fracture as significantly displaced and
    comminuted. The injury was not transitory. Corrective surgery was required.
    Following surgery to repair the damage, it took about one week before Dhillon
    could eat properly again and about two weeks before he could open his left eye
    and speak normally again. Moreover, even now, Dhillons eye twitches and he
    cannot adjust his eye to the sun. The latter issue affects Dhillon when he is
    driving, because he has to keep his eye down and cannot focus on the road. Even
    when driving at night, when lights are coming right at Dhillon, he has to look
    somewhere else because he cannot visually focus on the light. Dhillon also
    continues to experience pain in his gum area.
[43]

In sum, Dhillon suffered a significant loss of
    the use or function of certain parts of his body  specifically, his left eye
    and mouth. He was maimed and the appellant was properly convicted of aggravated
    assault.
V.
Disposition
[44]

For the reasons above, I would dismiss the appeal.
Released: AH DEC 12 2018
Alexandra Hoy
    A.C.J.O.
I agree. Paul
    Rouleau J.A.
I agree. M.L.
    Benotto J.A.

[1]
I note here that the trial judge erred when he set
    out the elements of self-defence, because it appears that he required the Crown
    to disprove all three elements beyond a reasonable doubt in order to render the
    defence unavailable to the appellant. This error does not affect my analysis of
    the issues on this appeal. The error inured to the appellants benefit at trial
    because it held the Crown to an even higher standard than necessary.
    Nevertheless, the law is clear that the Crown need only disprove beyond a
    reasonable doubt one of the elements of self-defence for this defence to fail.

[2]

See Sir Frederick Pollock and Frederic William
    Maitlands
The History of English Law,
2d ed. (Cambridge, UK: The University Press, 1952)
    vol. 2 at p. 490.

[3]
For example, in
R. v. Litthemane
, 2015 ONCJ 565, at
    para. 74, the preliminary inquiry judge cited
Schultz
to support the
    idea that [m]aim means to injure a person to the extent that they are less
    able to fight. Although the preliminary inquiry judge commented that assault
    causing bodily harm might be the more appropriate charge on the evidence given
    that the complainants injuries involved some degree of bodily harm and not
    much more, he ultimately concluded that there was some evidence that would
    meet the definition of aggravated assault by maiming because, after the
    complainant was hit on the head with a baseball bat during a fight, he was out
    of commission in terms of further involvement. Similarly, in
R. v.
    Armstrong
, 2002 BCSC 1824, at para. 22, the trial judge was
    satisfied that the accused had maimed the first complainant because her
    injuries (a broken arm, two broken ribs and seriously bruised legs and arm)
    resulted in [the complainant] being less able to resist the continued assault
    upon her and less able to defend herself. The trial judge was also satisfied
    that the accused had maimed the second complainant because, although his
    injuries were less severe and did not affect him for as long as those suffered
    by the first complainant, the broken wrist suffered by the second complainant
    rendered [him] less capable of defending himself: at para. 26.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Miles, 2018 ONCA 980

DATE: 20181205

DOCKET: C61947 & C62089

Sharpe, Hourigan and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Nicholas Miles and Errol Anthony Brown

Appellants

Howard Krongold, for the appellant, Jason Nicholas Miles

Jeffrey Couse and Marianne Salih, for the appellant,
    Errol Anthony Brown

Kevin Rawluk, for the respondent

Heard: November 22, 2018

On appeal from the convictions entered by Justice Maria
    T. Linhares de Sousa of the Superior Court of Justice on April 8, 2015, and
    from the sentences imposed on March 18, 2016.

REASONS FOR DECISION

[1]

The appellants were convicted of three counts of
    robbery with a firearm, three counts of forcible confinement, and one count of
    breaking and entering a place and therein committing the indictable offence of
    robbery following a judge alone trial in the Superior Court of Justice. Both
    appeal their convictions and seek leave to appeal sentence.

[2]

The charges arise from a robbery of an Ottawa
    technology store that occurred shortly after the store closed at 9:00 p.m.
    Three store employees were present in the stores office at the time of the
    robbery. Two were tied up with telephone cords. Four robbers were involved, two
    at the front of the store and two at the back. One of the robbers at the front
    of the store carried what appeared to be a firearm. The four robbers fled after
    the alarm was tripped. None of the store employees were able to identify the
    appellants as any of the robbers, nor could the appellants be identified from
    security camera recordings as any of the robbers.

[3]

The crucial evidence linking the appellant Errol
    Anthony Brown to the robbery was the discovery of his Blackberry cell phone at
    the front of the store. Brown admitted that it was his Blackberry but in a
    video-recorded statement to police admitted at trial he told the police that he
    thought that someone had stolen it from him earlier on the same day as the
    robbery.

[4]

A search of the Blackberry revealed that its
    user had exchanged text messages with a person labelled Flyd at the phone
    number 613-302-8150. That number was registered to Steven Miles and there was
    evidence that the appellant Jason Nicholas Miles was known in his family as
    Steven. The Crown alleged that the content of certain text messages between
    Brown and Flyd indicated preparation for the robbery and cell phone tower
    evidence placed the Flyd phone proximate to the technology store in question
    prior to and during the robbery. The police found Miles fingerprints on an iPod
    case touched by one of the robbers and on the exit door through which the
    robbers fled. Miles had previously worked at the store and the manner in which
    the robbery was carried out suggested knowledge of the stores layout and
    operation.

[5]

Neither appellant testified.

Issues: Conviction appeals

[6]

The appellant Brown raises the following grounds
    of appeal from conviction:

1.

The trial judge misapprehended evidence relating
    to the text messages;

2.

The trial judge failed
    to consider reasonable inferences exculpating the appellant; and

3.

The trial judge erred
    by concluding that the employee who was not tied up was forcibly confined.

[7]

The appellant Miles adopts those grounds of
    appeal and raises the following additional ground:

4.

The trial judge erred by relying on inadmissible
    hearsay evidence linking the appellant to a phone.

Analysis

1. Text messages

[8]

There were text messages on Browns phone,
    exchanged during the day of the robbery, with Flyd and with someone labelled
    J. The texts used street slang and the Crown called an expert to explain the
    meaning of the texts. At 11:32 a.m. on the day of the robbery, Brown texted
    Flyd: Yo wake up I got a plan and am ready to work dog. Slightly more than
    an hour later, Browns message to Flyd asked to borrow his lighter.
    Subsequent messages sent to J asked to borrow his ting or thing. J
    responded that he did not want to lend the ting out these days and that all
    the niggas hav been asking the same shit and im not lending them it either.
    The Crown expert testified that lighter and ting or thing were slang
    terms used to refer to a firearm and that on the street, persons who needed a
    firearm to do something would commonly borrow the firearm from its holder and
    then return it to the holder.

[9]

It is common ground that the expert and, as a
    consequence, the trial judge, erroneously proceeded on the basis that the terms
    lighter, ting and thing were all used in the texts between Brown and
    Flyd and did not take into account that some of the texts were between Brown
    and J. Brown also argues that the trial judge placed undue weight on the text
    message evidence given the experts concession in cross-examination that ting
    or thing could also refer to a car.

[10]

Despite the conflation of the J and the Flyd
    texts, we are not persuaded that the trial judge erred in her overall treatment
    of the text message evidence. There was evidence that the terms used could
    refer to firearms and it was a reasonable inference to interpret the texts to
    mean that shortly before the robbery, Brown was searching for a firearm in
    coded language. We are not persuaded that had the trial judge focused on the
    fact that the texts involved J as well as Flyd she would have come to any
    different conclusion.

2. Reasonable inferences
    exculpating Brown

[11]

Brown argues that the trial judge failed to
    consider that his phone could have been stolen and that she thereby reversed
    the onus of proof.

[12]

We do not accept that submission. The trial
    judge did consider Browns explanation and she applied a proper and thorough
W.D.
analysis to the statement he gave the police. The content of some of the text
    messages sent from the phone after the time Brown thought it could have been
    stolen suggested that the messages came from Brown. One of them used his
    nickname Don. It was open to the trial judge to reject Browns explanation
    about the phone being stolen and to conclude that it did not leave her with a
    reasonable doubt. This did not amount to reversing the onus of proof.

3. Forcible confinement

[13]

Brown argues that the trial judge erred by
    finding that the third employee who was not tied up was forcibly confined. He
    submits that any confinement of that employee was trivial and momentary and
    therefore did not meet the legal definition of forcible confinement. He argues
    that finding forcible confinement in this case would amount to finding that
    every robbery involves forcible confinement.

[14]

We disagree. This argument was not advanced at
    trial and the trial judges reasons reveal no legal error. She identified the
    proper legal test and found that the robbers restricted the employee within a
    very small office while they collected the cash. The robbers subsequently
    forced the employee to follow them to the back of the store and the exit door.
    This was not a trivial or momentary restriction of her liberty and it went well
    beyond the elements of robbery. It was therefore sufficient to amount to
    forcible confinement.

4.
Hearsay evidence

[15]

The Flyd phone, 613-302-8150, was never
    recovered. It was a pre-paid phone that can be opened without verification of
    the buyers identity. There was no evidence connecting Miles to the name
    Flyd. As noted, however, the phone was registered in the name of Steven
    Miles and there was evidence that Jason Miles was known to his family as
    Steven.

[16]

The contentious evidence linking the appellant Miles
    to the Flyd phone is the information from a post-it note. A police officer
    testified that he asked Miles cousin, with whom Miles lived, for Miles phone
    number. The officers evidence was that the cousin then went back into the
    house, returned and showed the police officer a post-it note reading Steven =
    cell 613-302-8150. When the cousin testified at trial, he denied giving the
    police that information and stated that he could not recall Miles phone
    number.

[17]

In her reasons, the trial judge listed as one of
    the facts implicating Miles in the robbery that the cousin had identified him
    as having the cell-phone number 613-302-8150.

[18]

The evidence from the police officer that the
    cousin showed him the post-it note was the equivalent of the police officer
    testifying as to what the cousin had told him about Miles phone number. It was
    a second-hand statement that was hearsay when used to establish the truth of
    the fact that the number was that of Miles. It follows that the trial judge
    erred by attaching any weight to this evidence.

[19]

However, we agree with the respondents
    submission that even if this evidence were excluded, we should apply the
    curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
and uphold
    Miles convictions because the evidence against Miles was overwhelming: see
R.
    v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras.
    53, 56-57.

[20]

First, the post-it note was not the only
    evidence linking Miles to the phone. The phone was registered in a name that
    Miles family used to refer to Miles and the phone was used to communicate with
    Brown at the time of and in relation to the robbery in the vicinity of where
    the robbery took place. There was no evidence of any other Steven Miles and
    no such individual lived at the address listed on the subscriber information. In
    our view, there is no realistic possibility that without the impugned evidence,
    the trier of fact would not have found that the phone was that of Miles.

[21]

Second, there was a strong body of other
    evidence linking Miles to the robbery. In addition to the evidence of the
    phone, Miles fingerprints were found at the scene on merchandise the robbers
    dropped as they fled and on the exit door. Miles was a former employee and that
    gave him knowledge of the stores layout, where the cash was kept and the place
    where the more valuable merchandise targeted in the robbery was stored. Several
    months after the robbery the police encountered Miles in a car with Brown and
    Miles gave the police a false identity.

[22]

In our view, there is no realistic possibility
    that the outcome of this trial would have been different had the post-it note
    evidence been excluded. Given the strength of the Crowns case, the appeal
    should be dismissed despite the legal error in admitting it.

Sentence appeals

[23]

Brown argues that the trial judge erred by
    imposing the four year mandatory minimum sentence for robbery with a firearm
    pursuant to s. 344(1)(a.1) of the
Criminal Code
. He submits that the trial judge
erred
    in finding both that he had knowledge that a firearm was used and that a real
    firearm was used as opposed to an imitation firearm.

[24]

In our view, there was ample evidence from which
    the trial judge could conclude that Brown knew that a firearm was used in the
    robbery. His cell phone was used shortly before the robbery in an attempt to
    secure a firearm. There was evidence that all four robbers acted in concert.
    They arrived and left at the same time. The firearm was openly visible during
    the course of the robbery. We see no merit in this ground of appeal.

[25]

Brown further contends in a submission made in
    his factum but not pressed in oral argument that there was insufficient
    evidence to establish that a firearm as opposed to an imitation firearm was
    used in the robbery. He submits that all of the evidence relating to the
    firearm came from the three employees. One of these employees testified that
    she was unfamiliar with firearms, another was traumatized by the robbery and
    had a poor memory of the incident, and the third testified that he did not get
    a good look at the firearm.

[26]

We do not accept this submission. There is no
    question that one of the robbers used a gun, whether real or imitation. The
    description of the gun given by the three employees and the manner in which it
    was used were entirely consistent with it being a real firearm and there was no
    evidence that it was not. In our view it was open to the trial judge to find on
    this record that a firearm was used to commit this robbery.

Disposition

[27]

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

Robert
    J. Sharpe J.A.

C.W.
    Hourigan J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Othman, 2018 ONCA 1073

DATE: 20181224

DOCKET: C63251

Simmons, Juriansz and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hamza Othman

Appellant

Frank Addario and Samara Secter, for the appellant

Christopher Webb and Dena Bonnet, for the respondent

Heard: October 25, 2018

On appeal from the conviction
    entered by Justice Irving W. André of the Superior Court of Justice, sitting with
    a jury, on October 4, 2016.

By the Court:

A.

Facts and issues

[1]

The appellant was
    found guilty of second-degree murder by a jury. The events giving rise to the
    conviction occurred at and near a backyard house party.  The appellant was 19
    years old at the time.

[2]

It may be unclear
    whether the appellant and his friends were invited to the party by a guest.
    What is clear is that they did not know the host and were asked to leave. As
    they were leaving, one of the partygoers (the instigator) sucker-punched one
    of the appellants friends (the initial victim). When another of the
    appellants friends attempted to intervene, the instigator punched him as well.
    The intervening friend pushed the instigator to the ground and the appellant
    and his friends left the backyard. As they were making their way to the street,
    one member of the appellants group damaged a car mirror. A group of the partygoers,
    estimated at between 20 and 70 people, left the house party to confront the
    appellants group on the street. The confrontation resulted in violence. Among
    other things, the instigator struck the initial victim with a 2x2 tree stake.
    Soon after, the appellant produced a pocket knife and stabbed one of the
    partygoers (the victim), causing his death.

[3]

The appellant was
    arrested later the same day, spoke to a lawyer and was then interviewed by the
    police. The interview lasted several hours. During this police interview, the
    appellant admitted that he stabbed the victim. The appellants statement was
    ruled voluntary and was used to cross-examine him at trial.

[4]

The appellant
    appeals his conviction and submits that the trial judge erred:

(i) in finding that his statement to the police was voluntary;

(ii) by refusing to charge the jury on the defence of others;

(iii) by giving an unbalanced review of the evidence in his
    instructions on self-defence; and

(iv) by effectively taking away the defence of provocation from
    the jury.

[5]

For the reasons
    that follow, we allow the appeal.

B.

The appellants Statement to the
    police

(1)

The Trial Judges Reasons Holding the Appellants Police Statement
    Voluntary

[6]

In ruling the
    appellants statement voluntary, the trial judge noted that the appellant
    provided an inculpatory statement hours after repeatedly asserting his right to
    silence. The trial judge concluded the appellant did so as the result of seeing
    a video of his girlfriend disclosing to the police inculpatory admissions he
    allegedly made to her following the stabbing.

[7]

The trial judge held
    that the interviewing police officer had a right to continue questioning the
    appellant, despite the appellants assertions of his right to silence, so long
    as the officer did not offer the appellant a
quid pro quo
and so long as the
    appellants will was not overborne by the officer such that an atmosphere of
    oppression resulted.

[8]

The trial judge found
    there was no evidence that the interviewing officer or any other officer made
    any threats or offered any inducements to the appellant in exchange for a
    statement. The trial judge concluded that the appellants will was not
    overborne and that no

quid
    pro quo
was offered; rather, there was merely [the
    appellants] despair on seeing his girlfriend disclose what [the appellant]
    allegedly said to her concerning the fatal stabbing.

[9]

The trial judge
    also rejected a defence argument that attempts by the interviewing officer to
    undermine the legal advice given to the appellant and suggestions that the
    appellant might not get an opportunity to testify vitiated the voluntariness of
    the statement. In the trial judges view, the appellant made it clear during
    the interview why he decided to give a statement despite his earlier assertions
    of his right to silence. The appellants attitude changed dramatically after he
    saw his girlfriends statement. On seeing the video, he said, I cant believe
    she just did that. He later told the interviewing officer, [t]he minute you
    showed the video, I cracked. Thus, in the trial judges view, there was no
    evidence of threats or inducements and the sole trigger for the appellants
    inculpatory statement was seeing his girlfriends incriminating video statement.

(2)

The Crowns Position on Appeal

[10]

On appeal, the
    Crown submits that, in determining voluntariness, the trial judge applied the
    correct legal principles and properly considered the entire context of the
    interview. The interviewing officers statement, for example, that the
    appellants trial strategy might be that he would not testify, was a fair and
    accurate characterization of what could happen at trial. The Crown asserts that
    the trial judges factual finding that the appellant chose to speak as a result
    of being confronted, entirely properly, with the truth as conveyed to the
    police by his girlfriend, is entitled to deference.

(3)

Standard of Review

[11]

Whether a
    confession is voluntary is a question of mixed fact and law. If the trial judge
    considered all the relevant circumstances, a finding of voluntariness is
    essentially a factual one that should only be interfered with if there is some
    palpable and overriding error which impacted the trial judges assessment of
    the facts:
R. v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at
    paras. 22, 71;
R. v. Spencer
,
2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 16-17;
R. v. Wabason
, 2018 ONCA 187, 361 C.C.C. (3d) 98, at para. 8.

(4)

Discussion

[12]

We accept the
    appellants submission that the trial judge erred by failing to identify improper
    threats, inducements, and a
quid pro quo

offered by the interviewing officer and by failing to
    consider whether, in the face of those threats and inducements, the Crown had satisfied
    its onus of proving beyond a reasonable doubt that the appellants statement
    was voluntary.

[13]

As was the case
    in
R. v. Wabason
,
    in our view, the trial judge confine[d] too narrowly the notion of inducements
    or threats leading to a statement: at para. 15.

[14]

Based on our
    review of the record, the interviewing officers statements to the appellant
    during the interview went well beyond saying the appellant might adopt a trial
    strategy of not testifying and crossed the line into undermining the legal
    advice the appellant had received to remain silent. In particular, at least one
    of the officers statements asserted more generally that the appellant may
    never get an opportunity to tell his side of the story. More significantly, the
    officers statements suggested the appellant would not be believed if he did
    not tell his side of the story to the police and further, that a trial court
    would see him, on video, refusing to comment.

[15]

For example, the
    interviewing officer made the following statements to the appellant prior to
    his inculpatory statement:

19:07

Officer: If your mom says, this is what you should do, your
    lawyer says this is what you should do, I say, this is what you should do.
You
    gotta take what everybody says and decide for yourself, right? Youre a 19 year
    old man, right
?

Officer:
people will judge you on how you are in here
,
    right?

Officer:
So when that goes and gets played in court and you
    dont get a-, say, you dont get an opportunity to ever say your side of the
    story and you get convicted of murder, right, and the jury gets to watch, and
    the judge gets to watch

19:53

[Following an assertion by the appellant that he did not stab
    anyone and had nothing to do with this.]

Officer:
If you didnt do any of that stuff, right?  Then
    you should feel free in telling me what you did last night
, where you were,
    who you were with.

Appellant: Id rather not comment on all that though.

Officer: Well, there you go.
So then no ones gonna believe you,
    right?

19:57  58

Officer: So if you,
if you can tell me how you cut your
    finger and its got nothing to do with the stabbing, why wouldnt you tell me?
You got nothing to lose and everything to gain, right?

Appellant: Ive been advised not to, sir.

Officer: Well, trying, trying to open your eyes to think of
    other possibilities, right, cause
its your decision, right?
Its not my
    decision whether you give your side, its not anybody elses decision, its
    yours, right?
And Im telling you, as a normal person, nobodys gonna believe
    that-, what happened to your finger unless you tell the story. If you decide
    not to, no ones gonna believe it came from anything other than you stabbing
    somebody.

20:00

Officer: So then it comes down to credibility, right? So if you
    sit here and say that it didnt happen at this party, when this guy got
    stabbed, if thats not when it happened and
then it gets proven that it is
    and then you get up and you say, well, now, Im gonna tell my story. Nows the
    time and place to tell my story. How many people are gonna believe you then
    versus who believe you now
when its the time, right?

21:54

[The appellant had been informed that he had admitted the
    stabbing to his girlfriend and that she had given a statement to the police.
    The appellant had denied admitting anything, denied doing anything and asserted
    he would say nothing.]

Officer: Thats the attitude youre showing to the victims
    family, right?
Theyre gonna watch this come court.

Officer:
And a jurys gonna watch this come court.

Officer:
And theyre gonna see you.

[Emphasis added.]

[16]

As noted in
R. v. Van Wyk
,
    [1999] O.J. No. 3515 (S.C.), at paras. 160-68, police assertions to the effect
    that an accuseds credibility is at its highest during a police interview and
    that a trial court will see and take a negative view of a refusal to speak are
    legally incorrect and undermine the accuseds right to silence.

[17]

In our view, the
    interviewing officers comments, as set out above, constituted both a threat
    and an inducement as they suggested negative legal consequences if the
    appellant failed to speak and positive consequences if he spoke.

[18]

Moreover, the combined
    suggestion that, despite legal advice, the 19-year-old appellant should make
    his own decision about whether to speak and that he would not be believed if he
    did not speak during the police interview, improperly undermined the advice the
    appellant received from his lawyer.

[19]

We conclude that
    the trial judge erred in failing to recognize that the interviewing officers
    comments amounted to both threats and inducements.

[20]

Further, once the
    appellant had been told that his girlfriend had given an incriminating
    statement, the interviewing officers prior assertion that the trial court
    would see the appellant refusing to comment became an implicit
quid pro quo
 the appellant would suffer negative legal consequences if he maintained his
    position that he had done nothing wrong and did not want to comment and he would
    be viewed in a better light by the judge and jury if he accepted
    responsibility.

[21]

In these
    circumstances, the trial judge should have considered whether the officers
    threats and inducements standing alone or in combination with other factors, [were]
    strong enough to raise a reasonable doubt about whether the will of the subject
    [was] overborne:
Wabason
,
at para. 19, citing
Oickle
,
    at para. 57. Further, the appellants age and the overall context of the
    interview are relevant considerations to this inquiry:
Wabason
,
    at para. 20, citing
Oickle
,
    at para. 42.

[22]

Here, the
    appellant was a 19-year-old young man at the time of his police interview and
    had little prior experience in dealing with the police. Before providing an
    inculpatory statement at 22:56 on October 18, 2014, he had been in a police
    interview room since 17:16 and the formal interview had begun four hours
    earlier, at 18:54. During the course of the interview, which continued with
    some interruptions while the interviewing officer obtained additional information
    including the fact of the appellants girlfriends statement to the police, the
    appellant said no comment in response to the officers questions on more than
    100 occasions.

[23]

In the context of
    this case, we agree that the appellants statements no comment did not
    require the police to cease questioning. Although the appellant repeatedly said
    no comment, he never asked to terminate the interview or to return to his
    cell. Part way through the interview, in addition to saying no comment, he
    also began to claim he had nothing to do with the incident. Considered in
    context, his assertions that he did not wish to comment were somewhat equivocal,
    as he seemed content to learn what information the police had, which the
    officer disclosed piecemeal as the interview continued.

[24]

However, as we
    have said, in our view, various statements by the interviewing officer amounted
    to improper threats and inducements. Although we acknowledge that the immediate
    trigger for the appellants inculpatory statement may have been the appellants
    despair at seeing his girlfriends incriminating video statement, to render a
    statement involuntary, threats and inducements need not be the sole
    contributing factor:
Oickle
,
    at para 57.

[25]

Here, the threats
    and inducements constituted an improper attempt to undermine the legal advice
    the appellant had received and amounted to an implicit
quid pro quo
.
    In all the circumstances, we are not satisfied that the Crown has satisfied its
    burden to prove beyond a reasonable doubt that the interviewing officers
    threats and inducements did not have a coercive effect on the appellant and did
    not contribute to his will to remain silent being overborne. In our view, the
    Crown failed to prove that the appellants statement was voluntary beyond a
    reasonable doubt, accordingly it should have been excluded from the evidence at
    trial.

C.

Defence of Others

[26]

Defence counsel
    at trial asked the trial judge to include defence of others in his charge to
    the jury. The trial judge refused, explaining:

I really dont think quite
    frankly that I have to put this point. First of all, I think its superfluous,
    because we know that force was applied to [the appellant]. We also know that
    force was applied to, earlier, to [the initial victim]. So, and, and the
    evidence clearly suggests according to [the appellant], his testimony, that he
    stabbed [the victim] for the purpose of defending or protecting himself, not
    [the initial victim] from the use or threat of force.

[27]

We accept the
    appellants submission that the trial judge erred by failing to instruct the
    jury on both aspects of s. 34 of the
Criminal Code
, R.S.C., 1985, c. C-46 (self-defence
    and defence of others). In concluding there was no air of reality to the
    defence of defence of others, the trial judge erred in focusing on what the
    appellant said in cross-examination.

[28]

On our reading of
    the record, there were other aspects of the appellants testimony in-chief and
    his statement to the police, as well as the testimony of others, that provided
    a basis for the defence to be left with the jury. Although aspects of the
    appellants cross-examination may have undermined the basis for that defence,
    it was for the jury to determine what aspects of the evidence they would rely
    on, not the trial judge. The fact that the trial judge referred to the assault
    on the initial victim as part of the context for his instructions on self-defence
    did not obviate the requirement to charge on defence of others.

D.

unbalanced instructions on self-defence

[29]

We also accept
    the appellants submissions that the trial judges instructions to the jury on
    self-defence were unbalanced. Not only did the trial judge telegraph to the
    jury that he did not find the appellants testimony about his injuries credible,
    the trial judge also failed to refer to evidence that supported the appellants
    version of events.

[30]

For example, the
    trial judge invited the jury to examine a photograph of the appellant to
    observe whether they could see the facial bruises the appellant claimed to have
    suffered. The photograph was taken less than 24 hours after the incident. The
    trial judge did not draw the jurys attention to the testimony of the police
    photographer who had agreed that bruises often do not show up immediately after
    an event, and added it was his preference to have individuals return a few days
    later for photographs (which was not done with the appellant).

[31]

Instead, the
    trial judge instructed the jury it is a matter of common sense that if
    repeatedly punched with moderate to great force, [the appellant] would have
    suffered visible facial injury. Read in context, this statement telegraphed
    the trial judges view that the appellants evidence of being punched and
    suffering facial injuries was not credible.

[32]

Although a trial
    judge is entitled to express an opinion concerning his or her view of the
    evidence, by stating his opinion by reference to common sense and also failing
    to refer the jury to evidence pointing the other way, the trial judge may well have
    undermined the jurys ability to evaluate the appellants evidence fairly. Nor
    did the trial judge remind the jury, in reviewing the photographic evidence, to
    keep in mind that the appellant is dark-skinned.

E.

Provocation

[33]

During the pre-charge
    conference the trial judge expressed scepticism about leaving provocation as a
    defence. Nonetheless he accepted the defences request to do so. However, his
    instructions to the jury virtually eliminated an element of the defence. The
    trial judge stated: there is no specific evidence that the [victim] and/or his
    companions engaged in a wrongful act or insult that was sudden. On our review
    of the record, there was evidence capable of supporting a finding of suddenness.
    Further, we read this instruction as the trial judge offering his view that
    suddenness could not be made out. In doing so, he usurped the function of the
    jury.

F.

DISPOSITION

[34]

Based on the
    foregoing reasons, the appeal is allowed and a new trial is ordered.

Released: December 24, 2018

Janet Simmons J.A.

R.G. Juriansz J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Palmer, 2018 ONCA 974

DATE: 20181203

DOCKET: C62111

Rouleau, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Palmer

Appellant

Catriona Verner, for the appellant

Katie Doherty, for the respondent

Heard and released orally: November 27, 2018

On appeal from the conviction entered on January 11, 2016
    and the sentence imposed on January 18, 2016 by Justice Julie A. Thorburn of
    the Superior Court of Justice, without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice, sitting
    without a jury, the appellant was convicted of two counts of each of three
    offences: robbery; aggravated assault; and discharge firearm with intent to
    wound.

[2]

The offences arise out of a robbery of a Toronto bank during which a
    bank employee and a customer, who confronted the robbers inside the bank and
    pursued them as they fled, were shot and wounded.

[3]

The appellant, who has served his sentence, appeals his convictions on
    the ground that his initial arrest on unrelated charges was constitutionally
    flawed, and that evidence linking him to the bank robbery should have been
    excluded because it was the product of constitutional infringement.

[4]

The relevant facts may be briefly stated.

The Factual Background

The Bank Robbery

[5]

On April 21, 2013, two men entered a Toronto bank to commit a robbery.
    One man, Lenroy Jackson, was armed with a gun. He held customers and staff at
    gunpoint. The second man, said to be the appellant, vaulted the counter. He
    looked for money in the tellers drawers. The manager directed this man to the
    decoy bags of Canadian currency. The robber then took them and vaulted back
    over the counter.

[6]

A customer confronted the man with the decoy bags. The confrontation
    occurred, it would appear, on the customers side of the counter. Jackson
    jumped off the counter and fired a shot at the customer. The bullet missed the
    customer and struck a bank employee seated on the floor behind the counter.

[7]

The robbers fled the bank pursued by the customer who had confronted the
    unarmed robber inside. Jackson shot the customer. Both robbers fled in a stolen
    vehicle found later the same day. Forensic identification officers located the
    appellants fingerprint on the exterior of the rear drivers side window.

The Tip

[8]

The following day, a police officer from Peel Regional Police received a
    tip from an informant that Sean would be leaving a specific Brampton address.
    Sean had crack to sell. The crack was concealed in Seans rectum. He would
    likely leave the residence on foot.

[9]

The officer who received the tip knew only one drug dealer who used the
    name Sean. He also knew the address from which Sean was to leave as a crack
    house. Sean was the appellant.

The Arrest and Searches

[10]

Police
    proceeded to the area of the address provided by the informant. About ten minutes
    later, Sean walked out. He headed down the street on foot. The officers
    arrested him and patted him down. They found a two and one-half inch folding
    knife. He was charged with carrying a concealed weapon and taken to the police
    station. There, officers seized a cellphone from his backpack and money,
    including three bills with dye on them from the bait money taken during the
    robbery. The appellant was also strip-searched. Police found no drugs.

The Toronto Police Service Contact

[11]

Before
    releasing the appellant on a promise to appear on the weapons charge, the
    arresting officer checked CPIC. He learned that the appellant was a person of
    interest to Toronto Police Service. Contact with the Toronto Police Service
    confirmed this interest. Toronto officers subsequently attended and arrested
    the appellant on charges relating to the bank robbery as he was being released
    on the Peel charges. Prior to his release on the Peel charge, the appellant was
    asked to provide his address and a telephone number, apparently to complete the
    release form. He did so. Although a Promise to Appear in Form 10 requires an
    address, it does not require a telephone number.

The Grounds of Appeal

[12]

In
    this court, the appellant contends that the trial judge erred in deciding that
    the initial arrest of the appellant was lawful in the sense that the arresting
    officer had reasonable grounds to believe that the appellant had committed or
    was about to commit an indictable offence. In the event that this ground of
    appeal succeeds, the appellant then says that certain evidence, including but
    not only, the bait money taken from the bank and found in the appellants
    possession on arrest, should have been excluded, rather than admitted at his
    trial.

The Arrest Issue

[13]

The
    appellant acknowledges, as did counsel at trial, that the arresting officer had
    the necessary subjective grounds to arrest the appellant. Thus, what remains
    for us to determine is whether the evidence adduced at trial disclosed
    objectively reasonable grounds for the appellants arrest.

[14]

The
    trial judge was satisfied that the arresting officer had the essential
    objective grounds to arrest the appellant. She expressed and applied the proper
    legal standard. She did not misapprehend any evidence material to her conclusion.
    We agree with her decision.

[15]

We
    approach this decision mindful that the trial judge need only have been
    satisfied that the grounds for arrest were objectively reasonable in the
    circumstances known to the officer at that time. The benchmark is a reasonable
    person standing in the shoes of the officer at the time of arrest with the
    officers knowledge, the officers experience and the officers training. It is
    that person who must be able to conclude that the grounds existed. And this
    conclusion must take into account all the circumstances known to the officer, a
    determination that eschews piecemeal analysis and microscopic scrutiny of
    individual items shorn of their context.

[16]

In
    our assessment, we are mindful of the fact that little is known about the
    informants background or reliability. That said, the information provided was
    current and specific about place; about type; about storage of drug; and about
    method of transportation. In addition, this appellant was known as a drug
    dealer. The only one who used the name Sean. And the place described from
    which he was leaving was a known crack house. While the officer could not
    supply information about the antecedents and reliability of the confidential
    informer, it is commonplace that the
Debot
factors are not mandatory
    conditions precedent to permit reliance on confidential informer information in
    support of search or arrest authority. Further, deficiencies in one factor may
    be compensated by strengths in others.

[17]

In
    the end, we are satisfied, as was the trial judge, that the appellants arrest
    was not constitutionally infirm. It was based on reasonable grounds, thus not
    arbitrary. In light of our conclusion on this issue of constitutional
    infringement, we do not reach the admissibility question framed by s. 24(2) of
    the
Charter
.

[18]

The
    appeal from conviction is dismissed. The appellant, having served his sentence,
    did not pursue that appeal. Leave to appeal sentence is refused.

Paul Rouleau J.A.

David Watt J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Petroniuk, 2018 ONCA 1083

DATE: 20181224

DOCKET: C59882

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

The Ontario Review Board

Respondent

The Person in Charge of
    the Centre for Addiction and Mental Health

Respondent

and

Elizabeth Petroniuk

Applicant/Appellant

Graham Jenner, for the appellant

Catherine Weiler, for the respondent, Her Majesty the Queen

Gavin S. MacKenzie, for the respondent, The Person in Charge of
    the Centre for Addiction and Mental Health

Heard: December 21, 2018

On appeal from the order of Justice Gary Trotter of the
    Superior Court of Justice dated December 1, 2014, with reasons reported at 2014
    ONSC 6951.

REASONS FOR DECISION

[1]

In 2007, Elizabeth Petroniuk was found not criminally responsible on a
    charge of assault. Since that time, she has been subject to the jurisdiction of
    the Ontario Review Board (the ORB).

[2]

In 2014, Ms. Petroniuk applied for a declaration that s. 672.56 of the
Criminal
    Code
violated her rights under s. 7 of the
Canadian Charter of Rights
    and Freedoms
on the basis that the section did not afford an NCR accused
    the ability to compel the ORB to hold a hearing to review a decision of the
    person-in-charge of a hospital to significantly increase the restrictions on
    the liberty of an NCR accused.

[3]

The application judge dismissed Ms. Petroniuks application, finding
    that s. 672.56 did not violate s. 7 of the
Charter
: 2014 ONSC 6951, at
    para. 33. Ms. Petroniuk appeals.

[4]

We dismiss the appeal substantially for the reasons given by the
    application judge in paras. 13-25 and 27-31 of his decision.

[5]

Although we do not share the application judges view that a
mandamus
application would provide a person in Ms. Petroniuks situation with a
    practical avenue to review any increase in the restrictions on her liberty, we
    do note that that both CAMH and the ORB considered and responded promptly to
    the information provided by Ms. Petroniuks counsel complaining about her loss
    of privileges in 2013.

[6]

As the Crown noted in para. 42 of its factum, Part XX.1 provides a
    number of liberty safeguards or procedural avenues to an NCR accused to be
    heard with respect to non-significant restrictions of liberties:

(i)      The
    ability of the hospital to ask for a hearing to review a disposition under s.
    672.81(2), even if the significant increase threshold in s. 672.56(2) has not
    been reached;

(ii)      The
    ability of the ORB to hold a hearing to review a disposition at any time, on
    its own motion or at the request of a party, under s. 672.82(1);

(iii)     The
    ability of an NCR accused to bring a hospital decision to the ORBs attention
    in writing and seek redress, as the appellant did in this case; and

(iv)     The
    ability to have the ORB review any restrictions at the next annual review
    hearing under s. 672.81(1).

[7]

Finally, the application judge did not have the benefit of this courts
    decision in
Campbell (Re)
, 2018 ONCA 140, which clarified how to
    determine when a person-in-charge of a hospital significantly increases the
    restrictions on the liberty of an NCR accused. That decision reinforces the
    application judges conclusion, at para. 20, that Part XX.1 of the
Criminal
    Code
does not contemplate the ORB micromanaging the day-to-day operations
    of hospitals. The decision in
Campbell (Re)
also counsels that when
    the hospital is in doubt as to whether a significant increase in restrictions
    on liberty has remained in place for more than seven days, it should give
    responsible notice to the ORB: at para. 69.

[8]

The appeal is dismissed.

J.C.
    MacPherson J.A.
G. Pardu J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pottinger, 2018 ONCA 1028

DATE: 20181212

DOCKET: C65619

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randy Pottinger

Appellant

No one appearing for the appellant

Grace Choi, for the respondent

Heard: December 10, 2018

REASONS FOR DECISION

[1]

The appellant did not attend today. He has confirmed his mailing address
    to which the appeal material was mailed. His phone number is now out of
    service, nor is he in custody.

[2]

In the circumstances, the sentence appeal is dismissed as
    abandoned.