COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gatfield, 2016 ONCA 23

DATE: 20160113

DOCKET: M45553 (M36541)

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harvey Gatfield

Applicant

Mark Halfyard and Breana Vandebeek, for the applicant

Michael Bernstein, for the respondent

Heard: January 5, 2016

On application for an extension of
    time within which to seek a review of the order of Justice S. Borins of the Court
    of Appeal for Ontario, In Chambers, dated November 14, 2008.

By the Court:

I.        Background

[1]

On February 26, 2002, following a trial by judge and jury, the applicant
    Harvey Gatfield was convicted of second-degree murder.  On April 29, 2002, he
    was sentenced to life imprisonment without eligibility for parole for 18 years.

[2]

About six and one-half years after his conviction and his sentencing
    hearing, the applicant applied to a single judge of this court for an order
    extending the time within which to serve and file a notice of appeal from his
    conviction and sentence.  On November 14, 2008, for clear albeit concise reasons,
    Borins J.A. of this court dismissed the applicants extension application.  In
    so doing, he said:

The long delay since the date of the conviction  6 ½ years
    is disturbing.  The appellants assertion that he thought it took a long time
    to process a prisoners appeal does not explain the lengthy lack of due
    diligence in pursuing the appeal.  Therefore, his lack of diligence in pursuing
    the appeal outweighs his apparent intention to appeal within the allotted
    time.  All of this is underscored by the appellants inability to provide a
    credible reason for the delay that is demonstrated by his cross-examination.

Given the long unexplained delay on the part of the appellant,
    I do not believe it is in the interests of justice to grant an extension of
    time to appeal.

[3]

More than seven years have passed since the date of Borins J.A.s
    dismissal order.  Nonetheless, the applicant now applies for an order extending
    the time to serve and file an application requesting a review of Borins J.A.s
    order and, if an extension be granted, seeks a panel review of that order with
    the objective of having it set aside and obtaining an extension of time within which
    to appeal from both his murder conviction and sentence.

[4]

By order of Epstein J.A. of this court dated October 28, 2015, the
    applicants request for an extension of time and, if an extension be granted,
    his request for a panel review of Borins J.A.s order were directed to be heard
    together by a full panel of this court.

II.       Discussion

[5]

As appears from the facts described above, the circumstances surrounding
    the current applications are most unusual.  Almost 14 years ago, a jury
    convicted the appellant of murder.  And, as we have said, the order denying the
    applicant an extension of time to appeal was itself made more than seven years
    ago.  It is incumbent on the applicant to demonstrate that the justice of the
    case requires that an extension of time to seek to set aside Borins J.A.s
    order be granted notwithstanding this lengthy delay:
R. v. Ansari
,
    2015 ONCA 891, at para. 23.

[6]

In our view, the applicant has failed to meet this burden.

[7]

First, apart from the lengthy and inadequately explained delay in moving
    initially before Borins J.A. for an extension of time within which to file a
    notice of appeal from his conviction and sentence (six and one-half years from
    the date of the applicants conviction), there is no evidence before this court
    that the applicant formed a
bona fide
intention to seek an order
    setting aside Borins J.A.s order on a timely basis.

[8]

Indeed, the evidence is to the contrary.  Based on the applicants own
    evidence on cross-examination, he did not begin to consider the option of seeking
    to set aside Borins J.A.s order of November 2008 until December 2013  five
    years after the date of the order.  Even then, the applicant did not commit to
    pursuing this option.  On the record before us, it was not until March or April
    2015 that he initiated an application aimed at securing a review of Borins
    J.A.s order.

[9]

It follows that, contrary to the applicants contention, the record
    belies the claim that the applicant moved with due diligence to set aside
    Borins J.A.s order.  The record reveals that he waited years before taking any
    steps to obtain relief from the denial of his extension application.  Even after
    he learned, at the latest, by October 2013 that he could move to set aside
    Borins J.A.s order, the applicant did not move until the spring of 2015 for an
    extension of time within which to seek a review of the order.

[10]

We
    accept that the applicants limited education and the fact of his incarceration,
    among other factors, may have contributed to difficulties in moving this matter
    forward.  However, in our view, the applicant has failed to offer a reasonable
    explanation for his very lengthy delay.

[11]

Perhaps
    more importantly, the applicant has failed to demonstrate any basis for intervention
    with Borins J.A.s discretionary order.  The circumstances in which a panel of
    this court will reconsider the decision of a single judge of this court to deny
    an application for an extension of time are narrow: see for example,
R. v.
    Shea
, 2010 SCC 26, [2010] 2 S.C.R. 17.  No party is entitled to an
    extension of time as of right.  Rather, the decision to grant or refuse an
    extension is discretionary:
Ansari
, at para. 21.  This has particular
    significance where the extension sought is to seek a review of a discretionary
    decision of a single judge of this court.

[12]

The
    applicant submits that it was unreasonable for Borins J.A. to conclude, as he
    did, that the applicant had failed to advance an adequate explanation for his
    six and one-half year delay in seeking an extension of time within which to
    appeal.  He further submits that Borins J.A. erred by ignoring the applicants
    efforts, following his conviction and sentencing hearing, to initiate an
    appeal, and the factors that impeded those efforts.

[13]

Again,
    we disagree.

[14]

It
    was open to Borins J.A., on the record before him, to conclude that the
    applicant had failed to move with dispatch to ensure that an appeal was
    properly initiated before this court.  The record reveals unexplained periods
    of several years pre-2008 delay when the applicant took little, if any, steps
    to proceed with an appeal or an extension application.

[15]

Moreover,
    the record confirms that the applicant was familiar with the procedures
    involved in processing an inmate appeal.  Following his incarceration and
    before the date of his application before Borins J.A., the applicant applied in
    writing for an extension of time to appeal from his convictions on other
    offences.  That application was dismissed by this court on October 22, 2007:
R.
    v. Gatfield
, M34771, October 22, 2007.  In refusing the extension
    application, this court stated, at paras. 6 and 9:

The overriding consideration on a motion for an extension of
    time to file a notice of appeal is whether the interest of justice requires the
    application be granted.  In answering this question, the court will consider
    whether the applicant had a
bona fide
intention to appeal within the
    appeal period, the explanation for the delay in filing, and whether there is
    merit to the appeal.

.

The Crown submits that despite the evidence of the applicants
bona
    fide
intention, the applicant did not demonstrate appropriate diligence in
    pursing his appeal over the five years between his original attempt to file a
    Notice of Appeal in March 2002 and his second Notice of Appeal filed on
    February 21, 2007.  We agree that the long unexplained delay on the part of the
    applicant during that period is troubling.  The applicants lack of diligence
    in pursuing his appeal outweighs his
bona fide
intention to appeal
    within the allotted period in determining the interests of justice. The vague
    assertion that he needed to deal with another charge does not explain five
    years of lack of diligence in pursuing the appeal.

In our view, these comments are also apposite here.

[16]

Nor
    do we see any ground on which to conclude that Borins J.A. ignored any relevant
    factors in deciding to deny the applicants extension application.  Justice
    Borins had a full record of the applicants activities in connection with his
    proposed appeals before him, including the transcript of the applicants
    cross-examination on his affidavit filed in support of the extension
    application.  His reasons afford no basis for concluding that he ignored any
    salient part of that record, or the evidence relied on by the applicant as an
    explanation for his delay.

[17]

Finally,
    we agree with the Crown that the nature of these applications is relevant to
    the question whether the discretionary relief sought should be granted.  The issue
    before us is not whether the applicants proposed appeals from conviction and
    sentence have merit.  Rather, the issue is whether it is in the interests of
    justice to permit the applicant, after extraordinary delay, to seek to set
    aside Borins J.A.s dismissal order.

[18]

That
    said, we have nonetheless reviewed the trial judges charge to the jury in
    light of the proposed grounds of appeal identified by the applicant (which, we
    note, include two grounds not raised before Borins J.A.).  Having done so, we
    are far from persuaded that there is any substantive merit to the proposed
    conviction appeal.  Nor do we think it likely that a panel of this court would
    regard the sentence imposed as manifestly unfit or tainted by any error in
    principle.

III.      Disposition

[19]

For these reasons, the application for an extension of time to seek a
    review of the order of Borins J.A. by a panel of this court is dismissed.  It
    is therefore unnecessary to further address the merits of that proposed review.

[20]

We
    thank all counsel for their helpful and considered submissions in this matter.

E.A. Cronk J.A.

M. Tulloch J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Hall, 2016 ONCA 13

DATE: 20160108

DOCKET: C58656

Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jeremy William Hall

Respondent

Amanda Rubaszek, for the appellant

Dirk Derstine and Stephanie DiGiuseppe, for the
    respondent

Heard:  September 17, 2015

On appeal from the acquittals entered by Justice Gerald E.
    Taylor of the Superior Court of Justice at Hamilton, Ontario, sitting without a
    jury, on March 20, 2014.

Doherty J.A.:

I

overview

[1]

The respondent, Jeremy Hall, was charged with two counts of counselling
    murder.  The Crown alleged that Hall attempted to hire Dwayne Utman to kill two
    people who were Crown witnesses against Hall on various firearm-related
    charges.

[2]

In two pretrial rulings, the trial judge excluded a statement made to
    the police by Carol Anne Eaton, the common law spouse of Hall, and certain intercepted
    communications between Hall and Utman.  The trial proceeded with Utman as the
    main Crown witness.  The trial judge acquitted.

[3]

The Crown appeals from the acquittals, alleging that the trial judge
    erred in law by excluding Ms. Eatons statement and the intercepted
    communications.  For the reasons that follow, I would dismiss the appeal.

II

background facts

[4]

A brief overview of the evidence adduced at trial will suffice.

[5]

In May 2009, the respondent pointed a gun at Tony Yaworski and
    threatened him.  Yaworskis friend, Angelo Salciccioli, witnessed the
    incident.

[6]

Hall was arrested and charged with various offences including
    threatening.  Hall contacted Yaworski before the preliminary inquiry and tried
    to persuade him not to testify.  Yaworski testified at the preliminary
    inquiry.  Sometime after the preliminary inquiry, Hall threatened Yaworski.

[7]

Dwayne Utman had known the respondent since childhood.  They had been
    involved together in criminal activity.  Utman was incarcerated in February
    2010 and eventually became Halls cellmate.

[8]

According to Utman, Hall told him that he was charged with threatening a
    person with a .357 magnum handgun and that he would beat the charge if the
    witnesses did not show up at trial.  Over time, Utmans conversations with Hall
    became more serious and more specific.  Hall asked Utman if he would help him
    make sure that the witnesses did not show up for trial.  The respondent spoke
    about killing one of the witnesses and later indicated that both should be
    killed.  He offered Utman $5000. Hall and Utman discussed various ways of
    killing the witnesses.

[9]

Utman testified that he never had any intention of killing anyone.
    According to his evidence, he went to the police shortly after Hall began to
    discuss murdering the witnesses.  Utman became the eyes and ears of the
    police while he was the respondents cellmate.  He reported the substance of
    his conversations with the respondent to the police.  Some of the conversations
    were intercepted pursuant to a judicial authorization.

[10]

Utman
    continued to work as a police agent after he was released from custody.  He
    spoke to Hall on the phone and on one occasion visited him in jail.  The police
    recorded some of those conversations under the authority of a judicial
    authorization.

[11]

The
    Crown also led evidence that Halls common law wife, Carol Anne Eaton, took the
    police to a storage locker and directed them to two bags containing four operable
    firearms, two rifles and two handguns. One of the handguns was a .357 magnum.

[12]

The
    respondent called a defence but did not testify.

[13]

The
    Crowns case depended almost entirely on Utmans evidence.  Utman was a career
    criminal, a drug addict, an habitual liar and he had significant mental health
    issues.  He stood to gain financially from assisting the police. There was also
    evidence that when Utman contacted the police and told them about Halls
    statements, Utman believed that Hall had tortured and murdered his sister a few
    years earlier.  Her death had been ruled a suicide.  The defence maintained
    that Utmans belief that Hall was involved in his sisters death gave Utman a powerful
    motive to falsely implicate Hall.

[14]

The
    trial judge instructed himself that Utmans evidence must be approached with
    extreme caution.  He reviewed Utmans evidence at length and identified many
    difficulties with that evidence. Ultimately, the trial judge was not prepared
    to convict based on Utmans testimony.

III

A.

the admissibility of carol anne eatons statement

[15]

Carol Anne Eaton is the common law spouse of Mr. Hall.  She met with the
    police at her fathers request on August 25, 2010.  As described above she took
    the police to a storage facility and pointed out two bags containing four
    operable firearms, one of which was a .357 magnum. The police interviewed Ms.
    Eaton the next day.

[16]

Ms.
    Eaton gave two lengthy videotaped statements under oath on August 26, 2010.  One
    of the statements involved the murder of a man named Billy Mason.  Mason,
    himself a career criminal, had been murdered in 2006.  The police suspected
    Hall.  Ms. Eaton told the police that Hall had admitted to murdering Mr.
    Mason.  The second statement related to the charges of counselling the murder
    of Mr. Yaworski and Mr. Salciccioli.  Ms. Eaton told the police that she dug up
    the guns they found in the storage facility on Halls instructions and took
    them to the storage facility.  Hall also told Ms. Eaton that Utman would be
    calling her and that she should give Utman Frank.  Frank was a nickname Hall
    used for one of his guns.  Ms. Eatons statement, if admissible, offered some support
    for Utmans evidence that Hall wanted him to murder the two witnesses.

[17]

The
    Crown tried Hall for the murder of Mr. Mason first. At that trial the Crown
    sought to call Ms. Eaton as a witness.  The trial judge held that s. 15 of the
Charter
required that s. 4 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5 be
    read to include common law spouses, meaning that Ms. Eaton was not a
    compellable witness for the Crown on the murder charge
[1]
:
R. v. Hall
, 2012 ONSC 7084;
R. v. Hall
, 2013 ONSC 834.

[18]

After
    the trial judge at the murder trial ruled that Ms. Eaton was not a compellable
    witness for the prosecution, the Crown, relying on the principled exception to
    the hearsay rule, sought to introduce Ms. Eatons statement to the police for
    the truth of its contents.  The trial judge, applying
R. v. Couture
,
    2007 SCC 28, [2007] 2 S.C.R. 517, held that admitting Ms. Eatons statement
    would effectively thwart the spousal incompetency rule.  The trial judge excluded
    the statement:
R. v. Hall
, 2013 ONSC 1152.
[2]

[19]

At
    the trial of the counselling charges, the Crown chose not to call Ms. Eaton
    as a witness for the prosecution. The Crown conceded, based on the trial
    judges ruling in the murder case, that Ms. Eaton, as a common law spouse, was
    not compellable by the Crown.

[20]

The
    Crown, however, did attempt to introduce Ms. Eatons statement to the police concerning
    Halls involvement in the counselling charges, arguing as it did at the murder
    trial, that the statement was admissible for its truth under the principled
    exception to the hearsay rule. The Crown relied on the non-compellability of
    Ms. Eaton to establish the necessity requirement for the admissibility of her
    statement and submitted that the totality of the circumstances surrounding the
    taking of the statement demonstrated sufficient threshold reliability.

[21]

The
    Crown accepted that, in addition to establishing the preconditions of necessity
    and threshold reliability, the Crown had to demonstrate that the statement was
    admissible under the
ratio
in
Couture
.  The Crown argued that
    the facts of the case were distinguishable from
Couture
and warranted
    a different result.  This was essentially the same argument the Crown had
    unsuccessfully advanced at the murder trial.

[22]

Trial
    counsel agreed that the admissibility of Ms. Eatons statement should be
    approached in two stages.  At the first stage, the trial judge would determine,
    applying
Couture
, whether the statement should be excluded as
    undermining the rationale of the spousal incompetency rule even if it was
    otherwise admissible hearsay.  At the second stage, the court would determine
    whether Ms. Eatons statement was sufficiently reliable to justify its
    admission under the principled exception to the hearsay rule.  The Crown and
    defence agreed that the
Couture
 issue should be argued and decided before
    addressing the threshold reliability issue.  That issue, which would require an
    evidentiary inquiry, would not be reached if the Crown failed to adequately
    distinguish
Couture
.

[23]

The
    trial judge proceeded as suggested by counsel. He decided that the analysis in
Couture

    dictated that Ms. Eatons statement should be excluded.  Consequently, he did
    not reach the question of threshold reliability:
R. v. Hall
, 2014 ONSC
    434.  The trial judge said, at para. 12:

In my view, the admissibility of the statement made by Carol
    Anne Eaton which the Crown seeks to introduce as evidence at the trial of
    Jeremy Hall is governed by the decision in
Couture
.  In the present
    case, the statement of Carol Anne Eaton was made during the marriage, just like
    the statement in
Couture
.  Carol Anne Eatons statement was taken
    under oath and generally in accordance with the procedure recommended in
R.
    v. B. (K.)(G.)
, [1991] 1 S.C.R. 740.  From this, I conclude that the
    statement was taken with the express intention of seeking to have it admitted
    in evidence against Jeremy Hall pursuant to the principled exception to the
    hearsay rule.

[24]

The
    Crown launched this appeal in April 2014. In her factum Crown counsel accepted,
    as the Crown had at trial, that Ms. Eaton was not a compellable witness for the
    Crown and that
Couture
governed the admissibility of Ms. Eatons
    out-of-court statement.  Counsel argued that the trial judge had erred in law
    in his application of the principles from
Couture
to the facts of this
    case.

[25]

Before
    oral argument of this appeal, this Court released
R. v. Nguyen
, 2015
    ONCA 278, 125 O.R. (3d) 321. At para. 68 and following, the court held that the
    exclusion of common law spouses from the ambit of spousal non-compellability in
    s. 4 of the
Canada Evidence Act
was a justified infringement of s.
    15(1) of the
Charter
.
Nguyen
determined that common law spouses
were
    compellable witnesses for the Crown in a criminal prosecution.

[26]

The trial judges rulings must be considered in light
    of
Nguyen
.
Nguyen
impacts on the proceedings at trial in two ways.  First,
Nguyen
establishes that Ms. Eaton was a compellable witness,
[3]
meaning the Crown could not rely on spousal non-compellability to establish the
    necessity prerequisite to the admission of Ms. Eatons out-of-court statement.
    Second, because Ms. Eaton was compellable,
Couture
had no application
    to the admissibility of Ms. Eatons statement. The admissibility of that
    statement turned entirely on considerations of necessity and threshold reliability:
R. v. Nguyen
, at para. 136.

[27]

The
    Crown appeal must also be assessed in light of the law as articulated in
Nguyen
.  No doubt
, were the trial held post-
Nguyen
,
    the Crown would have called Ms. Eaton as a witness and, depending on her
    testimony, would have attempted to introduce her out-of-court statement.  However,
    the Crown cannot, and does not, argue that the trial judge erred in holding that
    Ms. Eaton was not a compellable witness. The trial judge made no such ruling.
    The Crown chose not to call Ms. Eaton and thereby require the trial judge to
    make a ruling on her compellability.  The Crown chose instead to proceed on the
    basis that Ms. Eaton was not compellable.

[28]

The
    Crown does argue that the trial judge erred in excluding Ms. Eatons
    statement.  Clearly, the trial judge, who did not have the benefit of
Nguyen,
erred. After
Nguyen
,
Couture
was irrelevant to the
    admissibility of Ms. Eatons statement.  The trial judge erred in law in
    excluding the statement on the basis of
Couture
.

[29]

Not
    every error in law entitles the Crown to succeed on an appeal from acquittal.
    The Crown must show in the concrete reality of the case at hand that the
    legal error had some material bearing on the acquittal, such that the outcome
    may well have been affected by the legal error:
R. v. Graveline
, 2006
    SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16;
R. v. McRae
,
2013 SCC 68,

[2013] 3 S.C.R. 931, at para. 30;
R. v. Riesberry
, 2015
    SCC 60, at para. 13.

[30]

The
    Crown cannot demonstrate that the erroneous application of
Couture
had
    a material bearing on the exclusion of the evidence and hence the acquittal of
    Hall.  On the record before the trial judge, he could not possibly have
    admitted Ms. Eatons statement under the principled exception to the hearsay
    rule. The Crown relied exclusively on Ms. Eatons assumed non-compellability to
    establish the necessity prerequisite to the admission of her out-of-court statement.
     As
Nguyen
instructs
,
    Ms. Eaton was compellable.  Absent any other evidentiary basis for a finding of
    necessity, the trial judge could not have admitted Ms. Eatons statement.
    Consequently, while
Nguyen
renders
Couture
inapplicable, it
    also effectively renders Ms. Eatons out-of-court statement inadmissible
    without first calling Ms. Eaton and establishing the requisite necessity:  see
R.
    v. B.(K.G.)
, [1993] 1 S.C.R. 740, at pp. 796-799.

[31]

The
    Crown on appeal invites the court to conclude that had the Crown called Ms.
    Eaton, she would have either refused to testify, or would have recanted her
    statement to the police to the extent that it incriminated Hall.  Had either
    occurred, the necessity requirement for the admissibility of her out-of-court
    statement would have been established.

[32]

The
    Crowns speculation as to what may have occurred had Ms. Eaton been called as a
    Crown witness may well be correct. It remains, however, speculation.  Apart
    from its discretion to receive fresh evidence in limited circumstances, this
    court takes the trial record as it finds it.  The Crown on an appeal from
    acquittal must demonstrate reversible legal error based on that record, not
    reversible error based on a record that might have existed had different tactical
    decisions been made at trial.  On the trial record, the trial judge could not admit
    Ms. Eatons statement to the police under the principled exception to the
    hearsay rule.  His misapplication of
Couture
to that statement had no
    impact on its ultimate admissibility.

[33]

Nothing
    in my analysis should be taken as a criticism of trial counsel for the Crown.  He
    made a reasonable decision to not re-litigate the question of Ms. Eatons
    compellability.
[4]
With the benefit of
Nguyen
, Crown counsel undoubtedly would have made
    a different decision, the trial would have followed a different evidentiary course,
    and the verdict may have been different.  Neither alters the fact that this
    trial record offers no basis upon which Ms. Eatons statement could be admitted
    under the principled exception to the hearsay rule.

[34]

My
    analysis is predicated on the limited power of the Crown to appeal from an
    acquittal, and the limited powers of this court on an appeal from acquittal.
    The result may well be different were this an appeal from conviction, given the
    broader grounds on which an accused can appeal, and this courts power to allow
    an appeal where there is a miscarriage of justice:
Criminal Code
s.
    686(1)(a)(iii).  The court cannot allow an appeal from an acquittal on the
    basis of a miscarriage of justice.

[35]

This
    ground of appeal fails.

B.

the admissibility of the intercepted communications

(i)

The authorizations

[36]

The
    Crown obtained an authorization in June and a second one in July of 2010 permitting
    the interception of Halls conversations with Dwayne Utman.  The first authorization
    permitted interceptions in the jail cell shared by Hall and Utman.  The second expanded
    the scope of the first, permitting interceptions at various other locations. The
    two authorizations can be examined together.  There is no argument that one
    authorization could survive judicial scrutiny and the other could not, or that
    evidence obtained under one authorization may be admissible while evidence
    obtained under the other should be excluded under s. 24(2) of the
Charter
.
    The two stand or fall together.

[37]

Both
    authorizations were granted under s. 184.2 of the
Criminal Code
.  That
    section requires that at least one party to the communication consent to the
    interception.  Utman consented to the interception of his communications with Hall
    and the appropriate consents were attached to the applications for the
    authorizations.

[38]

The
    authorizations permitted interceptions in respect of murder (the Mason murder)
    and counselling murder (the plot to murder the two witnesses).  They allowed
    interceptions of communications in the jail cell shared by Hall and Utman and
    at any other place used by the consenting party, Utman.

[39]

The
    Crown sought to introduce several intercepted conversations between Utman and
    the respondent.  These included 10 intercepted jail cell communications and
    some 80 cell phone communications and conversations intercepted using a body
    pack.  The evidentiary significance of the interceptions is a matter of
    debate.  The content of some, however, was capable of confirming aspects of
    Utmans trial testimony about the plan to murder the two witnesses.
[5]

[40]

Section
    184.2(3) sets out the three preconditions to the granting of an authorization
    under s. 184.2:

·

There must be reasonable grounds to believe the identified
    offence has been or will be committed (s. 184.2(3)(a));

·

One of the intended participants in the communication to be intercepted
    must consent to the interception (s. 184.2(3)(b)); and

·

There must be reasonable grounds to believe that information
    concerning the named offences will be obtained by the interceptions of the
    communications (s. 184.2(3)(c)).

(ii)

The trial proceeding

[41]

The affidavits relied on in support of the application for the
    authorizations contained information provided to the affiant from a variety of
    sources, however, the most significant information came from Dwayne Utman.  The
    affiant described that information as new and compelling.  Counsel for Hall argued
    that without the information provided by Utman, there was no basis upon which
    the authorizations could have been granted.  He submitted that without Utmans
    information, there were no grounds to believe that the conversations between
    Utman and Hall could provide evidence of either Masons murder or the counselling
    of the murder of the witnesses (s. 184.2(3)(c)).  Furthermore, he submitted
    that without the information provided by Utman, there were no reasonable
    grounds to believe that Hall had counselled or would counsel Utman to kill the
    two witnesses (s. 184.2(3)(a)).

[42]

Counsel
    was allowed to cross-examine the affiant.  Counsels cross-examination focussed
    on factors relevant to Utmans credibility and the reliability of the
    information he had provided to the police.  He argued that the cross-examination
    demonstrated that the affiant failed to disclose several significant facts material
    to a proper assessment of Utmans credibility and the reliability of the
    information he gave to the police.

[43]

The
    trial judge found that the affiant had failed to disclose information germane
    to a proper assessment of Utmans credibility:
R. v. Hall
, 2014 ONSC
    708, at paras. 48-51.  He identified five specific areas of non-disclosure:

·

The affiant failed to disclose that Utman had a powerful motive
    to falsely implicate Hall.  He believed that Hall was involved in the torture
    and murder of his sister a few years earlier.

·

The affiant failed to disclose that Utman had tried to get a
    deal in exchange for helping the police implicate Hall.

·

The affiant failed to disclose the full extent of Utmans
    criminal activity.

·

The affiant failed to disclose Utmans ongoing drug addiction.

·

The affiant described Utman as a police agent, although that
    status had not been finalized when the affidavit was sworn.

[44]

After
    identifying the areas in which the affiant had failed to make full and frank
    disclosure of facts material to Utmans credibility, the trial judge said, at
    paras. 51-52:

Im drawn to the conclusion that Detective Sergeant Johnstone
    [the affiant] intentionally or negligently portrayed Dwayne Utman in a far more
    favourable light than he should have.  In my view, this conduct materially
    distorted the picture that was placed before the issuing Justice.  This is not
    a case where the information that was not before the issuing Justice can be
    considered by me as a result of amplification

In the result, because of the material omissions about Dwayne
    Utmans background and the more favourable portrayal of him as a police agent,
    I find that the facts provided by Dwayne Utman as contained in the affidavit in
    support of the wiretap authorization must be excised.

[45]

Having
    excised information sourced to Utman, the trial judge considered whether the
    remainder of the information satisfied the statutory prerequisites for the granting
    of the authorizations.  He concluded that it did not and set aside the
    authorizations:
R. v. Hall
, 2014
    ONSC 708
, at paras. 53-55.

[46]

The
    trial judge then turned to the
Charter
.  Absent the authorizations,
    the interceptions were unlawful and constituted an infringement of Halls
    rights under s. 8 of the
Charter
.  In concluding that s. 24(2)
    required the exclusion of the interceptions from evidence, the trial judge
    emphasized the serious nature of the police misconduct, describing the
    non-disclosure of material facts as either intentional or grossly
    negligent, and the availability of Utman as a witness at trial:
R. v.
    Hall
,
2014 ONSC 708,
at
    paras. 61-64.

(iii)

Did the trial judge err in setting aside the authorizations?

[47]

The
    trial judge acknowledged the narrow ambit of his review of the orders granting
    the authorizations:
R. v. Hall
,
2014 ONSC 708, at
paras. 42-47.  He referred to some of the
    applicable case law, beginning with
R. v. Garofoli
, [1990] 2 S.C.R.
    1421, at p. 1452, in which Sopinka J. said:

The reviewing judge does not substitute his or her view for
    that of the authorizing judge.  If based on the record which was before the
    authorizing judge as amplified on the review, the reviewing judge concludes
    that the authorizing judge could have granted the authorization, then he or she
    should not interfere.  In this process, the existence of fraud, non-disclosure,
    misleading evidence and new evidence are all relevant, but, rather than being a
    prerequisite to review, their sole impact is to determine whether there
    continues to be any basis for the decision of the authorizing judge.

[48]

The
    language from
Garofoli
has been repeated with and without minor variations
    in an unbroken line of authority stretching over the last 25 years:  e.g. see
R.
    v. Pires
, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30.  No one has said
    it more clearly than Sopinka J. and I will use his language.

[49]

In
    her helpful submissions, Crown counsel contends that the trial judge improperly
    deleted information from the affidavit which had not been shown to be
    inaccurate.  Relying on cases like
R. v. Ebanks
, 2009 ONCA 851, 97
    O.R. (3d) 721, at paras. 25-28, she submits that the trial judge should have
    gone through the affidavit as amplified by the cross-examination and omitted
    only the factual assertions shown to be inaccurate or misleading.  Counsel
    contends that the trial judge went too far in excluding all information sourced
    from Utman.

[50]

The
    Crowns submission misconceives the nature of the attack on the authorization
    in this case.  The cross-examination of the affiant was not intended to show
    that specific facts in the affidavit were misstated or that there were material
    omissions which made an assertion in the affidavit misleading.  The
    cross-examination had a broader goal, aiming to discredit Utman and the
    reliability of the information he had provided to the affiant.  In this case,
    as for example in
R. v. Adair
, [1994] O.J. No. 265, at paras. 94-97
    (Gen. Div.), the cross-examination of the affiant went not to specific
    information in the authorization but to the credibility of the main source of
    the information in the affidavit.

[51]

The
    defence argument required that the trial judge consider the affidavit as
    amplified and expanded and decide whether based on that entire record, there
    remained grounds upon which a judge could reasonably rely on the information
    sourced from Utman as a basis for granting the authorization.  Using the
    language of
Garofoli
, the trial judge was required to take the new
    evidence relevant to Utmans credibility, consider it with the evidence in the
    affidavit, and decide whether there continued to be any basis for the order
    granting the authorizations.  The trial judge followed that approach and
    concluded that the information provided on cross-examination effectively
    destroyed Utmans credibility and the reliability of any information sourced
    from Utman.  Given that conclusion, the trial judge properly assessed the
    continued viability of the authorizations by disregarding any information that
    came from Utman.

[52]

The
    other arguments advanced by the Crown run aground on the shoals of appellate
    deference.  Absent error in law, a failure to consider relevant evidence, a
    material misapprehension of evidence, or an unreasonable factual finding, this
    court must defer to the trial judges assessment of the effect of the
    cross-examination on the sustainability of the authorization:
R. v. Ebanks
,
    at para. 22;
R. v. Sadikov
, 2014 ONCA 72,
305 C.C.C.
    (3d) 421,
at para. 89.

[53]

It
    is beyond dispute that the affiant failed to disclose several facts that were
    relevant to Utmans credibility.  At least some of those facts, for example the
    information pertaining to Utmans belief that Hall may have been involved in
    his sisters murder, were obviously significant to the assessment of Utmans
    credibility and, consequently, the reliability of the information he provided.
    The affiant offered explanations for his omissions.  It was for the trial judge
    to assess the affiants evidence and the cumulative significance of the information
    provided during the affiants cross-examination on the reliability of the information
    coming from Utman.  Different judges might have made different assessments.
    Even if another trial judge may have taken a more benign view of the effect of
    the material omissions on Utmans credibility, that is no reason for this court
    to interfere with this trial judges assessment.

[54]

The
    Crown attempts to show a failure by the trial judge to consider relevant
    evidence by pointing to the absence of any reference by the trial judge to
    information in the affidavit independent of Utman that could confirm the
    reliability of Utmans information.  No doubt, the trial judge was required to
    consider the entirety of the affidavit, including potentially confirmatory
    evidence, in determining the impact of the cross-examination.  It is also true
    that the trial judge did not specifically refer to the confirmatory evidence
    marshalled by the Crown in her argument.  The trial judges failure to advert
    to the evidence does not, however, mean he did not consider it.

[55]

I
    have considered the information highlighted by the Crown.  Some of that
    information refers to facts that are peripheral to the central events, e.g. Halls
    relationship with the Hells Angels, or to facts that would be widely known in
    the local criminal community and were a matter of public record, e.g. the
    nature of the charges against Hall.  This kind of information could do very
    little to buttress Utmans credibility and the reliability of the information
    provided by him as it related to either the murder investigation or to the
    counselling murder investigation.

[56]

The
    Crown also points to information in the affidavit about Masons murder and
    Halls involvement in that murder.  She submits that much of that information
    comes from sources other than Utman and rendered the information Utman did
    provide more credible.  Clearly, this information is not collateral.  It helped
    establish reasonable grounds to believe that Mason had been murdered and that
    Hall was implicated in the murder.  The trial judges concern, however, as it
    related to the murder investigation, was not that there was no basis to implicate
    Hall in the murder, but rather that absent Utmans information, there was no
    basis to conclude that conversations between Utman and Hall could provide
    evidence of the murder:  see
R. v. Hall
,
2014 ONSC 708
,
at para. 53.

[57]

Evidence
    independent of Utman going to show that Mason had been murdered and Hall was
    implicated in that murder would not necessarily lend credence to the Crown claim
    that conversations between Hall and Utman could produce information relevant to
    that murder.  On the trial judges assessment, that link could be found only in
    the information provided by Utman, which he determined was not sufficiently
    reliable to support the belief that conversations between Utman and Hall could
    provide information about the murder.

[58]

The
    Crown next submits that, even if all of the information from Utman was properly
    removed from the affidavit, there remained a basis upon which a judge could reasonably
    conclude that there were grounds to believe that information concerning the Mason
    murder could be obtained through the interception of conversations between
    Utman and Hall.  Crown counsel submits that the failure to consider the residue
    of the information provides a basis for reversal.  She argues that if there
    remained evidence to support the interceptions in relation to the Mason murder,
    the interceptions were lawful, even if they could not be justified as having
    any link to the alleged plot to kill the two witnesses:  see
R. v. Commisso
,
    [1983] 2 S.C.R. 121, at pp. 129-130.

[59]

In
    support of the argument, the Crown relies on the following:

·

Utman and Hall had known each other for years;

·

Utman and Hall had engaged in criminal activity together in the
    past; and

·

Utman and Hall were sharing a jail cell.

[60]

No
    one would suggest that the trial judge was unaware that Utman and Hall shared a
    jail cell and had a common criminal history.  However, he was also aware of
    facts that would suggest that Hall would not be likely to speak to Utman about
    the Mason murder.  Utman and Hall had not seen each other for about eight
    years.  Hall had reason to believe that Utman thought that Hall was involved in
    the torture and murder of his sister.  There was also evidence before the trial
    judge that prior attempts to gather information implicating Hall in Masons
    murder by the interception of communications between Hall and criminal
    associates had failed.

[61]

The
    trial judges failure to specifically advert to the shared criminal history of
    Hall and Utman and their common living accommodation cannot be equated with a
    failure by him to consider those factors.  The trial judges failure to
    specifically advert to this evidence speaks to the relative insignificance of the
    information.  Even if I were prepared to assume that the trial judge had failed
    to consider this information, I do not think it could have altered his determination
    as to the impact of the cross-examination on the sustainability of the authorizations.

(iv)

Did the trial judge err in excluding the evidence?

[62]

Having
    determined that the interceptions were unlawful and therefore breached Halls
    rights under s. 8, the trial judge turned to s. 24(2).  Employing the
    well-known tripartite approach set down in
R. v. Grant
, 2009 SCC 32,
    [2009] 2 S.C.R. 353, the trial judge excluded the evidence.  The Crown accepts
    that the approach in
Grant
controls, but argues that the trial judge
    overemphasized considerations favouring exclusion and underemphasized
    considerations favouring admission.

[63]

This
    part of the appeal does not require any detailed analysis.  The trial judge was
    alive to the applicable law and addressed the factors relevant to the
    application of s. 24(2) of the
Charter
.  Absent legal error, a
    palpable and overriding error, or an unreasonable conclusion, this court defers
    to the trial judges ruling:
R. v. Cô
té
, 2011 SCC 46, [2011]
    3 S.C.R. 215, at para. 44.

[64]

I
    need not review the trial judges analysis of each of the three
Grant
factors.  That analysis reveals no error.

[65]

I
    must, however, emphatically reject the submission that the trial judge
    overstated the seriousness of the police misconduct in considering the
    admissibility of the intercepted communications. The trial judges
    characterization of the omissions from the affidavit as intentional or grossly
    negligent was reasonable.  Those omissions were reasonably capable of
    seriously distorting a proper assessment of the credibility of not only Utman,
    but also Jason Lusted, another long-time criminal said by the affiant to have
    provided information implicating Hall in Masons murder.  As the trial judge
    explained, either the affiant deliberately left out the details to secure the
    authorizations, or he operated under a profound and dangerous misunderstanding
    of the affiants obligation to make full and frank disclosure when seeking an
ex
    parte
order involving a serious intrusion into the personal privacy of the
    target of that order.  That obligation is central to the viability of prior
    judicial authorization as a means of striking the proper balance between
    reasonable and unreasonable state intrusions into personal privacy:  see
Hunter
    et al. v. Southam Inc.
, [1984] 2 S.C.R. 145, at pp. 159-160.

[66]

I
    would defer to the trial judges holding that the evidence should be excluded.

IV

conclusion

[67]

I
    would dismiss the appeal.

Released: DD JAN 08 2016

Doherty J.A.

I agree M. Tulloch
    J.A.

I agree Grant
  Huscroft J.A.

[1]
Section 4 of the
Canada Evidence Act
has been amended.  Section 4 now
    reads:  No person is incompetent, or uncompellable, to testify for the
    prosecution by reason only that they are married to the accused:  S.C. 2015, c.
    13, s. 52(1).

[2]
Hall was ultimately convicted of Mr. Masons murder.  The conviction is under
    appeal.

[3]
The respondent sought to file fresh evidence on the appeal in support of an
    argument that Ms. Eaton was not compellable even on the analysis in
Nguyen
.
    As I would not give effect to the Crowns argument on this ground of appeal, I
    need not consider the respondents request to admit fresh evidence.

[4]
When the Crown elected not to re-litigate Ms. Eatons compellability, apart
    from the trial judgment in the Mason murder, there were trial decisions in
    Ontario going both ways on the compellability of a common law spouse.  Indeed,
    the trial judge at the Mason murder had initially held that Ms. Eaton was
    compellable, but had reconsidered his decision after the Supreme Court of
    Canada released
Quebec (Attorney General) v. A.
, 2013 SCC 5, [2013] 1
    S.C.R. 61.

[5]
Counsel for Hall filed fresh evidence on the appeal pertaining to the accuracy
    of some of the summaries  of the relevant conversations filed at trial.  In
    light of my disposition of the appeal, I need not consider the admissibility of
    this fresh evidence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hayes, 2016 ONCA 47

DATE: 20160115

DOCKET: C58244

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Hayes

Applicant/Appellant

Robert C. Sheppard, for the appellant

Chris Chorney, for the respondent

Heard: January 14, 2016

On appeal from the sentence imposed on June 20, 2013 by
    Justice Jeanine E. LeRoy of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant, a mature recidivist, appeals a sentence of ten years in
    the penitentiary imposed upon him after he pleaded guilty to seven counts of
    robbery and a single count of failure to stop at the scene of an accident.

[2]

Each robbery involved a bank. The appellant entered the bank wearing a
    disguise. He approached a teller and presented a note demanding money and
    claimed to be carrying a gun. The tellers complied. The appellant left the
    bank.

[3]

The robberies took place over a period of two weeks in four different
    places: Napanee, Pickering, Oshawa and London. The appellant was arrested
    shortly after he failed to remain at the scene of a motor vehicle accident that
    occurred during his attempt to escape a police pursuit after completing his
    fourth robbery on the same day in London. He committed all the offences while
    he was unlawfully at large from a halfway house where he resided while on
    statutory release on sentences imposed on previous convictions for robbery.

[4]

The appellant advances two arguments in support of his submission that
    his sentence should be reduced to a penitentiary term of eight years. He
    submits that the sentencing judge erred:

i.

by failing to award the appellant any credit for pre-sentence custody;
    and

ii.

by failing to properly apply the principles of proportionality and
    totality when determining the length of sentence she imposed.

[5]

We would not give effect to either submission.

[6]

In our view, a fair reading of the trial judges reasons for sentence
    makes it clear that she did take into account the period of 18 months
    pre-sentence custody in settling upon the total sentence of 10 years as fit for
    these offences and offender. In this respect, we note that the appellant was
    only entitled to credit for any time spent in custody  as a result of the
    offences upon which he was sentenced. The entire pre-sentence custodial period
    was taken up in serving sentences imposed on pleas of guilty for other
    offences. Those pleas were entered and sentences imposed from time to time at
    the appellants request so that he could maintain his status as a federal
    inmate for statutory release purposes. It is clear that he was entitled to no
    credit under s. 719(3) for the period during which he was serving these
    sentences, and thus for the entire period of pre-sentence custody.  Consideration
    of that time as a determinant of the sentence under appeal was a benefit the
    appellant obtained but one to which he was not entitled.

[7]

Nor are we persuaded that the sentence imposed failed to properly apply
    the principles of proportionality and totality. The trial judge was correct in
    imposing concurrent sentences for the London robberies. Further, it was open to
    her to impose consecutive sentences for the Napanee, Pickering and Oshawa
    robberies and order that those sentences be served consecutively to the
    sentences imposed on the London robberies. After all, these robberies were days
    and miles apart from each other and from the London robberies.

[8]

The reasons of the trial judge reflect no error in principle, nor any
    imbalance in weighing applicable principles, factors or objectives of
    sentencing.

[9]

Leave to appeal sentence is granted, but the appeal from sentence is
    dismissed.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hemsworth, 2016 ONCA 85

DATE: 20160129

DOCKET: C59383

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Hemsworth

Appellant

Zachary Kerbel, for the appellant

Mary Ellen Hurman, for the respondent

Heard: September 17, 2015

On appeal from the conviction entered on June 27, 2014
    and the sentence imposed on November 18, 2014 by Justice John S. Fregeau of the
    Superior Court of Justice.

Epstein J.A.:

OVERVIEW

[1]

After a one-day trial, the trial judge convicted
    the appellant of sexual assault and stayed a charge of sexual interference, on
    the basis of
Kienapple v. R.
[1975] 1. S.C.R.
    729.  The conduct giving rise to the charges allegedly took place during the
    1993-94 school year when the complainant was a grade eight student and the
    appellant was his gym teacher and basketball coach.

[2]

This is a quintessential credibility case. The
    outcome of the trial turned entirely on the trial judges assessment of the testimony
    of the only two witnesses   the complainant and the appellant.

[3]

The complainant described an incident after
    basketball practice when he was in the boys change area.  He testified that
    the appellant fondled his penis, testicles, and buttocks. Approximately 20 years
    later, the complainant disclosed the assault.

[4]

The appellant denied assaulting the complainant.
    The defence theory was that the complainant had fabricated the allegation and
    disclosed it to the mother of his child to forestall being denied access to his
    son. According to the defence, the complainant targeted the appellant because
    he was notorious in the small town of Dryden, Ontario where the conduct allegedly
    occurred. The appellant had been convicted of indecent assault on three female
    students in 2002.

[5]

In this conviction appeal, the appellant argues that
    in assessing his credibility, the trial judge misapprehended certain evidence
    and overemphasized the appellants
demeanour.
The appellant
    also submits that the trial judge applied a harsher level of scrutiny to the
    appellants evidence than to the complainants evidence, thereby undermining
    the appellants ability to raise a reasonable doubt. The appellant submits that
    any one of these errors is sufficient to
warrant
    appellate intervention.

[6]

I agree that the trial judges rejection of the
    appellants evidence is tainted by legal error. I would therefore allow the
    appeal and order a new trial.

BACKGROUND

The Complainants Testimony

[7]

At the time of the incident, the complainant was
    in grade eight. He was passionate about sports, especially basketball. The
    complainant testified that on the occasion in issue, he stayed late after
    practice to shoot hoops with a friend.  After his friend left, the complainant
    went to the boys change room to get into street clothes before going home. After
    about a minute, the appellant entered the room. According to the complainant, the
    appellant came up to the complainant, removed the complainants gym shorts and
    underwear and, using his left hand, fondled the complainants penis and
    testicles.  The appellant also put his right hand on the complainants
    buttocks. The complainant testified that the appellant told him he was not
    hurting him and that he, the complainant, should go home and
practise
.  The encounter lasted between five and eight minutes.

[8]

The complainant did not report the incident at
    that time.  In his words, he stayed the course.  He explained that sports and
    grades were important to him and that he both looked up to the appellant and
    was intimidated by him.

[9]

In his testimony, the complainant described
    another incident involving the appellant that took place a few years later,
    when the complainant was in high school.  The appellant was helping with the
    volleyball team and after a game, approached the complainant, pinched the back
    of his neck and, getting very close to him, complimented him on his playing. According
    to the complainant, this incident caused him to recall the appellants actions
    in the change room.

[10]

The complainant recounted that, by this time, he
    had started dating girls and had come to appreciate that the appellants
    conduct was wrong. This realization made him feel scared, guilty, and
    embarrassed. According to the complainant, these feelings intensified and when
    he was in college, he turned to drugs and alcohol to deal with the impact the
    abuse had on him.

[11]

The complainant also said that sometime in 2011,
    he disclosed the alleged conduct during a disagreement with his then girlfriend
    and the mother of his son.  He gave the following evidence about this
    disclosure:

Q.      Right. And in fact, [the childs
    mother] gave you an ultimatum that unless you got your  and I'll use her words
     "shit together, she was not going to let you see your child or her.
    Remember that happening?

A.      I remember her being really upset with
    me and I remember she may have said that, yes. She was really upset when I,
    when I went to pick up my stuff at her sister's.

Q.      And she described it as a big falling
    out but you just described it as a fight.  Is that fair?

A.      Yeah, it was a fight and she was
    fairly upset with me.

Q.      Okay. And during that part of that
    fight she told you to get your shit together and get some help and unless you
    got counselling, that her and [the child] were going to keep their distance and
    not see you until you got some help. Do you remember her telling you that?

A.      Yeah, she had grown tired of my
    drinking, obviously, throughout our relationship.

[12]

The complainant was cross-examined in
    considerable detail about three prior convictions for sexual assault.  He
    admitted to pleading guilty to all three charges but denied the aggravated
    factual allegations underlying the offences as put to him by defence counsel.

The Appellants Testimony

[13]

At the time of trial, the appellant was 66 years
    old and had retired, after 31 years of teaching. He taught physical education
    and coached the volleyball, baseball, and basketball teams. He estimated that
    he had taught between 2,500 and 3,000 students over the course of his career. The
    appellant testified that in fact he had no recall of teaching or coaching the
    complainant. But he did not dispute that he had.

[14]

The appellant testified that it was possible
    that students were permitted to stay behind after basketball practice
    although that was a rare occurrence. He denied that he had sexually assaulted
    the complainant, and did not recall ever being inside the boys' change room
    when there was only one student present.

[15]

The appellant also gave evidence about his
    criminal record. He testified that he pleaded guilty to three counts of
    indecent assault on a female on September 30, 2002, in relation to incidents
    that took place in the 1970s. According to the appellant, the criminal
    proceedings were followed closely in local newspapers. After serving his one-year
    sentence, the appellant moved away from Dryden.

REASONS FOR CONVICTION

[16]

In his reasons, the trial judge provided a
    detailed review of the evidence of the two witnesses and then concluded with
    his assessment of their credibility.

The Trial Judges Assessment of the
    Complainants Credibility

[17]

The trial judge described the complainants
    evidence in chief as clear and consistent.  He noted that the complainant was
    able to recall details of what took place in the change room on the day in
    question  the appellants actions, his words, and his attire.

[18]

The trial judge noted that cross-examination had
    been directed at impugning the complainants credibility on three issues  his
    previous convictions, the circumstances surrounding his disclosure, and his evidence
    at the preliminary inquiry.  The trial judge found that the complainants credibility
    had not been significantly diminished.

[19]

As previously mentioned, the complainant denied
    aggravated versions of events put to him in cross-examination concerning his prior
    convictions.  However, defence counsel did not attempt to prove the versions
    put to the complainant. Although the trial judge felt that the complainant may
    have minimized his actions in regard to two of the convictions, the trial judge
    reasoned that, in the circumstances where the terms of the plea bargain were
    not clear, this evidence did not negatively impact the complainants
    credibility.

[20]

The trial judge described the inconsistencies in
    the complainants trial testimony and his testimony at the preliminary inquiry about
    what led to his disclosure as a strange discrepancy in the evidence.
    However, at para. 76, the trial judge found that [w]hile it [did] affect his credibility
    to a degree, [he was] not prepared to discount [the complainants] entire
    testimony because of it.

[21]

The trial judge rejected the defence suggestion
    that the complainant had ulterior motives for making allegations against the
    appellant, in part because he found there was no evidence capable of supporting
    the defence position that the complainant targeted the appellant because he had
    a criminal record.

[22]

Ultimately, the trial judge found the
    complainant to be a strong witness whose recall was good and whose credibility
    was not seriously eroded on cross[-] examination.

The Trial
    Judges Assessment of the Appellants Credibility

[23]

The trial judge described the appellant as a
    person who testified in a careful fashion  his evidence lacked spontaneity.

[24]

The trial judge was also troubled by the
    appellants evidence about how he met his responsibilities to the students
    after gym classes as opposed to after sports practices.  He found that the
    appellant had carefully contrasted how he carried out his monitoring
    responsibilities after gym class with those after practice, in order to
    eliminate any opportunity to have committed the offences as described by the
    complainant.

[25]

The trial judge then concluded that the
    appellant, upon realizing that his evidence about how he carried out his
    monitoring responsibilities was inconsistent and illogical, corrected himself
    when he testified that he smoked his cigarette close to an exit door and then
    returned to the hallway to wait until all the students had left.

[26]

Finally, citing

R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, the trial judge instructed himself that, in assessing the
    appellants evidence, he was required to consider the substance of [the
    appellants] evidence, the way in which [he] testified, and also weigh it
    against conflicting Crown evidence. The trial judge summarized his assessment
    of the appellants testimony saying that he was troubled both by the
    appellants demeanour when testifying and some aspects of his evidence.

[27]

The
    trial judge concluded that he did not believe the appellant and that his
    evidence did not raise a reasonable doubt.

ISSUES

[28]

The
    appellant submits that the trial judge erred by:

1.

misapprehending the appellants evidence regarding his post-practice
    routine;

2.

overly relying on the appellants demeanour in assessing his
    credibility; and

3.

applying a different level of scrutiny to the evidence of the appellant
    than to that of the complainant.

ANALYSIS

1.

Did the trial judge misapprehend evidence relating to where the
    appellant was when the boys went to the change room?

[29]

The
    appellant submits that the trial judges conclusion that the appellant gave
    inconsistent and illogical evidence about how he monitored the students after
    gym classes and after sports practices, and then corrected his testimony, constitutes
    a misapprehension of his evidence.

[30]

For
    the reasons that follow, I would give effect to this submission.

The Appellants Evidence about how he Monitored the Students

[31]

The appellant
gave the following evidence about
    how he met his supervisory obligations to students after gym class:

Q.      Could you explain your routine, with
    respect to whether its team events or your gym classes, how you would conduct
    yourself after the class was over?

A.      Okay.  After the class was over I
    would dismiss the students, they would go up to the change room and I would go
    and stand where that perpendicular hallway met the main hallway and I would
    stand there and wait for the students to come out into the little side hallway
    until the bell rang and then I would dismiss them.

Q.      Okay. Was there any, were there any
    occasions that you actually went into, say, the boy's change room?

A.      The only time I ever, well the reason
    I was standing where I was standing was that I could keep track of the kids
    that were in the hallway and, but I could also hear if there was any ruckus
    going on in the boys' change room and that would be the only time I would go
    in.

[32]

After sports practices, however, the routine was
    somewhat different. In response to questions posed by defence counsel about how
    he met his post-practice monitoring obligations, the appellant testified as
    follows:

Q.      Okay. Was there any sort of routine
    for you at the end of practices that you recall?

A.      Oh, yes.

Q.      And what was that?

A.      Your Honour, I'm a smoker and so at
    the end of practice as soon as I dismissed them I'd go out for a smoke.

[33]

In cross-examination, the Crown asked for
    clarification:

Q.      And you said that your routine was to
    always go out for a cigarette after you dismissed them?

A.      When you smoke for 50 years, yes.

[34]

Following re-examination, the trial judge questioned
    the appellant further about his after-class and after-practice routines. The
    appellant confirmed that after classes he would wait outside the change rooms
    to monitor students. The trial judge then asked the following:

THE COURT: And the same [after-class routine] would
    not have applied after practices after school? You simply dismissed them from
    the gym and it was not your responsibility to monitor change room behaviour
    after practices?

A.      The players that I chose, one of the
    things that I chose them for was their ability to accept responsibility and the
    teams were fairly tightknit friends, friends-wise, and I never had a, I've
    never had a problem with a team in a change room, both in Pinewood, but also in
    away tournaments.

THE COURT: When you said you went for a smoke,
    I assumed you meant you went outside.

A.      Yes.

THE COURT: The children were left unsupervised
    and you were not required to monitor student behavior after practices.

A.      If you can still picture the
    perpendicular hallway, the other exit, or the other end of it which is ten feet
    away from the change rooms was the exit outside and that's where I had my
    smoke. I wasn't more than 15, 20 feet from them. And then I would come in and
    wait until all of them were gone, because they had to get, be picked up and
    what have you. I never left a student in the building by themselves,
    unattended. The kids would wait by the main door and there's a lost and found
    box called the box, the red box, and they would wait there until their rides
    picked them up and I'd be standing there with them, kibitzing and what have
    you, and then they would be gone.

Misapprehension of the Evidence

[35]

At paras. 81 and 82 of his reasons, the trial judge
    noted that the appellants careful contrasting of his after-class and
    after-practice routines was one particular aspect of his testimony that the
    trial judge found troubling:

His [the appellants] evidence was that he
    monitored student behaviour from just outside the change rooms following gym
    classes but exited the school for a cigarette following the after school
    practices. This would eliminate any opportunity to have committed the offences
    as suggested by the complainant.

Upon realizing that this was inconsistent with
    his responsibility to monitor student behaviour in both instances and
    illogical, the defendant corrected himself and testified that he had his
    cigarette at an exit close to the change rooms and then returned and waited
    until all students had left.

[36]

In
    my view, these paragraphs reflect a misapprehension of the appellants evidence
    in two respects.

[37]

First,
    I see nothing inconsistent or illogical about the appellants description about
    how and why he conducted his monitoring responsibilities after a gym class differently
    than after a sports practice.  It stands to reason that a sports team would be
    a more responsible and cohesive unit than a gym class and that the members of a
    sports team would require less careful supervision.  Moreover, no evidence was
    called to challenge the appellants explanation of how the two groups differed
    and why those differences allowed for variation in how the appellant fulfilled
    his monitoring obligations.

[38]

Second,
    and more importantly, I do not agree with the trial judges conclusion that the
    appellant corrected his evidence with respect to this point.  When responding
    to the trial judges questions, the appellant did not alter any previous
    testimony. Rather, he expanded upon his evidence in examination-in-chief and
    under cross-examination, providing more details to explain the differences
    between dismissing students after a gym class and dealing with members of a
    basketball team who are leaving after a practice.

[39]

Having
    concluded that the trial judge misapprehended the appellants monitoring
    evidence, the question is whether the misapprehension is material.

[40]

Not
    every misapprehension of evidence by a trial judge will justify this courts
    intervention. The misapprehension must be material. In
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, Lebel J. discussed the concept of
    materiality and the test for appellate intervention:

For a misapprehension of evidence to be material within the
    meaning of the
Lohrer
test, it must go to a central element of the
    trial judges reasoning on which the conviction is based. As Binnie J.
    correctly stated in
Lohrer
, the standard described by Doherty J.A. in
Morrissey
is a stringent one. In other words, an error in the assessment of the evidence
    will amount to a miscarriage of justice only if striking it from the judgment
    would leave the trial judges reasoning on which the conviction is based on
    unsteady ground. [Citations omitted.]

[41]

In
    my view, it is clear that the trial judge erred by misapprehending the
    appellants evidence  in finding that his testimony about how he monitored
    students was inconsistent and illogical and was later corrected.  And, this
    misapprehension was material as it was one of only two factors the trial judge
    relied upon in rejecting the appellants evidence.

2.

Did the trial judge overly rely on the appellants demeanour in
    assessing his credibility?

[42]

The
    appellant submits that the trial judge also erred by placing too much weight on
    the appellants demeanour in assessing his credibility.

[43]

For
    the reasons that follow, I agree with this submission.

Legal Principles

[44]

This
    court has repeatedly cautioned against giving undue weight to demeanour
    evidence because of its fallibility as a predictor of the accuracy of a
    witnesss testimony:
Law Society of Upper Canada v. Neinstein
, 2010
    ONCA 193, 99 O.R. (3d) 1, at para. 66;
R. v. Rhayel
, 2015 ONCA 377,
    324 C.C.C. (3d) 362. As I indicated in
Rhayel
, at para. 85, [i]t is
    now acknowledged that demeanour is of limited value because it can be affected
    by many factors including the culture of the witness, stereotypical attitudes,
    and the artificiality of and pressures associated with a courtroom.

[45]

Although
    the law is well settled that a trial judge is entitled to consider demeanour in
    assessing the credibility of witnesses, reliance on demeanour must be
    approached cautiously: see
R. v. S. (N.)
, 2012 SCC 72, [2012] 3 S.C.R.
    726, at paras. 18 and 26. Of significance in this case is the further principle
    that a witnesss demeanour cannot become the exclusive determinant of his or
    her credibility or of the reliability of his or her evidence:
R. v. A. (A.)
,
    2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131;
R. v. Norman
(1993),
    16 O.R. (3d) 295 (C.A.), at pp. 313-14.

The Trial Judges Reliance on the Appellants Demeanour

[46]

It
    is of note that the trial judge started his assessment of the appellants
    credibility by expressing his  concern about how the appellant testified:

It was my impression that the [appellant] testified in a
    careful fashion which lacked any spontaneity.  He appeared to me to be a
    witness who was prepared and aware of what his evidence should be to raise a
    reasonable doubt as opposed to a retired teacher wrongfully accused of fondling
    a young male 20 years ago.

[47]

This
    paragraph troubles me for two reasons.

[48]

First,
    the trial judge found the appellants credibility was diminished because he
    testified in a manner that was too careful. The problem I have with this is that
    the trial judge had no reference point.  He did not know how the appellant normally
    expressed himself. Moreover, the appellants careful fashion of testifying may
    relate to such factors as the unfamiliar atmosphere of the courtroom, the
    artificiality of the circumstances under which the appellant was being asked to
    provide information and the pressure he was under given what was at stake.

[49]

Second,
    I am concerned by the trial judges finding that the appellant testified more
    like someone trying to raise a reasonable doubt than someone wrongfully accused
    of sexually assaulting a student. The trial judge provided no insight as to how
    he arrived at that conclusion, particularly how the differences between the two
    types of testimony might manifest themselves. General assertions such as this
    are, with respect, not only unhelpful but also defy appellate review.

[50]

Although
    the trial judge was entitled to consider the appellants demeanour in assessing
    his credibility, he erred by considering factors that had little, if any, evidentiary
    foundation, and by generally over-emphasizing how the appellant appeared in the
    witness box.

[51]

Again,
    the error must be material.  In my view, it is. It must be remembered that the
    trial judges assessment of the appellants demeanour was one of only two
    factors the trial judge relied on in rejecting the appellants evidence.
    Against that background, and given the singular importance of the appellants
    testimony, the errors the trial judge made in factoring the appellants
    demeanour into the trial judges assessment of the appellants credibility were
    material.

3.

Did the trial judge apply a different level of scrutiny to the defence
    evidence compared to that of the Crown?

[52]

The
    appellant submits that the trial judge erred in applying a harsher standard of
    scrutiny to the appellants evidence than to the complainants. The trial judge
    unfairly criticized him for simply denying the allegations against him but
    overlooked or discounted many inconsistencies in the complainants evidence.

[53]

I
    have already concluded that the trial judges rejection of the appellants
    testimony was based on two errors.  In my view, each error was material.  Taken
    together, there is no question in my mind that the verdict cannot stand. It is
    therefore unnecessary for me to consider this third ground of appeal.

DISPOSITION

[54]

For these reasons, I would allow the appeal, set aside the
    conviction and lift the stay.  I would order a new trial on both charges.

Released: January 29, 2016 (EAC)

Gloria
    Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2016 ONCA 31

DATE: 20160113

DOCKET: C54696

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lloyd Ceymour Johnson

Appellant

Heather Pringle, for the appellant

Lorna Bolton, for the respondent

Heard: January 11, 2016

On appeal from the conviction entered on January 27, 2011
    and the sentence imposed on March 8, 2011 by Justice Dougald McDermid of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by McDermid J. of the Superior
    Court of Justice for attempted murder, attempted robbery x2, wear disguise
    while committing an indictable offence, careless use of a firearm x2, point
    firearm, and possession of a firearm x2. He also appeals his sentence of 14
    years incarceration.

[2]

The victim, Salheldin Ali, let his ex-girlfriend, Nadia Ayyad, into his
    apartment to pick up her remaining belongings. Shortly after, there was a knock
    on the door. Mr. Ali opened the door to find Ms. Ayyad and two masked men
    standing in the doorway, one with a gun and the other with a knife. One of the
    men shot Mr. Ali in the chest. Ms. Ayyad and the two men then ran to a car that
    they had parked nearby.

[3]

A week and a half later, the appellant was reported for driving
    erratically and was pulled over by the police. On a search incident to arrest,
    a police officer located the gun that had been used in the shooting. The trial
    judge found that the police breached the appellants ss. 8 and 10(b)
Charter
rights but admitted the gun as evidence under s. 24(2) of the
Charter
.
    The appellant was convicted of nine offences, including attempted murder.

Conviction appeal

[4]

The appellant contends that the trial judge erred with respect to his
    treatment of the
Vetrovec
witness, Nadia Ayyad. According to the
    appellant, the trial judge did not look for independent evidence that
    corroborated Ms. Ayyads testimony as he was required to do before accepting it
    as true.

[5]

We do not accept this submission. This was a judge alone trial. The
    trial judge would be well aware of the law relating to a
Vetrovec
witness, and especially to the dangers associated with relying on their
    testimony. Accordingly, as this court expressed it in
R. v. Snyder
,
    2011 ONCA 445, at para. 24:

There is no need to import the requirement of a
Vetrovec

    caution designed to alert juries to the danger of relying on the evidence of
    certain witnesses into a trial judges reasons for judgment. Judges know the
    risks inherent in relying on witnesses like Burgess and Doucette. It would be
    pure formalism to require judges to articulate those dangers in their reasons.

[6]

The trial judge was aware of, and expressly referred to, some of the
    dangers of accepting Ms. Ayyads testimony on the crucial issue of who shot Mr.
    Ali. He explained why he nevertheless accepted that she was being truthful in
    identifying the appellant as the shooter.

[7]

In any event, there was evidence confirming that the appellant was the
    shooter including, importantly, the fact that the gun used in the shooting was
    found in the rental car being driven by the appellant when he was arrested.

[8]

The appellant further submits that the trial judge, having found that
    the police violated his ss.8 and 10(b)
Charter
rights, erred by
    admitting the evidence relating to the gun under s. 24(2) of the
Charter
.

[9]

We disagree. Although we would not want to be taken as agreeing with the
    trial judges finding that there was a s. 8
Charter
violation in light
    of this courts decisions in the similar cases of
R. v. Morris
, 2013
    ONCA 223 and
R. v. Huang
, 2013 ONCA 430, we can see no error in the
    trial judges s. 24(2) analysis. He applied the three branches of the
Grant
test and reached a reasonable conclusion.

[10]

The
    appellant also tenders fresh evidence  hearsay evidence from a long-time
    friend of the appellant  designed to establish that the other man involved in
    the attack on Mr. Ali, Curtis Elliott, was the shooter. In our view, this is far
    removed from being fresh evidence  Mr. Elliott was available as a witness at
    the appellants trial; the defence, presumably for tactical reasons, chose not
    to call him.

Sentence appeal

[11]

The
    appellant asserts that the 14-year sentence failed to take into account the
    principle of restraint, especially in light of the fact that he had no previous
    criminal record before these offences.

[12]

We
    do not accept this submission. The shooting of Mr. Ali was a cold-blooded
    assault on a man the appellant had never met and, apparently, for no
    discernible reason. Mr. Ali almost died, was in a coma for many days, and
    suffered long-term serious injuries. Even the defence proposed a sentencing
    range of 10-12 years.

Disposition

[13]

The
    conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2016 ONCA 69

DATE: 20160126

DOCKET: C60079

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Fitzroy Johnson

Appellant

Anthony Fitzroy Johnson, appearing by video conference

Yoni Rahamim, appearing as duty counsel

Roger A. Pinnock, for the respondent

Heard: January 14, 2016

On appeal from the sentence imposed on February 18, 2015
    by Justice Joseph R. Henderson of the Superior Court of Justice.

ENDORSEMENT

[1]

Following a trial by judge and jury, the appellant was convicted of
    aggravated assault arising from a close-range shooting incident in which the
    appellant’s co-accused shot a third party using a firearm supplied by the
    appellant.  The appellant, who was 23 years old when sentenced, was
    sentenced to five years’ imprisonment, less two years and eight
    months’ credit for pre-sentence custody, credited on a 1:1 basis.

[2]

The appellant seeks leave to appeal his sentence on the basis
    that the sentencing judge erred by
failing to award enhanced
    credit for his pre-sentence custody at the rate of 1.5:1.

[3]

We agree.

[4]

The appellant was on bail in respect of
    other offences at the time of his arrest for the predicate offence.  However,
    his bail was not revoked. Although the sentencing judge was so advised by the
    Crown, he nevertheless stated in his reasons that when the appellant was
    arrested “his bail was no doubt revoked.” This was an error. He
    went on to state that because the appellant was on bail at the time of the
    offence, it was “unlikely that he would ever have been released on bail
    on this offence pending trial.” He determined that for those reasons, the
    appellant was not entitled to enhanced credit for his pre-sentence custody.

[5]

As the sentencing judge proceeded on
    the basis of a material factual misunderstanding, the deference ordinarily
    afforded on appeal to the sentence imposed is displaced and his decision may be
    set aside.

[6]

Since the decision of the Supreme Court
    of Canada in
R. v. Summers
,
2014
    SCC 26,
[2014] 1 S.C.R. 575, the fact that
    pre-sentence detention has occurred will usually be sufficient “to give
    rise to an inference that the offender has lost eligibility for parole or early
    release, justifying enhanced credit”. However, the Crown may challenge
    this inference by showing that it is unlikely that the accused would receive
    early release or parole in any event, either because of the nature of the offence
    or the offender, or because of the offender’s conduct while in jail (
Summers
, at para. 79). In any of these circumstances, the
    withholding of enhanced credit may be justified.

[7]

In this case, the sentencing judge did
    not address the question of the likelihood that the appellant would obtain
    parole or early release. The appellant served a lengthy period of pre-sentence
    custody. There is no evidence on the record that his behaviour during that time
    or since would deprive him of eligibility for early release or parole. The
    Crown did not challenge the inference that the appellant had lost eligibility
    for parole or early release.

[8]

In our view, the appellant is entitled
    to enhanced credit of 1.5:1 for his pre-sentence custody of two years and eight
    months. Leave to appeal sentence is granted, the appeal is allowed and the duration
    of the sentence reduced accordingly.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“L.B. Roberts J.A.”


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khanna, 2016 ONCA 39

DATE: 20160115

DOCKET: C59357

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anil Khanna

Applicant/Appellant

Kristin Bailey, for the appellant

John McInnes, for the respondent

Heard: January 13, 2016

On appeal from the decision of Justice Antonio Skarica of
    the Superior Court of Justice, sitting as a summary conviction appeal court on August
    22, 2014, dismissing an appeal from the convictions entered on March 11, 2013
    by Justice Ian B. Cowan of the Ontario Court of Justice.

ENDORSEMENT

[1]

The applicant seeks leave to appeal from a decision of a judge of the
    Superior Court of Justice, sitting as a summary conviction appeal court, which
    affirmed the applicants convictions of assault with a weapon and assault. The
    complainant in each case was the applicants daughter.

[2]

The issues upon which the applicant seeks leave to appeal relate to
    rulings made by the trial judge during cross-examination of the complainant
    when trial counsel for the applicant sought to cross-examine her on certain
    internet postings said to be inconsistent with her evidence. To be more
    specific, the applicant contends that the trial judge erred in law in invoking
    the collateral facts rule to curtail cross-examination of the complainant and
    the summary conviction appeal court erred in law in holding that the trial
    judge was not wrong in doing so.

[3]

The applicant advanced this ground of appeal, among several others,
    before the summary conviction appeal court. The appeal judge rejected this
    ground on the basis that the rulings made revealed no error of law, rather
    constituted a reasonable exercise of the trial judges discretion to curtail
    cross-examination on collateral issues not apt to assist in the resolution of
    the issues in dispute.

[4]

It is well-settled that second appeals in summary conviction proceedings
    are exceptional. Leave to appeal is granted sparingly:
R. v. R.(R.)
, 2008
    ONCA 497, at para. 37. In the absence of a single litmus test that identifies
    all cases in which leave to appeal should be granted, two variables assume
    prominence:

i.

the significance of the legal issues raised to the general
    administration of criminal justice; and

ii.

the merits of the proposed grounds of appeal.
R.(R.)
, at para.
    37.

[5]

In the first category, leave to appeal may be granted where the merits
    of the proposed question of law alone are arguable, even if not strong, but the
    proposed question of law has significance to the administration of criminal
    justice beyond its idiosyncratic factual matrix. In the second category, leave
    to appeal may also be granted where there appears to be a clear legal error,
    even if it cannot be said that the error has significance to the administration
    of criminal justice beyond the four corners of the case in which leave to
    appeal is sought:
R.(R.)
, at para. 32. This is especially so where the
    conviction is serious and the applicant faces a significant deprivation of his
    or her liberty:
R.(R.)
, at para. 37.

[6]

In our view, the proposed ground of appeal does not warrant granting
    leave to appeal upon either basis described in
R.(R.)
.

[7]

We begin with a reminder that a second appeal in summary conviction
    proceedings represents the exception, not the rule.

[8]

Second, mere identification of a question of law alone is not sufficient
    to warrant granting leave to appeal.

[9]

Third, we are not persuaded that the trial judge invoked the collateral
    facts rule to curtail cross-examination. After all, the rule does not regulate
    cross-examination of an opposing witness about prior utterances that contradict
    his or her testimony on a collateral matter. The rule governs the ability of
    the cross-examiner to introduce extrinsic evidence in his or her case to
    contradict answers given by an opposing witness on a collateral issue. As we
    read the record, the impugned ruling reflected the exercise of the
    firmly-rooted judicial discretion to confine cross-examination within
    appropriate limits. Even if the trial judge erred in the exercise of that
    discretion, the error is at best an error of mixed fact and law not cognizable
    on an appeal under s. 839(1) of the
Criminal Code
:
Fanjoy v. The
    Queen
, [1985] 2 S.C.R. 233, at pp. 238-239.

[10]

Fourth,
    even if we could tease out of the ruling an error of law, such a decision does
    not transcend the peculiar factual matrix of this case and have significance to
    the administration of criminal justice beyond its boundaries.

[11]

Finally,
    what occurred here was not preclusive of trial counsels right to cross-examine
    the complainant about her motives to fabricate her allegations.
    Cross-examination on the complainants motives was permitted and pursued,
    curtailed only in relation to internet postings and chats of negligible
    assistance in resolving any contested factual issues at trial.

[12]

For
    these reasons, leave to appeal is refused.

J.C. MacPherson J.A.

David Watt J.A.

B.W. Miller J.A.