CITATION:
R. v.
Scotney
, 2011 ONCA 251

DATE: 20110401

DOCKET: C46687

COURT OF APPEAL FOR ONTARIO

Feldman, Lang and LaForme JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Troy Scotney

Appellant

Brian Snell, for the appellant

Alison Wheeler, for the respondent

Heard: September 23, 2010

On appeal from conviction entered by Justice Ian S. McMillan
          of the Superior Court of Justice, sitting with a jury, dated September 23,
          2005.

Feldman J.A.:

[1]

The appellant and the deceased were strangers who
    taunted each other into a fight that turned out to be fatal for the deceased.
    The appellant was charged with second degree murder after he stabbed the
    deceased with a knife during the fight. His only defence was self-defence. The
    trial judge charged the jury only on s. 34(2) of the
Criminal Code
. The jury rejected self-defence but convicted the
    appellant of manslaughter, having concluded either that he did not have the
    intent for murder, or because they accepted that the accused was provoked,
    thereby reducing murder to manslaughter.

[2]

On this appeal, the appellant says that the trial judge
    erred by failing to charge the jury that they could also find self-defence
    based on ss. 34(1) and 37 of the
Code
.
    I would dismiss the appeal. Although the appellant was entitled to have the
    jury consider every definition of self-defence that could be applicable, I
    agree with the trial judge that there was no air of reality to the application
    of s. 34(1), taking the facts at their highest. No one addressed s. 37 at
    trial. However, I agree with the respondent on appeal that there was also no
    air of reality to an application of s. 37. Nor did either section fill a gap
    left by s. 34(2) on this record.

Facts

[3]

The appellant testified in this case, as did several
    witnesses to the events. For the purposes of considering the availability of
    the various configurations of self-defence, we must take the best case for the
    appellant, which was his own description of the event. Where other witnesses
    differed, I have included some of their observations.

[4]

Intending to start a new life in Sault Ste. Marie, the
    appellant rented a room in a house and spent the next day, October 1, 2004,
    fishing. He returned at night carrying his gear, went to a pub then walked
    home. As he neared his new home, he encountered the deceased, McWatch (also
    known as Witzell), walking with his girlfriend. There were in fact two girls
    walking home with McWatch. The deceased was quite drunk (his blood alcohol
    ratio was later tested at 197 milligrams in 100 millilitres of blood), and was
    calling out to people as he walked along. When the appellant stepped off the
    sidewalk to let McWatchs group pass, McWatch called him a
fuckn
nigger. (The appellant is not a black man.) The appellant recalled that he
    raised his hands and said I dont know what it is but I dont want anything to
    do with it. And McWatch responded: So thats how its going to be, eh?  Well, okay, well see about that.

[5]

According to the girls who were with McWatch, the
    appellant put his hand on McWatchs arm, the two men argued, the girls told
    McWatch to come on and he said: okay, I am not in the mood anyway. According
    to the appellant, McWatch put down the case of beer he was carrying and
    attacked the appellant from behind by smashing him on the back. The appellant
    said I dont want to fight you. I dont want anything to do with you, but
    McWatch struck him again on the back, then walked away toward the building
    where the appellant had just rented a room.

[6]

The appellant described McWatch as a much bigger man
    than himself. In fact he was taller but lighter than the appellant. He was also
    a lot younger: McWatch was 22 while the appellant was 38 years old. The girls
    described McWatch as a muscular guy who looked strong and like he was probably
    into sports.

[7]

The appellant then became concerned about his
    situation. His landlord had told him that there was a group of people who had
    partied the night before. He felt that McWatch could be part of a group that he
    should fear. He felt confused about his whole new situation and concerned for
    his safety in his new home and whether he would be able to stay there. He
    walked to a nearby parking lot where he retrieved his fishing knife from his
    duffle bag and put it inside the lining of his nylon jacket. He did not want to
    go home without a means of protection and testified that: It looked like there
    was going to be some trouble.

[8]

The appellant did not know exactly where McWatch had
    gone, but he thought he might be in the residence next door to his. On
    returning to his house, the appellant started yelling up, saying: I dont know
    where you are, you son of a bitch. Where you are and how many of you there are,
    ok, but you better, you know, just show yourselves. McWatch then came to a
    second story window and made some sarcastic comments. The appellant yelled
    obscenities and warned McWatch not to come near him again. He also called him a
    goof or a fool. That brought McWatch downstairs.

[9]

The appellant walked to the enclosed porch at the front
    of his residence. Marlene Patterson, who also lived in the house, was standing
    at the door. The appellant testified that he told her he had been attacked. As
    the deceased approached the house, he told her to get inside. He felt that
    this was going to be for real and that things were escalating out of
    proportion, fast.

[10]

McWatch came onto the porch and punched the appellant,
    cutting the inside of his mouth and cracking the bridge of his nose. He pulled
    the appellant off the porch. The appellant was bleeding profusely and
    half-stunned. When McWatch let go of him for a moment, the appellant pulled off
    his jacket as he feared that McWatch would otherwise immobilize him by pulling
    his jacket up over his head. The appellant fell and while he was on the ground,
    he removed the fishing knife from his jacket and hid it under his shirt.

[11]

After the appellant stood up, McWatch attacked him
    again, striking the appellant in his stomach and chest. The appellant fell,
    then crawled over to a truck where he raised himself up against the truck then
    brandished the knife at McWatch who was standing three feet away. He told
    McWatch to get the fuck off me and get off my property now.

[12]

In response, McWatch tried to get the knife. He threw
    his body weight into the appellant against the truck, held the appellants left
    arm, which held the knife, then struck the appellant twice more, once in the
    jaw and once in the chest. In response, the appellant stabbed McWatch in the
    chest by thrusting the knife in as hard as he could. He explained that by then
    he could barely physically support himself. He testified that:

I dont  I wasnt even thinking on a level anymore
    of, of what Im going to do or how Im going to do it. This is happening within
    seconds. I didnt  there
was no thoughts
. This was a
    fight.

[13]

McWatch then staggered back and collapsed, whereupon
    the appellant screamed out no, threw the knife away and approached the
    deceased to try to help him. He yelled toward the house for someone to call
    911,
then
called 911 himself on his cell phone,
    telling the operator that he had been attacked and that he defended himself,
    and he tried to administer CPR. He said he was in shock.

[14]

Upon later examination, the appellant had no broken
    bones, but the doctor felt he had suffered a facial smash and there were
    abrasions on his knee. The deceaseds blood was found on the appellants track
    pants, on the tailgate of the truck, and on the screen door of the porch, while
    the appellants blood was found on the porch.

[15]

The cause of death was hemorrhage due to a single
    penetrating stab wound that severed the aorta five centimetres above the heart.
    The pathologist identified an abrasion at the lower edge of the wound
    apparently caused by the hilt of the knife. There were also some areas of
    abrasion and a laceration on the right thumb.

The Trial

[16]

The appellant was charged with second degree murder.
    His defence was self-defence. At trial, the Crown submitted that none of the self-defence
    sections in the
Code
could apply and
    that self-defence was not available to the appellant. Defence counsel
    originally asked the trial judge to charge the jury on ss. 34(1) and 34(2) of
    the
Code
. The trial judge suggested,
    referring to this courts decision in
R.
    v.
Pintar
(1996), 30 O.R. (3d) 483 (C.A.), that
    only s. 34(2) should be left with the jury. Defence counsel agreed with the
    trial judges analysis, but asked for time to think about the issue. He did not
    renew his request. He also asked that the jury be charged on provocation,
    which, if accepted, would reduce the appellants culpability to manslaughter
    from murder. The trial judge accepted that submission. During its
    deliberations, the jury asked the court to clarify the definition of self-defence
    and what is not self-defence, following which, the trial judge repeated his
    charge on the law of self-defence. Ultimately, the jury convicted the appellant
    of manslaughter.

Issues

[17]

The appellant says that the trial judge made three
    errors of law that require this court to order a new trial:

(1)       The
    trial judge erred by failing to leave the jury with two further routes to self-defence,
    s. 34(1) and s. 37 of the
Code
;

(2)       The
    trial judge erred by failing to give a
Baxter
instruction as part of his charge on s. 34(2), that tells the jury that
    they should not weigh to a nicety the actions of the appellant in the heat of
    the moment;

(3)       The
    trial judge failed to sufficiently clarify the elements of self-defence in
    response to the question from the jury.

Relevant Code Provisions

34. (1)
Every
one who is
    unlawfully assaulted without having provoked the assault is justified in repelling
    force by force if the force he uses is not intended to cause death or grievous
    bodily harm and is no more than is necessary to enable him to defend himself.

(2)  Every
    one who is unlawfully assaulted and who causes death or grievous bodily harm in
    repelling the assault is justified if

(a)
he
causes
    it under reasonable apprehension of death or grievous bodily harm from the
    violence with which the assault was originally made or with which the assailant
    pursues his purposes; and

(b)
he
believes, on
    reasonable grounds, that he cannot otherwise preserve himself from death or
    grievous bodily harm.

37. (1) Every one is justified in using force to defend
    himself or any one under his protection from assault, if he uses no more force
    than is necessary to prevent the assault or the repetition of it.

(2)
    Nothing in this section shall be deemed to justify the wilful infliction of any
    hurt or mischief that is excessive, having regard to the nature of the assault
    that the force used was intended to prevent.

Analysis

Issue 1  Failure to leave ss. 34(1) and 37

[18]

In
Pintar
,
    this court set out a functional structure for trial courts to use to determine
    which of the self-defence provisions should be left with the jury in any
    particular case in order to avoid the confusion that consistently arose when
    all the sections were left, while at the same time giving the accused the
    maximum benefit of the available provisions. In articulating this approach,
    Moldaver J.A. carefully explained the latter point at p. 496:

Let me be
    clear about the underlying purpose of the functional approach in the context of
    self-defence.  The functional approach is not designed to remove
    legitimate cases of self-defence from the jury's consideration; nor is it meant
    to impinge upon the principle that an accused is entitled, as a matter of law,
    to have all defences put to the jury that are realistically available on the
    evidence.  Rather, its purpose is to relieve against some of the confusion
    and complexity that has plagued self-defence instruction by enabling trial
    judges to be somewhat more selective and proactive in the formulation of their
    instruction.  It is designed to encourage trial judges to pinpoint the
    real basis upon which the claim to self-defence rests and communicate that
    defence to the jury in as clear and comprehensible a fashion as possible.

[19]

I set out again the four part test from
Pintar
:

(
1
)       Consider the
    evidence carefully with a view to determining the essence of the claim to
    self-defence and the
Code
provision(s) realistically available to that
    claim.

(
2
)       To the extent that
    the evidence fails the air of reality test in respect of one or more of the
    constituent elements of a particular provision, that provision should not be
    left with the jury.

(
3
)       To the extent that
    the evidence clearly establishes one or more of the constituent elements of a
    particular provision, Crown counsel should be encouraged to admit the
    underlying facts and thereby avoid unnecessary legal instruction.

(
4
)       Where a particular
    provision affords the accused a wider scope of justification than a companion
    provision, the narrower provision should only be put to the jury if the
    evidence lends an air of reality to the factual underpinnings of that
    provision,
and
the provision somehow fills a gap unaccounted for in the
    justification afforded by the wider provision.

[20]

Moldaver J.A. explained that the purpose of the fourth
    part of the exercise is directed in particular to the relationship between ss.
    34(1), the narrower self-defence provision, and 34(2), the wider one. He
    observed that often in murder cases, although there may theoretically be a way
    that s. 34(1) could apply, when the evidence is examined practically and
    logically, it is difficult to imagine a scenario where the jury would reject
    self-defence under s. 34(2), but accept it under s. 34(1).

[21]

That was how the trial judge in this case analyzed the
    evidence in the pre-charge discussion with counsel, and came to the conclusion
    that only s. 34(2), the wider provision, and not s. 34(1), should be left with
    the jury. On appeal defence counsel renews the submission, ultimately abandoned
    by defence counsel at trial, that under s. 34(2), the jury may have
    rejected the requirement that the appellant was under a reasonable apprehension
    of death or grievous bodily harm from the deceased. In those circumstances he
    submits, s. 34(1) could fill the gap.

[22]

The problem with this approach is the one identified by
    the trial judge: there is no air of reality to the application of s. 34(1) to
    the evidence in this case. Under s. 34(1), the accused cannot have provoked the
    victims assault, he cannot have intended to cause death or grievous bodily
    harm, and the force cannot have been more than was necessary to enable him to
    defend himself.

[23]

Addressing only the third requirement, since the
    appellant deliberately stabbed the deceased forcefully in the chest with a
    knife, if he did not reasonably apprehend that he was in danger of death or
    grievous bodily harm from the deceased, it would not be logical to say that the
    force he used was not more than was necessary to defend
himself
.

[24]

There are also serious problems with the first and
    second requirements. Taking the case at its highest for the appellant, the
    deceased had returned to his room when the appellant yelled up at him, taunting
    him, swearing at him and eventually calling him a name. Counsel submits that
    there was no invitation to fight. However, it was the appellant who instigated
    a reaction from the deceased which the jury could well have viewed as provoking
    the assault by the deceased.

[25]

Finally, under s. 34(1), the appellant cannot have
    intended to cause death or grievous bodily harm. I first want to address the
    case law that states that where there is an issue whether the accused intended
    to cause death or grievous bodily harm, the trial judge should instruct the
    jury on both ss. 34(1) and (2). (See
R.
    v. Baxter
(1975), 27 C.C.C. (2d) 96 (C.A.) at p. 111.)

[26]

In my view, this direction was intended to apply, as it
    states, where there is an issue, raised by the evidence, regarding the intent
    of the accused. Both in
Baxter
, as
    well as other case law that has followed it on this point, such as
R. v. Mulligan
(2006), 80 O.R. (3d) 537 (C.A.),
    where the appellant said his rifle discharged accidentally, and
R. v. Kong
, [2006] 2 S.C.R. 347, where the
    appellant acknowledged that he waved a knife possibly touching the victim but
    did not stab him, the evidence of the force used by the accused was capable of
    being construed as an unintended response. For example, in
Baxter,
although the accused fired many shots from his shotgun, on
    his version of events, he was shooting over the victims car to scare them off
    and did not intend to shoot anyone.

[27]

In this case, although the appellant testified that when
    he brandished the knife it was not his intention to stab McWatch in the first
    place but just to tell him to get off of him, after McWatch hit him twice more
    he stabbed McWatch as hard as he could in the chest. On that evidence, no issue
    could be raised regarding the intent to cause grievous bodily harm. The
    analysis is similar to this courts assessment in
R. v. Tallen
(1995), 24 O.R. (3d) 77 (C.A.) at p. 81 where the
    court explained:

At no time did the appellant testify that he did
    not intend to stab Copeland. Further, the appellant used his weapon, knowing
    that the metal part of it was approximately ten inches in length. The evidence
    of the pathologist Dr. Sengupta was that the weapon would have had to go into
    Copelands body eight or ten centimetres, which would mean approximately
    two-thirds of the blade would have gone into the body. Dr. Sengupta testified
    that the force used would have to have been considerable for the blade to pass
    through the lower front chest wall, the diaphragm, the liver, and into the
    aorta. While the above-noted evidence might fall short of establishing that the
    appellant did not intend to cause death, it is incapable of raising an
    evidentiary foundation that he did not mean to cause grievous bodily harm. The
    jurys finding that the appellant was guilty of manslaughter supports the contention
    that the jury found that the appellant intended to stab Copeland. Accordingly,
    a proper instruction could have been limited to s. 34(2) of the
Code

[28]

The fact that appellants trial counsel, who took the
    opportunity to consider the issue overnight, did not renew his request to leave
    s. 34(1), is a strong indicator that to do so would have caused confusion and
    not benefitted the appellant. Of course the trial judge had come to the same
    conclusion. In my view, he made no error in doing so.

[29]

At trial, no one raised in pre-charge discussions the
    potential applicability of s. 37. On appeal, counsel submits that because s. 37
    can apply even when the accused intended death or grievous bodily harm and did
    not reasonably apprehend death or grievous bodily harm to
himself
,
    that section could fill a gap if the jury rejected self-defence under ss. 34(1)
    and (2).  Again, there is no air of
    reality to the suggestion that the appellants act of deliberately and
    forcefully stabbing the deceased could be viewed as proportional if he did not
    reasonably perceive himself to be in danger of death or grievous bodily harm.

[30]

In reply submissions, counsel suggested that the jury
    could also have rejected s. 34(2) self-defence on the basis that there was no
    unlawful assault by McWatch, in which case s. 37 could fill the gap. Examining
    the Crowns closing, it is true that the Crown tried to minimize the deceaseds
    role in the fight, but it was in the context of how threatened the appellant
    really felt for his safety. There was no serious issue that the deceased had
    come down from his room to fight the appellant. Although the lawfulness of the
    assault by the deceased was left as the first element under s. 34(2) for the
    jury to decide, it was not an issue open to serious doubt on the record.

[31]

In my view, counsel and the trial judge made no error
    by not referring to s. 37.

Issue 2  Failure to give a
Baxter
instruction

[32]

In
Baxter
,
    Martin J.A. made the following statement:

[I]n deciding whether the force used by the accused
    was more than was necessary in self defence under both s.  34(1) and 34(2), the jury must bear in mind
    that a person defending himself against an attack, reasonably apprehended,
    cannot be expected to weigh to a nicety, the exact measure of necessary
    defensive action. [Citations omitted.]

[33]

This court recently confirmed in
R. v. Onigbinde
(2010), 251 C.C.C. (3d) 15 (C.A.) that it is an
    error of law not to give a
Baxter
instruction where either s. 34(1) or 34(2) is relied on.

[34]

The trial judge in this trial, which was held in 2005,
    four years before this courts decision in
Onigbinde
,
    followed Watts Manual of Criminal Jury Instructions and did not include a
Baxter
instruction as part of the charge
    on s. 34(2). The instruction was not requested, nor was any objection taken. Although
    it is an error of law not to give the instruction, the seriousness and
    significance of the error must be assessed in each case to determine whether
    the error would have had any effect on the jurys consideration of the issues.
    In
Onigbinde
and in
R. v. Hebert
, [1996] 2 S.C.R. 272, there
    were other serious errors requiring the courts to order a new trial. Neither
    court stated that the
Baxter
error
    alone would have required that result. Nor was a new trial ordered in
Baxter
itself.

[35]

In my view in this case, the absence of a specific
Baxter
instruction was mitigated by other
    aspects of the charge. One was the trial judges review of the evidence the
    jury could consider as part of their

assessment
    of whether the appellant acted in self-defence as defined. Although the trial
    judge properly balanced the appellants version of events with the observations
    of other witnesses regarding who had the upper hand in the fight, the trial
    judges description of the appellants testimony would have made it clear to
    the jury that they could accept his reactions as being legitimate ones for the
    purposes of the defence. For example, as part of the evidence going to whether
    the appellant reasonably believed Mr. McWatch was going to inflict death or
    grievous bodily harm on him, which evidence the trial judge told the jury was
    also relevant to whether the appellant reasonably believed he could not
    otherwise save himself, the trial judge charged the jury as follows:

Troy Scotney testified that he brandished the knife
    to ward off Trevor Witzell, and that Troy Scotney was in fear for his life. He
    was in fear because of what he had suffered in other cities. Trevor Witzell was
    fighting him for the knife. The situation he described as a nightmare. It was
    dark, raining heavily, and to the knowledge of the accused, there were no other
    persons in the vicinity. The two were grappling for the knife, and in
    examination-in-chief, the accused testified that he was struck again by Trevor
    Witzell. Troy Scotneys repeated efforts to warn off Trevor Witzell were
    unsuccessful.

[36]

Also, the legal instructions explaining how the jury
    should approach the issue of whether the appellant reasonably believed he could
    not otherwise save himself,  although
    they did not specifically include the
Baxter
wording, would have indicated to the jury that the subjective component was a
    state of mind of the appellant and that the reasonableness aspect superimposed
    only the attributes of an ordinary person, not an extraordinarily calm person
    who had the fullness of time to gauge an appropriately proportional reaction.

[37]

I quote those instructions in full:

The third question: Did Troy Scotney reasonably
    believe that he could not otherwise save himself from being killed or seriously
    injured by Trevor Witzell?

This question also requires you to consider not
    only Troy Scotneys state of mind when he used force against Trevor Witzell,
    but also what a reasonable person would believe in the same circumstances.

Did Troy Scotney believe that he could not save
    himself from being killed or seriously injured by Trevor Witzell other than by
    killing or seriously injuring Trevor Witzell? Would a reasonable person have
    the same belief in the same circumstances?

Belief is a state of mind, Troy Scotneys state of
    mind. To determine whether Troy Scotney believed that he could not save himself
    from being killed or seriously injured by Trevor Witzell, other than by killing
    or seriously injuring Trevor Witzell, you should consider all the evidence. You
    should consider what Troy Scotney and Trevor Witzell did or did not do; how
    they did or did not do it; and what they said or did not say.

You should look at their words and conduct before,
    at the time and after Troy Scotney used force against Trevor Witzell. All these
things,
and the circumstances in which they happened
    may shed light on Troy Scotneys state of mind at the time. They may help you
    decide whether Troy Scotney believed that he could save himself from death or
    serious injury only by killing or seriously injuring Trevor Witzell. Use your good
    common sense.

Troy Scotneys belief must also be reasonable in
    the circumstances as Troy Scotney knew or honestly believed them to be. Would a
    reasonable person in those circumstances have a similar belief in the need to
    kill or seriously injure Trevor Witzell to preserve himself from a similar
    fate?

A reasonable person is sane and sober, not
    exceptionally excitable, aggressive, or fearful, a person who has the same
    powers of self-control that we expect our fellow citizens to exercise in
    society today.

The danger that Troy Scotney was in, or honestly
    and reasonably believed
himself
to be in does not have
    to be immediate. The immediacy, or otherwise of it, however, is a factor for
    you to consider in assessing the honesty and reasonableness of Troy Scotneys
    belief.

The issue involved in this question is not whether
    the only actual way for Troy Scotney to save himself from death or serious
    injury from Trevor Witzell was to kill or cause serious injury to Trevor
    Witzell. The issue is whether Troy Scotney honestly and reasonably believed
    that to do so was the only way to save
himself
from a
    similar fate.

[38]

To summarize on this ground of appeal: although it was
    an error not to give the
Baxter
instruction,
    in light of the circumstances that no request or objection was made by counsel
    at the time, and that the other contents of the charge sufficiently indicated
    to the jury that self-defence was available on this record, depending how they
    viewed the evidence, I would not give effect to this ground of appeal. In my opinion,
    no substantial wrong or miscarriage of justice was occasioned by the error in
    this case.

Issue 3
    Whether the trial judge adequately answered the jurys question on self-defence

[39]

During their deliberations, the jury asked the
    following question:  Please define
    unlawful death for us again. Could we have it in writing as mentioned in
    question number two? After discussing the meaning of the question with
    counsel, the court called in the jury and asked for clarification. After
    retiring, the jury returned and the foreperson explained:  What the jury would like to clarify is the
    definition of self-defence and what
is not self-defence
    according to the law
. The court asked further questions including
    whether the jury needed the evidence repeated. The foreperson responded, no,
    that they knew the evidence. With the acquiescence of counsel, the trial judge
    then recharged on self-defence giving the full legal instruction but without
    the review of relevant evidence.

[40]

The appellant submits that this answer did not provide
    the required assistance to the jury contemplated by Cory J. in
R. v. S
.(
W.D.)
,
    [1994] 3 S.C.R. 521, at pp. 528 and 530. In particular, he raises again that
    the recharge should have included reference to ss. 34(1) and 37 and a
Baxter
instruction.

[41]

I would not give effect to this ground of appeal. The
    trial judge specifically addressed the concern raised by the jury by repeating
    the portions of the charge that dealt with the definition of self-defence.
    Counsel agreed with this approach. Having decided to
leave  s
. 34(2) as the only configuration of self-defence
    that had an air of reality, there was no basis for the court to charge on
    another section in answer to the question from the jury. What I have already
    discussed regarding the
Baxter
issue
    also applies in the context of answering the jurys question.

Conclusion

[42]

I would dismiss the appeal.

RELEASED:

APR -1 2011                                             K. Feldman J.A.

KF                                                               I
    agree S. E. Lang J.A.

I
    agree H.S. LaForme J.A.


CITATION: R. v. Sirois, 2011 ONCA 370

DATE: 20110510

DOCKET: C50527

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Eric Sirois

Appellant

Monte MacGregor, for the appellant

Greg Skerkowski, for the respondent

Heard: May 6, 2011

On appeal from the sentence imposed
          on April 14, 2008 by Justice Patrick J. Flynn of the Superior Court of
          Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to a four-count indictment charging him
    with two counts of second degree murder and two counts of aggravated assault.
    The trial judge sentenced him to life imprisonment with no possibility of
    parole for 21 years.

[2]

The appellant appeals the parole ineligibility component of the
    sentence.  He submits that a period in the range proposed by the Crown, 1618
    years, is the appropriate period.

[3]

Despite Mr. MacGregors very able argument, we cannot agree with the
    appellant.  In particular, we do not agree that the trial judge unreasonably
    over-emphasized the brutality of the crimes, or described them in overly
    emotional language.  Reading the reasons as a whole it is evident that the
    trial judge did not consider the Crowns position on parole to reflect a fit
    period of ineligibility.

[4]

The considerations listed by Mr. Skerkowski at para. 37 of his factum, with
    which we agree, justified a 21-year period of parole ineligibility.

[5]

The appeal is dismissed.


WARNING

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

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

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

(a)
any
of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION:
R. v. T.G., 2011
          ONCA 317

DATE: 20110421

DOCKET: C48474

COURT OF APPEAL FOR ONTARIO

Rosenberg, Juriansz and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. G.

Appellant

Mary Jane Kingston, for the appellant

Christine Tier, for the respondent

Heard: April 7, 2011

On appeal from the judgment of Justice William J. Babe of the Superior
          Court of Justice dated October 30, 1997.

ENDORSEMENT

[1]

The index offence committed by the appellant occurred
    in 1995 while he was on his way to his probation appointment.  It involved a 9-year-old girl who was riding
    her bike to her friends house.  The
    appellant pushed her to the ground, repeatedly told her not to scream, pulled
    off her shorts and underwear and began fondling her genital area.  She screamed and managed to kick him in the
    groin and break free.

[2]

On October 30, 1997, the appellant was found to
    be a dangerous offender.  However,
    amendments to the
Criminal Code
allowing for long-term offender
    designation came into force during the appellants sentencing hearing.  The hearing judge, as well as counsel,
    understood that the amendments did not apply and that the appellant was to be
    sentenced under the old provisions.  They
    were in error and this is conceded by the Crown.

[3]

In
    essence, the hearing judge was required, as
R. v. Johnson,
(2003),
    [2003] 2 S.C.R. 357  subsequently made clear, to consider whether the
    less restrictive long-term offender designation would suffice before making a
    dangerous offender designation.   Nevertheless, in spite of this error and the
    able submissions of Ms. Kingston, we find this to be one of the rare circumstances,
    also described in
Johnson
, where the appeal should be dismissed.

[4]

On this record there is no reasonable
    possibility that the dangerous offender designation would have been different
    had the error of law not been made.  This
    result follows for three reasons.

[5]

First, the history of the appellant and his
    experiences with professionals, both medical and custodial, indicate clearly
    that he is not a candidate for control in the community.  Over the years he has failed to complete or
    refused to participate in some of the programming offered to him and was at
    times aggressive and violent.

[6]

The appellant has been certified under the
Mental
    Health Act
and diagnosed with heterosexual paedophila, sexual sadism,
    substance abuse disorder (alcoholism) and antisocial personality disorder.  During testing, he self-reported to having
    sexual contact, including oral sex and intercourse with girls aged 12 and under
    between 21 and 50 times.

[7]

A medical professional rated the appellant as a
    100% risk to reoffend within seven years, and that he had an arousal preference
    for coercion, or non-consensual sexual scenarios with girls.  The conclusion was that the appellant
    presents a high risk to young females.  Regarding control in the community on the drug, Lupron, the medical
    opinion was: That he would require a great deal of persuasion indeed to co-operate
    with such treatment and even then I dont think compliance over the long run
    can be assured.

[8]

Second, the hearing judge, in a fashion, considered
    whether the appellant could be controlled in the community.  He noted in his reasons that he had the
    discretion to impose an indeterminate sentence.  Thus, in this context he turned his mind to
    whether the appellant could be controlled in the community.

[9]

Third,
    and significantly, there is no fresh evidence
to support a claim that
    the appellant might be a suitable candidate for a long-term offender
    designation.  Indeed, the only
fresh evidence filed was in
    proceedings in 2008, which indicated that in the 11 years since the dangerous
    offender designation, there had been no change.

[10]

For
    these reasons the appeal is dismissed.

M.
    Rosenberg J.A.

R.G. Juriansz J.A.

H.S.
    LaForme J.A.


CITATION:
R. v.
Tabbara
, 2011 ONCA 272

DATE: 20110407

DOCKET: C51167

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Mohammad Jihad
Tabbara

Appellant

James
Foord
and Nigel
Marshman
, for the appellant

Karen
Shai
, for the respondent

Heard and endorsed: March 31, 2011

On appeal from conviction entered by Justice Jennifer
Blishen
of the Superior Court of Justice dated April 28,
          2009.

APPEAL BOOK ENDORSEMENT

[1]

The sentence appeal is dismissed as abandoned.

[2]

With respect to conviction, the trial judge was
    entitled to draw the inferences she drew based on the videotape and the record
    before her. To the extent there may be some argument over the
inferences
she drew in relation to the third interaction,
    in our view, her overall conclusion that the appellants blow  met the legal test for causation, i.e. that
    it at very least, significantly contributed to the rupture, is amply supported
    by the record.

[3]

Accordingly, the appeal is dismissed.


CITATION:
R. v.
Valovic
, 2011 ONCA 320

DATE: 20110421

DOCKET: C50618

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ivan Valovic and Ivans Electric Limited

Appellants

Murray Shore and Daniel Moore, for the appellants

Robert Goldstein, for the respondent

Heard:
March 7, 2011

On appeal from the judgment of Justice John R. Belleghem of
          the Superior Court of Justice dated May 22, 2009, dismissing the appeal from
          the summary conviction entered by Justice J. Elliott Allen of the Ontario
          Court of Justice on October 19, 2006, with reasons reported at
[2006] O.J. No. 5564
.

By the Court:

[1]

Ivan Valovic, his wife Dagmar and their co-owned
    company Ivans Electric Limited were convicted summarily of multiple counts of
    GST and income tax evasion and filing false tax returns contrary to s. 239(1)
    of the
Income Tax Act
, R.S.C. 1985,
    c. 1 (5th Supp.), and s. 327(1) of the
Excise
    Tax Act
, R.S.C. 1985, c. E-15.

[2]

The summary conviction was upheld on appeal to the
    Superior Court of Justice although the sentence was varied to vacate the
    custodial portion of the sentence.

[3]

Mr. Valovic and Ivans Electric Limited now seek leave to
    appeal the summary conviction appeal decision. They argue that the summary
    conviction appeal judge misinterpreted the trial judges reasons, reached
    unreasonable conclusions and, as a result, failed to exercise his appellate
    jurisdiction properly. Dagmar Valovic does not appeal.

[4]

The threshold question for the court is whether leave
    to appeal ought to be granted. As set out in
R. v. R
.(
R.)
(2008), 234 C.C.C. (3d) 463 (Ont.
    C.A.), at para. 37, leave to appeal should be granted sparingly, taking into
    account the significance of the legal issues
raised
to
    the general administration of criminal justice and the merits of the proposed
    grounds of appeal.

[5]

For the reasons that follow, we do not grant leave to
    appeal. The issues raised in the proposed appeal have little significance to
    the administration of justice beyond this case and the merits of the proposed
    appeal are not strong. We also agree with the summary conviction appeal judge
    that the case against the appellants was overwhelming. Although the trial
    judges reasons contain two unfortunate comments, they do not, as the
    appellants suggest, raise significant issues of trial fairness.

ANALYSIS

1.
No broader significance to the administration
    of justice

[6]

The
appellants
claim that the
    proposed appeal would be the first time a provincial appellate court in Canada
    has specifically dealt with the issue of what sort of evidence, in addition to
    a discrepancy demonstrated by a net worth analysis, is required to prove the
actus reus
of tax evasion. A net worth
    analysis calculates the taxpayers net worth at the beginning and at the end of
    the period under review.  Where the taxpayers
    declared income and other sources of money cannot account for the increase in
    the taxpayers net worth, a discrepancy is demonstrated and may lead to the
    inference that the taxpayer earned income that was not reported to the tax
    authorities.

[7]

We do not give effect to this submission. That issue
    was recently addressed in
R. v. Hunter
,
    2008 ONCA 103, where this court held at paras. 4-5 that in the appropriate
    case, a discrepancy alone is sufficient to prove the
actus
reus
. In the present case, this is
    precisely what the trial judge concluded. The conclusion was open to him based
    on the extent of the discrepancy, the appellants failure to keep proper books
    and records, the absence of any evidence explaining the discrepancy, and the
    evidence as to the accuracy of the net worth calculations relied on by the
    Crown.

2.
There
    is no significant merit

[8]

Although the appellants listed several grounds of
    appeal in their factum, in oral submissions it became apparent that the appeal centred
    on two statements made by the trial judge in his reasons. The appellants
    contend that these two statements indicate that the trial judge improperly stereotyped
    electricians as likely to evade taxes and, by relying on documents suggesting
    Mr. Valovic was involved in an unrelated fraud scheme, engaged in prohibited
    propensity reasoning.

[9]

Both of these problematic statements were raised as
    grounds of appeal in the summary conviction appeal court and were rejected by
    the summary conviction appeal judge. We will address each of the two statements
    in turn.

a)

Did the trial judge improperly stereotype electricians
    as likely to evade taxes?

[10]

The first of the impugned statements is the following:

The likely source of funds in this case is the
    electrician business which as a trade is notoriously likely to involve cash
    transactions more or less depending on the inclination of the tradesman. When
    the books of Ivans Electric reveal the failure to keep proper records, the
    potential source of undisclosed funds is obvious.

[11]

The appellants submit that the trial judges use of the
    word notoriously to describe the propensity of a particular group of
    tradespeople to engage in cash transactions casts those transactions and those
    tradespeople in a pejorative light, suggesting that there is something unseemly
    or illicit in the practice. This, in the appellants submission, shows that the
    trial judge demonstrated bias by stereotyping a group to which Mr. Valovic
    belongs as having a propensity to commit the crime of tax evasion.

[12]

We disagree. That issue was fully canvassed and
    rejected by the summary conviction appeal judge. In our view, this passage in
    the reasons does not indicate that the trial judge was stereotyping or improperly
    taking judicial notice of the nature of the electrician trade as being a cash
    business or expressing a bias against electricians. The record shows that Mr.
    Valovic described himself as a sole practitioner electrician who repairs
    televisions, microwaves, videocassette recorders and other small appliances,
    and who does most of the work himself. Given the small and inexpensive items
    Mr. Valovic repaired, it was open to the trial judge to infer that the
    unexplained increase in net worth of Mr. Valovic was likely as a result of his making
    unrecorded cash transactions.

[13]

Read in the context of the reasons as a whole, the
    statement does not suggest that the trial judge was biased against
    electricians. Although the comment should have been restricted to the nature of
    Mr.
Valovics
business and his circumstances rather
    than referring to electricians generally, it is apparent that the trial judge was
    addressing the issue of the likely source of Mr. Valovics undeclared income.

b)  Did the trial judge make
    improper use of the Nigerian scheme documents?

[14]

The appellants argue that the trial judges reference
    in his reasons to correspondence between Mr. Valovic and a Nigerian contact
    raises concerns as to whether the trial judge engaged in inappropriate
    propensity reasoning and whether the appellants had a fair trial. To understand
    the appellants concern, we need to provide context.

[15]

In the course of the trial, a number of documents were
    entered into evidence suggesting that Mr. Valovic was considering getting
    involved in what appeared to be a $21 million fraudulent scheme with someone in
    Nigeria. The scheme does not appear to have been carried out and, in any event,
    it was unrelated to the charges before the court. The documents indicated that
    Mr. Valovic opened a bank account in Slovakia at or around the time of that
    correspondence and that the account was related to the scheme he was discussing
    with the Nigerian contact. The documents also contain a statement by Mr.
    Valovic indicating his awareness of there being tax implications if the Canada Revenue
    Agency became aware of the proposed fictitious invoices.

[16]

The Crown submitted that the Nigerian documents served
    to show that the appellants knew that they had to pay taxes on income. The
    documents were also tendered to counter the defences suggestion that the
    Slovakian bank account had been opened and used by Mr. Valovic to receive a
    gift from his father. Receiving a gift through an overseas account could have served
    to explain the discrepancy in Mr. Valovics net worth analysis.

[17]

The portion of the reasons containing the impugned
    statement appears towards the end of the trial judges analysis of the
mens rea
component of the offence. It
    comes after the trial judge found that Mr. Valovic had deducted personal
    expenses from his business income and after he rejected the suggestion that
    this was due to sloppy bookkeeping. The statement is as follows:

One particularly informative piece of evidence was
    the correspondence around the Nigerian scheme. It appeared Mr. Valovic was
    prepared to submit a huge fraudulent invoice to his Nigerian contact and that
    he was alert to the tax implications. That is compelling evidence of his
    dishonesty and guile. On the basis of the evidence presented I am of the view
    that there is no real possibility that the discrepancy in net worth came about
    as a result of sloppy bookkeeping or some other mistake.

[18]

The appellants argue that the statement shows that the
    trial judge engaged in inappropriate propensity reasoning. The appellants
    further argue that the trial judge had stated in the course of final submissions
    that he would make no use of the Nigerian documents, and thus his use of the
    documents for any purpose, even to show that Mr. Valovic knew he had to pay
    taxes, rendered the trial unfair.

[19]

We disagree.

[20]

During final submissions, the defence argued that the
    apparent fraudulent scheme disclosed in the Nigerian documents was highly
    prejudicial as it reflected disreputable conduct. The trial judge made it abundantly
    clear that he agreed with the concern and that he would not use the documents to
    infer disreputable conduct or propensity. As to the two bases for which the
    documents were originally tendered in evidence, the trial judge advised the
    Crown that there was no need to use the documents to demonstrate that Mr.
    Valovic knew that he had to pay taxes, since that was not a live issue by the
    time the trial was completed. The trial judge appears to have accepted the use
    of the documents to counter any suggestion that the Slovakian account was a
    source of gifted funds from his father. This, however, was a very minor point.

i)

The
    propensity reasoning concern

[21]

The propensity reasoning concern was fully canvassed on
    the summary conviction appeal. That court found that the trial judge did not
    use the documents for prohibited propensity reasoning. This conclusion is fully
    supported by the lengthy exchange between counsel and the trial judge wherein
    the trial judge demonstrated a clear understanding of the prohibition on using
    the documents either as similar fact evidence or to show a dishonest propensity
    and unequivocally stated that he would not use the documents for such improper
    purposes. The summary conviction appeal judges conclusion that the reference
    to the Nigerian documents was nothing more than a general throw away
comment
and that the trial judge did not make any finding of
    dishonest propensity to bolster his finding that the appellants had the
    necessary
mens rea
 is supported by a
    reading of the transcript and reasons as a whole.

[22]

Although we consider the trial judges comment that the
    Nigerian Scheme is compelling evidence of [Mr. Valovics] dishonesty and
    guile to be truly unfortunate and gratuitous, it does not, in our view, amount
    to a reviewable error, nor does it alone or together with the comment regarding
    the electricians demonstrate a reasonable apprehension of bias.

ii)

The trial fairness concern

[23]

Although it appears from the reasons that the trial
    judge used the Nigerian Scheme documents to indicate that Mr. Valovic was alert
    to the tax implications of earning revenue, something the trial judge said was
    not necessary, the reference is, in our view, harmless. As explained by the trial
    judge, using the documents for that purpose was unnecessary because Mr.
    Valovics knowledge of the tax implications of earning revenue was not a live
    issue by the end of the trial. The appellants trial counsel did not suggest
    otherwise. It is apparent, therefore, that the appellants suffered no prejudice
    from the trial judges reference to the Nigerian documents in this context.

CONCLUSION

[24]

All of the grounds of appeal raised in this court were raised
    and rejected in the summary conviction appeal court. In addition to rejecting
    these grounds of appeal, the summary conviction appeal judge carefully reviewed
    the evidence and concluded:

[T]he evidence in this case was overwhelming
    against the appellants. In particular, the net worth evidence was structured in
    such a way as to give the appellants the benefit of the doubt on virtually
    every item in dispute other than those such as the purported shareholders meeting
    in Barbados. Common sense would tell anyone that this was nothing but a sham.

[25]

The summary conviction appeal judge also rejected the
    suggestion that this was a case of inadvertent sloppy bookkeeping. Mr. Valovic
    had previously been audited by the Canada Revenue Agency and had undertaken to
    keep proper records, which he had not done.

[26]

In our view, the grounds of appeal from the summary
    conviction appeal court are not strong. As there is no legal issue raised that
    has significance to the general administration of criminal justice, the
    appellants have not met the test set out in
R.
    v. R
.(
R.)
. Leave to appeal is denied.

Janet Simmons J.A.

Paul Rouleau J.A.

Karakatsanis J.A.

RELEASED: April 21, 2011


CITATION:
R. v. Walsh, 2011
          ONCA 325

DATE: 20110426

DOCKET: C52662

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jamie Dwayne Walsh

Respondent

Nadia Thomas, for the appellant

Gerald G. White, for the respondent

Heard:
April 19, 2011

On appeal from the sentence imposed
          on August 20, 2010 by Justice Jean-Marie
Bordeleau
of the Ontario Court of Justice.

By the Court:

[1]

This is a Crown appeal from sentence.  Following his trial, Walsh was found guilty of
    robbery, assault causing bodily harm committed as part of the robbery and
    breach of undertaking.  The offences
    occurred during a home invasion in search of the drug
Oxycontin
,
    a drug that Walsh, a self described addict and drug dealer, understood had been
    stolen from a pharmacy by the victim.

[2]

The Crown sought a sentence of eight years imprisonment.  The defence sought a sentence of three and a
    half years imprisonment.  Walsh had
    previously served four penitentiary sentences.  Two of those sentences were for four years each.

[3]

After giving Walsh 2 years credit (1.6 to 1 credit)
[1]
for time spent in Harvest House, a treatment facility, the trial judge
    sentenced him to18 months imprisonment plus three years probation.

[4]

The trial judge gave no reasons for awarding credit for
    time spent in Harvest House.  Overall,
    the very experienced trial judge was impressed with the great strides in
    rehabilitation Walsh made.

[5]

At his sentencing hearing, Mr. Main, the pastor and
    recent executive director of Harvest House, testified concerning the
    exceptional efforts Walsh had made both in reforming himself and in
    contributing to the community.  After
    acknowledging his drug problem and desire to reform, Walsh stood up in meetings
    and told people he was on the staff side and if they brought drugs in he would
    go to the staff and report them.  He
    worked exceptionally hard.  He spent
    extra hours doing volunteer fundraising on the telephone and in the community;
    he contributed time as a volunteer to the junior hockey triple
A
program.  He also
    went on television and radio to discuss the problem of drugs on the street.  The aim of these appearances was to speak
    about the addictive properties of
Oxycontin
, the fact
    that it creates an almost immediate addiction, that you do not get a chance to
    back out, and that the end result is always the same, jail or death.  He wanted to scare people who had a propensity
    to abuse
Oxycontin
or cocaine and its derivatives
    away from the drug.  After finishing the
    program at Harvest House, he continued to do volunteer work there pending
    sentencing.

[6]

We note that no victim impact statement was filed at
    the sentencing hearing.

[7]

Walsh served six months of his sentence and was
    released on parole February 24, 2011.  A
    condition of his parole is that he is required to live at Harvest House for the
    duration of his parole.  He has now been
    on parole for seven weeks without incident.  In addition to residing at Harvest House, Walsh is taking further
    counselling for Anger Solutions through the John Howard Society.

[8]

The Crown appeals and alleges three errors in law.  Firstly, the sentencing judge erred in
    awarding two years credit for the time spent in the Harvest House treatment
    centre with no reasons.  Secondly, the
    trial judge failed to consider denunciation or general deterrence, and focused
    almost exclusively on rehabilitation.  Thirdly,
    the sentence was demonstrably
unfit,
having regard to
    the fact this was a home invasion robbery, an aggravating factor of the
    robbery, and Walshs lengthy criminal record.

[9]

We do not accept that the trial judge was correct in
    giving the credit he did for pre-trial custody.

[10]

Based on
R. v.
Downes
(2006), 79 O.R. (3d) 321, it may be appropriate
    in some circumstances to give credit for the impact of pre-sentence release
    conditions.  However, this court has
    repeatedly made clear that such credit is not automatic and that bail
    conditions are not equivalent to pre-trial custody.  Specifically, this court held in
R. v. Rice
, [2004] O.J. No. 5197 (C.A.),
    that residence in a rehabilitative facility prior to sentencing should not
    automatically be equated with incarceration for the purposes of calculating
    credit for pre-trial custody.  Further,
    in
R. v.
Fobister
,
    2010 ONCA 7, this court rejected a trial judges decision to grant 1 to 1
    credit for time spent in a treatment centre, noting that the jurisprudence
    does not support credit at this level.  Having regard to this error in principle we must therefore assess the
    overall fitness of the sentence.

[11]

We agree with the Crown that the sentence imposed is
    outside the normal range of five years and up for a home invasion robbery.  (See
R.
    v. Wang
, [2001] O.J. No. 1491 (C.A.);
R.
    v. Wright
(2006), 83 O.R. (3d) 427 (C.A.). At para. 24 of
Wright
, Blair J.A. explained that while
    rehabilitation should be considered, the objectives of protection of the
    public, general deterrence and denunciation should be given priority ... a
    stiff penitentiary sentence is generally called for.)  In this case, giving priority to the
    principles of general deterrence and denunciation, an appropriate sentence
    would have been a period of incarceration of 8 years.

[12]

Nothing we say here is intended to alter or detract in
    any way from the above-noted principles as stated by this court.
     Moreover, we agree with the Crown that the trial judge overemphasized the
    concept of rehabilitation at the expense of the principles of deterrence and
    denunciation in his reasons.

[13]

However, at the hearing of the appeal we had the
    benefit of fresh evidence, filed on consent, with respect to Walshs
    rehabilitation and current status, that puts this case into a very rare
    category.  The fresh evidence confirms his unusual and exceptional efforts
    at rehabilitation and the continued success of those efforts.  In this
    sense, it may be said that in these particular circumstances his so-far
    successful rehabilitation is responsive as well to the sentencing principle of
    specific deterrence.  It may also be said, as counsel for Walsh submits  again,
    in this particular context  that the principle of general deterrence is at
    least partially accommodated through Walshs very public acknowledgement of his
    criminal career and his public attempts to educate those living similar
    lifestyles to understand that the consequences are jail or death (as he is
    reported to have put it)  all reinforced by his own transformation and
    reformation.

[14]

In the very particular circumstances of this case,
    therefore  given the rehabilitative progress Walsh has made and the fact that he
    is out in the community now and continuing not only to respond well but also to
    assist others facing drug-related problems  we are not inclined to interfere
    with the sentence imposed.  As counsel submits, further incarceration of
    Walsh would serve little useful purpose, and might well be counterproductive
    from a societal point of view as it could undermine what he appears genuinely
    to have achieved, take away what he has to offer to the community, and
    lead to a further cycle of harmful conduct towards that community.

[15]

Accordingly, while leave to appeal is granted, the appeal as to sentence

is dismissed.

RELEASED:  Apr. 26,
    2011                                                                        K.M.
    Weiler J.A.

KMW                                                                                R.A.
    Blair J.A.

G.J. Epstein J.A.

[1]
The appellant was charged on April 18, 2009 and sentenced on August 20, 2010.  The
Truth
    in Sentencing Act
S.C. 2009 c. 29, amends s. 719(3) of the
Criminal Code
by providing that a court
    shall limit any credit for pre-trial custody to a maximum of one day for each
    day spent in custody.  Subject to two
    exceptions, if the circumstances justify it, the maximum is one and one-half
    days for each day spent in custody.  The
Act
applies to persons
charged
after the
Act
came into force on February 22, 2010.


CITATION:
R. v. Ward, 2011
          ONCA 267

DATE: 20110406

DOCKET: C50704

COURT OF APPEAL FOR ONTARIO

Simmons, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Brian Ward

Respondent

Alexander Alvaro, for the appellant

Kristin Bailey, for the respondent

Heard and released orally: March 30, 2011

On appeal against the stay of proceedings imposed by Justice
          Stephen D. Brown of the Ontario Court of Justice on June 2, 2009.

ENDORSEMENT

[1]

The respondent was facing six charges on five informations
    relating to events that occurred between July 16, 2008 and January 17, 2009.
    The charges ranged in seriousness from theft under to break, enter and theft in
    relation to a dwelling house, obstruct a peace officer and uttering a death
    threat.

[2]

Following a contested bail hearing on March 27, 2009, the
    respondent was released on a recognizance with a surety. On April 22, 2009, the
    respondent attended court with his surety to have the bail revoked for what was
    anticipated to be a 10-day period during which the surety was going out of the
    country, thus unable to supervise the respondent. On April 23, 2009, the matter
    was remanded to May 4, 2009 for a bail hearing.

[3]

Unfortunately, the May 4, 2009 return date coincided with an
    illegal strike at the Maplehurst Detention Centre where the respondent was
    detained. The respondent was not transported to court until after 1 p.m. on
    both May 4 and 5, 2009 with the result that his bail hearing did not
proceed
until May 7, 2009. The respondents surety was not
    present and the bail hearing proceeded on a contested basis. The justice of the
    peace declined to make an order for the respondents release on his own
    recognizance and instead made an order permitting his release on a recognizance
    with a surety on terms identical to the March 27, 2009 order.

[4]

As of June 2, 2009, the respondent had not yet been released.
    Accordingly, he moved for a stay of all charges, arguing that the four-day
    delay in conducting his May 4, 2009 bail hearing was a contravention of s. 503
    of the
Criminal Code
and ss. 7,
    9 and 11(e) of the
Charter
.

[5]

The trial judge concluded that the state had breached its
    obligation to bring the respondent before the court in a timely manner and that
    in the intervening period the respondent had also been deprived of his right to
    retain and properly communicate with counsel. Although the trial judge found
    that the breaches of the respondents rights would not affect the fairness of
    the trial, he concluded that they did impact the respondents ability to make
    full answer and defence at his bail hearing. He further found that the conduct
    of the correctional officers at the Maplehurst Detention Centre, which was
    found by the Ontario Labour Relations Tribunal to amount to an illegal strike,
    was an affront to the administration of justice such as to shock the conscience
    of the community. Based on these findings, the trial judge concluded that the
    only appropriate remedy was a stay.

[6]

The Crown argues that this case does not fall into the
    category of one of the clearest of cases warranting a stay. We agree.

[7]

The legal principles governing applications for a stay are
    well established. They were summarized by this court in the recent decision of
R. v. Zarinchang
(2010),
99 O.R. (3d) 721 (C.A.),
at para. 57.

[8]

As was recognized by the trial judge, this case falls into
    the residual category of cases in which a stay may be granted, as there was no
    impact on the fairness of the trial.

[9]

The standard of review and legal principles governing the
    residual category are set out in
Canada
    (Minister of Citizenship and Immigration) v. Tobiass
,

[1997] 3 S.C.R. 391, at paras. 87-92.

[10]

In this case, the presenting problem was an illegal strike.
    An illegal strike, standing alone, is not state misconduct. There is no
    evidence that state misconduct caused or even contributed to the strike.
    Moreover, the state moved promptly to remedy the problem by having the strike
    declared illegal.

[11]

Although we agree that it was unfortunate that the
    respondents bail hearing was delayed, the delay was relatively brief. Further,
    there was no evidence that the respondent was actually prejudiced in any real
    way by the delay as his surety did not attend to facilitate his release at any
    time between May 4, 2009 and the return date of the stay application. Moreover,
    there was no admissible evidence before the application judge to explain that
    omission. On a practical level, in our view, there is simply no evidence of
    state conduct that resulted in an abuse of process
vis-à-vis
the respondent. In the end, we are satisfied that the
    state did not conduct this matter in a way that renders the proceeding unfair
    or in a manner that is otherwise damaging to the integrity of the judicial
    system: see
Tobiass
at para. 90.

[12]

The appeal is therefore allowed and the stay is set aside.

[13]

The respondent is ordered to surrender within 7 days, failing
    which a warrant for his arrest shall issue.

Signed:           Janet
    Simmons J.A.

R.
    A. Blair J.A.

David
    Watt J.A.