WARNING

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

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

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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. K.A.D., 2012
    ONCA 672

DATE: 20121003

DOCKET: C52470

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.A.D.

Appellant

Leora Shemesh, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: September 27, 2012

On appeal from the conviction entered on June 28, 2010 by
    Justice S. Chapnik of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant submits that the trial judge erred by misapprehending
    aspects of the evidence and failing to apply the
R. W.(.D.)
test.

[2]

On our view of this record, we cannot agree that the trial judge
    misapprehended any material aspect of the evidence. She conducted a careful and
    detailed review of the evidence and identified specific features that led her
    to conclude that the complainants version was trustworthy and led her to
    reject the evidence of the appellant.

[3]

The Crown concedes that one phrase in the trial judges reasons is
    problematic. She stated at p. 1137 of the transcript:

On a global view of the evidence as a whole, there is an air of
    reality and truthfulness in Ms. R.s evidence. This,
coupled
    with the contradictions in the evidence of the accused
, leads me to
    accept the evidence of the complainant on the major issues in dispute
    [emphasis added]

Viewed in isolation, the underlined phrase might
    suggest that the trial judge used her rejection of the appellants evidence as
    a factor to support her acceptance of the evidence of the complainant. However,
    we agree with the Crown that this problematic phrase must be read in the
    context of this entire judgment.

[4]

The trial judge carefully reviewed the complainants evidence. She
    identified reasons for accepting the evidence including specific features of
    the evidence that corroborated the complainants version. She provided an ample
    explanation for accepting the complainants evidence and we are satisfied that
    her acceptance of the complainants evidence did not rest and did not depend
    upon her rejection of the appellants evidence.

[5]

The trial judge referred to
R. v. W.(D.)
twice in her reasons.
    She specifically concluded at p. 1153 that she did not believe the appellants
    version, that his testimony did not raise a reasonable doubt in her mind and
    that she was satisfied on the evidence before her that the Crown had proven its
    case beyond a reasonable doubt. She also concluded that the Crown had failed to
    prove two counts in the indictment beyond a reasonable doubt and acquitted the
    appellant on those counts. This satisfies us that the trial judge fully
    understood and properly applied
R. v. W.(D.).

[6]

For these reasons, the appeal from conviction is dismissed. The sentence
    appeal has previously been abandoned by the appellant.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

Gloria
    J. Epstein J.A. »


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kaszas, 2012 ONCA
    738

DATE: 20121031

DOCKET: C54838

Goudge, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Kaszas

Appellant

S. Shikhman and S. Menzies, for the appellant

Mabel Lai, for the respondent

Heard: October 26, 2012

On appeal from the conviction entered on July 8, 2011 by
    Justice D. Kent Kirkland of the Ontario Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view it is clear, as the Crown acknowledges that the trial judge
    accepted the appellants evidence about what happened during the ten second
    episode. The trial judge treated the episode as continuous and as he should,
    assessed the manner of driving displayed. The reasons, while not perfect are
    nonetheless sufficient for this court to review the trial judges reasoning
    process, namely that having set out with the deliberate showing off by
    squealing his tires, the appellant left himself too little time to correct his
    accidental hitting the accelerator not the brake.

[2]

This finding was open to him on this record. The trial judge neither
    failed to consider evidence called by the appellant nor offered reasons
    insufficient for appellate review.

[3]

The appeal must be dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacKay, 2012 ONCA
    671

DATE: 20121004

DOCKET: C53979

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald MacKay

Appellant

Alan D. Gold, for the appellant

Bradley Reitz, for the respondent

Heard: September 6, 2012

On appeal from the judgment of Justice Bonnie J. Wein of
    the Superior Court of Justice dated June 13, 2011, with reasons reported at
    2011 ONSC 3318, allowing the appeal from the acquittal entered by Justice Paul
    R. Currie of the Ontario Court of Justice dated March 29, 2010.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The appellant, Donald MacKay, was charged with importing diamonds
    contrary to the
Export and Import of Rough Diamonds Act
, S.C. 2002, c.
    25, as well as acquiring illegally imported goods and smuggling contrary to the
Customs Act
, R.S.C. 1985, c.1 (2
nd
Supp.).

[2]

At trial in the Ontario Court of Justice, and on the hearing of a
Charter
application brought by the accused, Currie J. concluded that the manner in
    which the warranted search was executed violated the appellants s. 8 rights.
    He excluded the evidence obtained from the search pursuant to s. 24(2) of the
Canadian
Charter of Rights and Freedoms
. The Crown was left with
    insufficient evidence to make out its case, and the accused was acquitted of
    all charges.

[3]

The Crown appealed to the summary conviction appeal court. On June 13,
    2011, Wein J. quashed the acquittal and ordered a new trial. She did so on the
    basis that the trial judge erred in concluding that the manner in which the
    search of the accuseds office had been conducted was unreasonable and a breach
    of  s. 8 of the
Charter
. In reaching this decision, the summary
    conviction appeal judge relied almost exclusively on the decision of the
    Supreme Court of Canada in
R. v. Cornell
, 2010 SCC 31, [2010] 2 S.C.R.
    142, which was released after the trial judges
Charter
ruling.

[4]

The appellant applies for leave to appeal the decision of the summary conviction
    appeal judge and, if leave is granted, seeks an order allowing the appeal and
    reinstating the trial judges acquittal.

[5]

The principal issues on the appeal are whether leave to appeal should be
    granted and, if so, whether the summary conviction appeal judge erred in her
    analysis and conclusion on the s. 8
Charter
issue.

B.

facts

(1)

The parties and events

[6]

The investigation leading to the charges began on February 25, 2008,
    when a Canadian Border Services Agency officer opened a package addressed to
    the appellant and discovered four wooden statues containing hidden rough
    diamonds.

[7]

On February 27, 2008, the RCMP installed an alarm and a tracking device
    in the package so that investigators would know when the package was opened. They
    obtained a general warrant authorizing this installation.

[8]

The RCMP decided to make a controlled delivery of the package using an
    undercover officer posing as a courier. Due to perceived security concerns, the
    RCMP decided to employ its Emergency Response Team (ERT). Two RCMP officers
    testified that they had two reasons for their security concerns. First, investigators
    were unable to conclusively identify the appellant before the raid, precluding
    a complete threat assessment. Second, the appellants office was located in a
    high rise commercial building in the hub of Torontos jewellery district. The
    RCMP officers knew that jewellers typically operated from offices equipped with
    controlled access doors, closed circuit security monitoring, and other security
    measures. Because of the potential high value of the diamonds, the officers
    were also concerned about the presence of weapons.

[9]

The ERT was in place when the undercover officer delivered the package
    to the appellants office on February 27, 2008. Approximately ten minutes
    later, the investigators received notification that the package had been
    opened. The undercover officer immediately returned to the office, claiming to
    have forgotten her gloves. She was buzzed through the outer door of the office.

[10]

The
    ERT, with weapons drawn, then breached the inner door and secured the premises.
    The appellant was then arrested by plain clothes officers. The ERT left the
    premises seven minutes after entry.

[11]

The
    plain clothes officers searched the two-room office suite. They seized the
    package that had been delivered by the undercover officer, another similar
    package, and 54 diamonds valued at about $12,900.

(2)

The judicial decisions

(a)

The trial judges ruling

[12]

In
    his reasons, the trial judge addressed both the planning for the execution of
    the warrant and the entry by the ERT.

[13]

With
    respect to the preparation for the search, the trial judge concluded that the
    investigators plan was a reasonable one:

I do not fault the investigating officers or assisting police
    officers in any way, in terms of their preparation of the proposed search of
    the defendants business premises. The officers took all, in my view,
    appropriate and reasonable steps to ensure that the search proposed to be
    conducted would be effective and not dangerous to any persons involved,
    including the officers and the defendant and any other person who might be in
    the vicinity at the time of the search.

To that end, and I accept the evidence of the officers who
    testified in this regard, there were concerns about the potential of weapons on
    the premises of a business such as Mr. MacKays. It is not disputed that the
    building in which Mr. MacKay operated his business was primarily used for the
    jewellery business. It is common knowledge that those businesses involved high
    value items. There are features to the offices in that particular building,
    which one would not find in a normal office building. As I say, the officers
    original concerns were well founded and I do not fault the preparation that
    they took prior to the search being executed.

[14]

The
    trial judge also analyzed the controlled delivery and the entry by ERT
    officers. He noted that when the undercover officer delivered the rough
    diamonds, she had an opportunity to make observations, both of the suite and also
    of the appellant. The trial judge then observed that each ERT member entered
    the suite armed with two loaded firearms, and concluded that such a show of
    significant arms was not necessary:

Given what the undercover officer, who did not testify, as a
    result of agreement between the parties as to what transpired, the undercover
    officer could have simply approached Mr. MacKay, if necessary, with a show of
    force in the background, that is behind her at the doorway, to ensure that
    there was no difficulty with the arrest of Mr. MacKay and the subsequent
    seizure of the items. That was not done.

In my view, the manner in which the warrant was executed was
    unreasonable. I do find a breach of the defendants Section 8 rights in the
    circumstances of this case.

[15]

Having
    found a breach of s. 8, the trial judge proceeded to analyze the admissibility
    of the impugned real evidence. He concluded that the infringement was serious
    because one is left with the sense that where steps are taken to involve a
    specialty task force, such as the one here there is almost an inevitability
    about the sense that they will in fact be deployed. The trial judge also
    concluded that the breach had a great impact on the appellant because of the
    terrifying effect of the ERT entry. Ultimately, he held that the public
    interest would be served best by excluding the evidence. With the essential
    real evidence inadmissible, the Crown elected to call no other evidence and the
    charges were dismissed.

(b)

The summary conviction appeal
    judges decision

[16]

The
    Crown appealed the trial judges order. The summary conviction appeal judge,
    who had the benefit of the Supreme Court of Canadas decision in
Cornell
,
    allowed the appeal and ordered a new trial. The heart of her analysis, at para.
    14, is as follows:

It is true that a trial judges view of the facts must be
    accorded great deference. However, it is argued by the Crown in this case that
    having found that the presence of the ERT was reasonable, the finding that in
    effect a show of force in the background would have been adequate amounted to
    speculative second-guessing in hindsight. The defence argues that whether or
    not the trial judge found that a lesser entry by the ERT was reasonable is
    simply irrelevant, but I do not agree. That finding makes it clear that the
    trial judge was, to a degree, judging dynamic operational decisions made by the
    police with the benefit of hindsight. Had he found that the entire involvement
    of the ERT was unreasonable, the situation might have been different. Having
    held that the threat assessment
was
well founded,
    and the use of ERT
was
reasonable, the
    determination that the precise placement of the officers was excessive amounted
    to an impermissible after-the-fact assessment. [Emphasis in original.]

[17]

Having
    found that the trial judge erred in his s. 8 analysis, the summary conviction
    appeal judge, at para. 17, made only cursory comments with respect to, and reached
    no decision about, s. 24(2):

In these circumstances, it is not strictly speaking necessary
    to determine the issue under s. 24(2). However, I would not have found any
    deficiency in the approach taken in the reasons, succinct though they were.
    Following
Cornell
, the assessment of the seriousness of the breach
    must be considered in light of the public interest in supporting police
    tactical decisions made in good faith in dynamic and difficult situations.

[18]

The
    appellant seeks leave to appeal the summary conviction appeal judges decision.

C.

ISSUES

[19]

The
    issues are:

(1)

Should leave to appeal be granted?

(2)

If the answer to (1) is Yes, did
    the summary conviction appeal judge err by concluding that the trial judge
    erred in his s. 8
Charter
ruling?

(3)

If the answer to (2) is No,
    should the trial judges s. 24(2) decision be confirmed?

D.

ANALYSIS

(1)

Leave to appeal

[20]

The
    leading case on this issue is
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R.
    (3d) 641. The starting point for the analysis, as stated by Doherty J.A. at
    para. 27, is that in the summary conviction appeal context, [a]ccess to this
    court for a second appeal should be limited to those cases in which the
    applicant can demonstrate some exceptional circumstance justifying a further
    appeal. Doherty J.A. went on to say, at para. 37, that leave to appeal should
    be granted in two categories of cases: (1) those with an arguable question of
    law that is significant to the general administration of justice; and (2) those
    where the summary conviction appeal judge seems to have made a clear error of
    law, even if the error may not have significance to the administration of
    justice.

[21]

The
    appellant submits that this case is different from
R.(R.)
, and indeed
    most proposed appeals from decisions by summary conviction appeal judges, in
    that this will not be his second appeal since he was acquitted at trial. I
    agree with this submission; it is, in my view, an important contextual factor
    within which to address the two-part
R.(R.)
test.

[22]

Support
    for this conclusion is found in the recent decision of this court in
R. v.
    OMeara
, 2012 ONCA 420, a drinking and driving case in which the accused
    was convicted at trial. The appeal was allowed and the summary conviction
    appeal judge entered an acquittal. The Crown sought and was granted leave to
    appeal and M. Brown R.S.J. (
ad hoc
) stated, at para. 25: As well, I
    think there is some significance to the fact that while this is the second
    appeal of this matter, it is the Crowns first appeal. The appellant here is
    in the same position as the Crown was in
OMeara
.

[23]

Quite
    apart from this contextual point, I cannot say that the appellant is outside
    the first component of the
R.(R.)
test. In my view, the application of
    the Supreme Court of Canadas decision in
Cornell
to the manner of the
    ERTs entry to the appellants business premises is potentially significant to
    the general administration of justice.

(2)

Section 8
Charter

[24]

A
    key factor in this appeal is that the trial judge made his s. 8
Charter
ruling before the Supreme Court of Canadas decision in
Cornell
,
    whereas the summary conviction appeal judge had the benefit of that decision.

[25]

Cornell
is directly on point in this appeal. It was a case dealing with the search
    powers of a police tactical unit making a hard entry into a suspects
    residence. At paras. 23-25 of his reasons, Cromwell J. set out the parameters
    for judicial review of this category of police search:

First, the decision by the police must be judged by what was or
    should reasonably have been known to them at the time, not in light of how
    things turned out to be.  Just as the Crown cannot rely on after-the-fact
    justifications for the search, the decision about how to conduct it cannot be
    attacked on the basis of circumstances that were not reasonably known to the
    police at the time:
R. v. DeWolfe
, 2007 NSCA 79, 256 N.S.R. (2d)
    221, at para. 46.  Whether there existed reasonable grounds for concern
    about safety or destruction of evidence must not be viewed through the lens
    of hindsight:
Crampton v. Walton
, 2005 ABCA 81, 40 Alta. L.R. (4th)
    28, at para. 45.

[
24
]

Second,
    the police must be allowed a certain amount of latitude in the manner in which
    they decide to enter premises. They cannot be expected to measure in advance
    with nuanced precision the amount of force the situation will require:
R.
    v. Asante-Mensah
, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73;
Crampton
,
    at para. 45.  It is often said of security measures that, if something
    happens, the measures were inadequate but that if nothing happens, they were
    excessive.  These sorts of after-the-fact assessments are unfair and
    inappropriate when applied to situations like this where the officers must
    exercise discretion and judgment in difficult and fluid circumstances.
    The role of the reviewing court in assessing the manner in which a search has
    been conducted is to appropriately balance the rights of suspects with the
    requirements of safe and effective law enforcement, not to become a Monday
    morning quarterback.

[
25
]

Third,
    the trial judges assessment of the evidence and findings of fact must be
    accorded substantial deference on appellate review.

[26]

The
    appellant does not challenge the initial police decision to employ the ERT in
    the raid on his office. However, the appellant asserts that the police had a
    duty to reassess the situation after the undercover officer entered the
    premises the first time. Such a reassessment should have led to a decision to
    downgrade the hard entry nature of the raid to the point that the ERT would
    play a back-up role to regular police officers.

[27]

This
    was essentially the position adopted by the trial judge. He said:

[T]he undercover officer could have simply approached Mr.
    MacKay, if necessary, with a show of force in the background, that is behind
    her at the doorway, to ensure that there was no difficulty with the arrest of
    Mr. MacKay and the subsequent seizure of the items. That was not done.

[28]

With
    respect, this description of what the police might have done in this case falls
    afoul of the first two propositions in the passage from
Cornell
, above
. According to the testimony of
    the lead officer in the investigation, even after the undercover officer had
    been inside the appellants office, information critical to the imminent raid
    remained unknown, including: the size of the office, the number of rooms, the
    number of people inside, and whether anyone inside had access to weapons.

[29]

Of
    these, the most important factor was the presence of weapons. On this issue,
    the trial judge said: I accept the evidence of the officers who testified in
    this regard, there were concerns about the potential of weapons on the premises
    of a business such as Mr. MacKays. There was nothing in the undercover
    officers brief visit to the premises to remove this extremely important
    concern.

[30]

In
    conclusion,
Cornell
says explicitly, at para. 24, that the police
    must be allowed a certain amount of latitude
in the manner
in which
    they decide to enter premises. (emphasis added)  Given the many unknowns,
    particularly the possibility of weapons inside the premises, there is no basis for
    concluding that the ERT hard entry in this case  brief and focussed  amounted
    to an unreasonable search. I agree with the summary conviction appeal judge
    that [n]o doubt, had the trial judge had the benefit of the guidance of the
Cornell
decision, a different conclusion on the s. 8 decision would have been arrived
    at on the facts as found by the trial judge.

(3)

Section 24(2)
Charter

[31]

In
    light of my conclusion in the previous section, the issue of the potential
    exclusion of evidence does not arise.

E.

disposition

[32]

I
    would grant leave to appeal, dismiss the appeal, and confirm the decision of
    the summary conviction appeal court judge ordering a new trial.

Released: October 4, 2012 (J.C.M.)

J.C. MacPherson J.A.

I agree. Robert P. Armstrong
    J.A.

I agree. David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Manahan, 2012 ONCA 734

DATE:  20121029

DOCKET: C52652

Doherty, Epstein JJ.A. and Cavarzan J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Manahan

Applicant (Appellant)

Paul Burstein, for the applicant (appellant)

Benita Wassenaar, for the respondent

Heard:  October 25, 2012

On appeal from the conviction entered on November 24,
    2009 and the sentence imposed on August 13, 2010 by Justice B. E. Pugsley of
    the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The
actus reus
of the offence is conceded on appeal. On the
    facts as found by the trial judge, especially his finding as to the speed of
    the appellants vehicle (at least 136 k.p.h. in a 60 k.p.h. zone), there can be
    no doubt that the appellant was properly convicted.

[2]

The trial judge did not have the benefit of
R. v. Roy
, 2012 SCC
    26.  Counsel argues that the trial judge failed to pose the two questions
    outlined at para. 36 of
Roy
and said to be a useful approach to the
mens
    rea
questions.

[3]

In our view, posing those questions in the context of the trial judges
    findings of fact admits of no answer other than that a reasonable person would
    have foreseen the risk inherent in the manner in which the vehicle was being
    driven and taken steps to avoid that risk, and that the accuseds failure to
    foresee the risk and take steps to avoid it was a marked departure from the
    standard of care expected of a reasonable person in the appellants
    circumstances.  In that regard, we note that the trial judge did not find that
    the appellant believed he was going 80-90 k.p.h., but rather found he did not
    know how fast he was travelling when the vehicle crested the hill and went out
    of control.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. McLellan, 2012
    ONCA 717

DATE: 20121026

DOCKET: C51797 & C54990

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Myles McLellan

Appellant

Myles McLellan, acting in person on the conviction
    appeal

Patrice F. Band and Shannon S.W. OConnor, for the
    appellant on the sentence appeal

Scott Latimer, for the respondent

Heard: August 17, 2012

On appeal from the conviction entered by Justice Anne
    Mullins of the Superior Court of Justice, sitting without a jury, on October 9,
    2009, and from the sentence imposed on March 10, 2010.

Tulloch
    J.A.:

Overview

[1]

The appellant appeals both his conviction and sentence. However, his conviction
    appeal is limited to the December 4, 2008 decision of Ferguson J., dismissing
    his s. 11(b) application for a stay of proceedings due to unreasonable delay:
R.
    v. McLellan,
2009 CanLII 30968 (Ont. S.C.).

[2]

At issue for the conviction appeal is whether the application judge
    erred in holding that his right to be tried within a reasonable time had not
    been violated.

[3]

The appellant also seeks leave to appeal his sentence on the basis that
    the trial judge erred in failing to impose a conditional sentence because she
    underemphasized certain mitigating factors, overemphasized deterrence  and
    denunciation, and failed to consider the principle of restraint in the
    circumstances of a first time offender.  The appellant also disputes the trial judge's
    finding that he lacked remorse and insight into the harm caused by his crimes.

[4]

In addition, the appellant has filed a fresh evidence application,
    adducing fresh evidence with respect to the issues of restitution, his
    continued education, and his wifes health issues and her dependency on him for
    assistance.

[5]

For the reasons that follow, I would dismiss the conviction appeal. I
    would allow the appellants application to admit fresh evidence and based on
    that evidence, I would grant leave to appeal the appellant's sentence, and
    would allow the appeal against sentence to the extent that I would vary the
    sentence of 22 months incarceration, less time served of 8 months, to a global
    sentence of 16 months incarceration less time served of 8 months.

Factual Background

[6]

On October 9, 2009, the appellant, Mr. Myles McLellan, was convicted of
    fraud over $5,000.00, forgery, and two counts of uttering forged documents. The
    convictions arose from conduct that took place between January 1st and May 31st,
    2006.

[7]

Mr. McLellan was a practising lawyer who had been called to the bar in
    1980. He practiced real estate, wills and estate law in Simcoe County, and had
    offices in Barrie, Innisfil and for a time, in Angus. He also engaged in real
    estate development.

[8]

As of January 2006, Mr. McLellan was experiencing financial
    difficulties. The properties that he owned, including his home, his cottage, a
    residential property he inherited from his father, his business premises, as
    well as his investment retirement home, were all subject to multiple collateral
    mortgages and principal debts. The retirement home did not have enough money to
    meet its financial obligations and had been in receivership since July 2005. In
    early 2006, he was actively seeking refinancing in order to regain control of this
    property.

[9]

During this period, Mr. McLellan contacted Mr. Alan Feldman, a mortgage
    consultant he knew in Toronto, and indicated that he had an employee, Ms. Janet
    Laurin, who wished to place a first mortgage on her property.  He advised that
    Ms. Laurin needed the money quickly and that he would personally guarantee the
    debt.  In reality, however, Ms. Laurin already had a first mortgage registered
    on her property, which Mr. McLellan had assisted her in obtaining in 1993.  She
    had also refused Mr. McLellans previous request that she obtain a second
    mortgage in order to assist him with his ongoing business dealings.

[10]

In
    February 2006, Mr. Feldman introduced Mr. McLellan to Mr. Sam Klaiman, who was
    the owner of Homark Real Estate Ltd. in Toronto. Mr. Klaiman was eighty-five
    years old and semi-retired. His company invested by providing loans that were
    secured by mortgages on real property. Based on Mr. McLellans representations,
    Homark agreed to forward $150,400 in return for a first mortgage on Ms.
    Laurins property. On February 23, 2006, that amount was deposited in Mr.
    McLellans trust account, where it was quickly dispersed for his own financial
    purposes.

[11]

In
    the weeks that followed, Mr. Klaiman and his lawyer made several requests for
    documentation that demonstrated Homarks mortgage on Ms. Laurins property.  After
    a protracted period of time, Mr. McLellan eventually provided a charge/mortgage
    document that purported to show that a mortgage had been registered in Homarks
    name on Ms. Laurins property. However, when Mr. Klaimans lawyer investigated
    the charge document, he determined that it was a forgery. Steps had been taken
    to alter a legitimate charge/mortgage document, referable to one of Mr.
    McLellans other clients, to make it appear that Homark Real Estate possessed a
    valid mortgage against Ms. Laurin's property.  The police were subsequently
    notified and the he was arrested for fraud.

[12]

After
    his arrest, Mr. McLellan took steps to repay what he had stolen. He provided
    $50,000 in cash to Homark in May 2006.  Prior to the sentencing hearing, a
    civil settlement had been reached regarding repayment of the outstanding
    amount.

[13]

The
    matter proceeded to trial following a preliminary hearing in the Ontario Court
    of Justice, but after the first trial date had been set, Mr. McLellan brought a
    s. 11(b) motion.

[14]

The
    application judge dismissed the s. 11(b) application, finding that the total
    amount of time the matter took to proceed to trial of 27 ½ months was not
    unreasonable in the circumstances. The matter eventually proceeded to trial,
    however Mr. McLellan fired his counsel and was granted a mistrial.  A
    subsequent trial date was set, following which Mr. McLellan was found guilty
    and convicted on four counts.  He received a global sentence of 22 months
    incarceration, less eight months credit for pre-trial custody and time spent
    on stringent bail conditions.

A.

Appeal from dismissal of
s
. 11(
b
)
    application

[15]

The
    appellant submits that the application judge did not undertake a balanced
    examination of the entire time period at issue, and instead applied a technical
    and narrow analysis of discrete periods of time.  He raises three specific
    grounds of appeal: that the application judge erred in attributing 9 ½ months
    of time in the Ontario Court of Justice to inherent delay; that she erred in
    holding the defence responsible for the 3 ½ months following his pre-trial
    appearance before the Senior Regional Judge to address his delay concerns; and
    that she erred in her assessment of prejudice.

[16]

I
    disagree with the submissions of the appellant.  The application judge was
    correct in her characterization of the delay and I agree with her decision to
    dismiss the s. 11(b) application. In my view, there is no merit to this ground
    of appeal. The application judge was very thorough in her assessment of the
    various time periods in the proceedings of the case, and she applied the
    factors set out in
R. v. Morin,
[1992] 1 S.C.R. 771 correctly.  I
    agree with her characterization of the time periods as well as her broader
    analysis that led to her ultimate dismissal of the delay application.  Further,
    her finding that any prejudice suffered by the appellant was as a result of
    being charged and not due to subsequent delay was reasonable.

[17]

The
    applicable systemic delay was well below the guidelines set out by the Supreme
    Court in
Morin
.  Therefore, I do not find the statistical data
    submitted by the appellant on appeal to be relevant to the disposition of the
    appeal.  It concerns the average length of cases in regions across Canada and
    institutional efforts to reduce delays.  The analysis of the specific reasons
    for delay in this case has shown that the time frame was reasonable in the circumstances.
    A broader review of delay in Ontario courts is therefore not necessary in this
    case.

[18]

Accordingly,
    the conviction appeal is dismissed.

B.

Sentence Appeal

(1)

Positions of the
    Parties

[19]

The
    trial judge sentenced the appellant to 22 months in jail, less the eight months
    he was granted for pre-trial custody and bail conditions. The appellant submits
    that he should have received a conditional sentence for a shorter time period
    and submits that the trial judges failure to impose such a disposition amounts
    to the commission of multiple of errors in principle.  He submits that the
    trial judge committed the following errors: underemphasizing the principle of
    restraint in sentencing a first time offender; overemphasizing the principles
    of general deterrence and denunciation and as a result disregarding important
    mitigating factors; overemphasizing the necessity of imposing a jail sentence
    to achieve general deterrence; and characterizing what she found to be a lack
    of remorse as an aggravating factor.  Finally, he submits that the 22 month
    sentence of incarceration was demonstrably unfit in the circumstances.

(2)

Analysis

[20]

I
    disagree that the trial judge committed the errors in principle complained of
    by the appellant within the context of this case.

[21]

I
    am satisfied that the trial judge considered all the relevant factors
    applicable to the appellants particular circumstances and the nature of the offences
    for which he was being sentenced.

(a)

Mitigating and
    Aggravating Factors

[22]

The
    trial judge was thoroughly cognizant of the particular circumstances and
    background of the appellant.

[23]

She
    considered the appellants age and education, his status as a father and
    partner, and his lack of criminal record.  She reviewed the testimonials
    regarding his trustworthiness and reliability, as well as his community
    involvement and his prompt efforts to make restitution.  She considered that
    there had been one primary victim within a relatively brief course of
    misconduct, in circumstances of extraordinary financial pressures, which did
    not amount to a systemic fraudulent scheme against the vulnerable.

[24]

Finally,
    she took into account his physical health challenges of cancer and a severe
    bladder issue, as well as his longstanding mood disorder, which caused periods
    of depression and difficulty in making clear business judgments.  She
    acknowledged that these mental health challenges may have impaired his
    judgment.

[25]

However,
    the trial judge also noted the seriousness of the offences for which the
    appellant was being sentenced. She found that they constituted a serious breach
    of trust, committed by a practicing lawyer who deceived an 85 year-old man to
    obtain a large sum of monies from his company and in so doing, forged and
    uttered documents and made false statements in writing in order to facilitate
    the fraud.

[26]

The
    trial judge correctly observed that crimes such as the one for which the
    appellant was being sentenced impact the community in a profound and
    significant way. Quoting from the decision of Taliano J. in
R. v. Gross
, [2000] O.J. No. 3479 (S.C.),
at paras.
    16 to 18, she noted that public confidence in the reliability of financial
    transactions conducted by lawyers is eroded where, as here, a lawyer breaches
    the trust he owes to his clients and to his community.

[27]

This
    court and other Canadian appellate courts have dealt with the significance and
    impact of lawyers who commit fraudulent breaches of trust within the context of
    their professional capacities. The primary sentencing principle at play in
    these types of cases is general deterrence and denunciation, or the repudiation
    of the conduct for which the offender was found guilty. The secondary
    considerations are specific deterrence, rehabilitation and any mitigating
    circumstances such as a plea of guilty or cooperation with the authorities:
R.
    v. Scherer
(1984), 16 C.C.C. (3d) 30
(Ont. C.A.), at p. 34.

[28]

Doherty
    J.A. outlined why an offenders status as a lawyer is a significant aggravating
    factor in
R. v. Rosenfeld,
2009
    ONCA 307, 94 O.R. (3d) 641,
at para. 40:

[A]part from the specifics of the offences committed by the
    appellant, those privileged to practise law take on a public trust in exchange
    for that privilege and the many advantages that come with it. Lawyers are duty
    bound to protect the administration of justice and enhance its reputation
    within their community. Criminal activity by lawyers in the course of
    performing functions associated with the practice of law in its broadest sense,
    has exactly the opposite effect.  Lawyers like the appellant who choose to use
    their skills and abuse the privileges attached to service in the law not only
    discredit the vast majority of the profession, but also feed public cynicism of
    the profession. In the long run, that cynicism must undermine public confidence
    in the justice system: see
R. v. Oliver
, [1977] 5 W.W.R. 344
    (B.C.C.A.).

[29]

Therefore,
    I agree with the trial judge that, notwithstanding the appellants personal challenges
    and triumphs, and despite his reputation in his community and his past good
    works, the fact that he is a lawyer who has used his professional capacity to
    facilitate the crimes for which he has been convicted is a significant aggravating
    factor.

(b)

Conditional Sentence

[30]

The
    trial judge noted that as a matter of principle a breach of trust by a
    professional does not preclude the granting of a conditional sentence, even in
    circumstances of extensive pre-planned conduct over a lengthy period of time
    with devastating consequences to vulnerable victims. She then considered the
    mitigating factors of the appellants case, as noted above, and went on to
    consider the aggravating factors, the most significant of which was the
    appellants breach of trust as a lawyer.

[31]

The
    trial judge further stated that she found the appellant to lack remorse and
    insight, as illustrated by the appellants attempt to blame Ms. Laurin for his
    offence.  She considered these to be aggravating factors that militated against
    a conditional sentence.

[32]

Lack
    of remorse is not ordinarily an aggravating factor in sentencing, and courts
    ought to be very careful in treating it as such: see
R. v. Giroux
(2006),
    207 C.C.C. (3d) 512 (Ont. C.A.), at para.
68;
R. v.
    Valentini
(1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at para.
82.  In
    my view, a fair reading of the trial judges comments indicates that she was
    solely addressing the issue of whether a conditional sentence was appropriate,
    and not the quantum of the sentence.

[33]

Lack
    of remorse and insight are factors that the trial judge was entitled to take
    into account in considering the appropriateness of a conditional sentence: see
R.
    v. Nguyen
, [2006] O.J. No. 796 (C.A.);
R. v. T.R.J.
, [2004] O.J.
    No. 1286 (C.A.).  The presence or absence of remorse and an assessment of
    whether an individual displays insight into his or her offending conduct are
    relevant considerations for a trial judge in deciding whether a conditional
    sentence will be consistent with the purposes and principles of sentencing.

[34]

Section
    718(f) of the
Criminal Code
,
    R.S.C. 1985, c. C-46
states that a valid sentencing objective is to
    promote a sense of responsibility in offenders, and acknowledgement of the
    harm done to victims and to the community.

[35]

The
    trial judge ultimately decided that imposing a conditional sentence was
    inappropriate in the circumstances of this case. She gave full consideration to
    the relevant factors as well as the leading authorities from this court. In so
    doing, she did not err in principle in imposing a custodial sentence:
R. v.
    Bellefeuille
, [2003] O.J. No. 4259 (C.A.);
R. v. St. Fort
, [2003]
    O.J. No. 5154 (C.A.).

[36]

Further,
    I do not find that the trial judge erred in finding a lack of remorse on behalf
    of the appellant.  The trial judges finding must be understood within the
    context of her perception of the appellants lack of insight into his conduct.
    In considering the appropriateness of a conditional sentence, the trial judge
    had to consider the totality of the evidence before her. This included the
    evidence of the appellant at trial, where he blamed his fraudulent conduct on
    his legal assistant, Ms. Laurin, as well as the evidence that the appellant
    unsuccessfully attempted to enlist Ms. Laurin into his fraudulent scheme.

[37]

The
    primary sentencing principles of general deterrence, denunciation, and the
    public perception of justice are most appropriately addressed in this case by a
    sentence of incarceration. In
R. v. Sahaidak
, [1990] O.J. No. 2792
    (H.C.), Doherty J., as he then was, imposed a three-year custodial sentence on
    a lawyer convicted of fraud for his participation in a fraudulent mortgage
    scheme.  Doherty J.s comments, at para. 11, apply to the facts of the present case:

If my job was to sentence Mr. Sahaidak, the man, and if my
    sentence did not have to concern itself with the details of the crimes, and if
    I didnt have to be concerned for the effect of my sentence on others and the
    effect of my sentence on the public perception of justice, I would impose a
    most lenient sentence in recognition of Mr. Sahaidaks positive antecedents,
    his contribution to the community, and perhaps most importantly to save his
    family from further pain. My concerns and responsibilities on sentencing,
    however, go beyond the antecedents of Mr. Sahaidak and considerations of what
    sentence is in his best interest and the best interest of his family.

(c)

Fresh Evidence

[38]

Finally,
    the appellant applies to introduce fresh evidence on appeal in the following
    three areas: i) his pursuit of higher education; ii) his caregiver status; and
    iii) his efforts at restitution. The three aspects of fresh evidence are
    summarized as follows.

[39]

First,
    the appellant returned to law school after his licence to practice law was
    revoked.  He has now completed an LL.M.  He has also completed the first year
    of a Ph.D. program in criminology at the University of Ottawa, and has been
    accepted into a double Ph.D. program which includes a period of study in
    Scotland.  The appellant submits that these efforts at self-rehabilitation
    should be considered as a mitigating factor.

[40]

Second,
    the appellants wife explained in her affidavit that she depends on the
    appellant as her primary caregiver.  She was forced to suspend her work as a
    registered nurse due to a series of health concerns, including back injury,
    fibromyalgia, a stroke and depression. She is currently not receiving unemployment
    benefits.

[41]

Third,
    while the trial judge noted that the appellant had made $50,000 in restitution,
    she went on to state that it was unlikely given the multilayered securities on
    his properties that the appellant would ever repay the full amount of the
    fraud. The fresh evidence makes it clear that the second mortgage in favour of
    the victim was not subject to other multilayered security interests. In the
    result, there was a reasonable prospect that full restitution would be made to
    the victim.  This was an important mitigating circumstance. I am satisfied
    that had the trial judge been aware of the true state of affairs respecting
    restitution, she would have imposed a lower custodial sentence.

[42]

However,
    the trial judge did not have before her evidence of the terms of the civil
    settlement between the appellant and Mr. Klaiman, nor did she have evidence of the
    title register for the property upon which the security was registered. The fresh
    evidence introduced on appeal shows that the appellant agreed to secure the
    outstanding $100,400 in the form of a second mortgage in favour of Mr. Klaiman,
    which is registered against the appellants Innisfil property. This evidence
    further shows that all but one of the other mortgages on the property have been
    discharged.

[43]

I am not satisfied that the evidence of the
    appellants pursuit of higher education or his role in providing for his wife
    justifies interfering with the sentence imposed by the trial judge. The appellant
    was already a highly educated individual prior to committing the offences in
    question.  The evidence concerning his role in providing for his wife does not
    justify a reduction in sentence, particularly considering that his capacity to
    support his wife is limited by his current status as a student and by his plans
    to study abroad.

[44]

However, I am satisfied that the new evidence
    regarding his efforts at restitution would have resulted in a reduced sentence
    had the trial judge been aware of this evidence.
An offenders ability
    and willingness to pay restitution is an important consideration in the
    sentencing o
f fraud and related offences: see
R. v.
    Smolyar,
[2003] O.J. No. 3542;
R. v. Chamczuk,
2010 ABCA 380, 499
    A.R. 212;
R. v. Quinlan
(1999), 173 Nfld. & PE.I.R. 1 (Nfld.
    C.A.). The trial judge credited the appellant for his prompt efforts at making
    restitution. I am satisfied that if the trial judge had before her the fresh evidence
    demonstrating that the appellant placed a second mortgage on his property in
    favour of Mr. Klaimans company, which interest was not subject to other multilayered
    security interests, she would have imposed a lower custodial sentence.

[45]

The
    fresh evidence of the appellants laudable efforts at providing restitution to
    the victim lead me to conclude that the appropriate length of sentence is 16
    months incarceration, less time served for pre-trial custody.

(3)

Conclusion

[46]

Accordingly,
    leave to appeal the sentence is granted. The sentence appeal is allowed and the
    sentence is varied to 16 months incarceration, less time served of 8 months
    for pre-trial custody.

Released:

MR                                                  M.
    Tulloch J.A.

OCT 26 2012                                   I
    agree M. Rosenberg J.A.

I
    agree R.A. Blair J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. P.J.B., 2012
    ONCA 730

DATE: 20121030

DOCKET: C52610

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.J.B.

Appellant

Jill D. Makepeace, for the appellant

Gavin MacDonald, for the respondent

Heard: April 3, 2012

On appeal from the conviction entered by Justice Robert
    A. Riopelle of the Superior Court of Justice, sitting with a jury, on May 14,
    2010, and from the sentence imposed on August 23, 2010.

Watt J.A.:

[1]

A jury was asked to decide whether the way in which a stepfather kissed
    his teenaged stepdaughter was a crime. The jury decided that, sometimes, the
    kissing was a sexual assault, but at other times it was not.

[2]

P.J.B. (the appellant) says that the jurys verdict was flawed because
    the trial judge failed to instruct the jury properly on the central issues in
    the case, especially those raised on the appellants behalf at trial.

[3]

These reasons record my agreement with the appellant and explain why I
    would order a new trial.

THE BACKGROUND FACTS

[4]

A brief overview of the circumstances underlying the complainants
    allegations and a description of the manner in which the case proceeded at
    trial provides a sufficient background in which to assess the appellants
    claims of error.

The Setting and Early Relationship

[5]

The appellant met the complainants mother on an online dating service
    in February of 2004.  In March, the parties met in person. About two months
    later the appellant moved into the house where the complainant, her mother, and
    the complainants younger sister lived.

[6]

The complainant and her younger sister divided their time equally between
    their biological parents under a joint custody arrangement.

[7]

In the beginning, the appellants relationship with both sisters was
    good.  But as the appellant began to exercise greater influence over the
    children, including making decisions about their behaviour and disciplining
    them, the relationship began to deteriorate.

[8]

A reversal in the fragile relationship between the appellant and the
    complainant began when the appellant substituted positive attention for the
    negative treatment he had accorded the complainant earlier. In the result, the
    appellant and the complainant became very close.

[9]

The complainant began to interpose herself between her mother and the
    appellant, sitting between the couple on the couch and doing things for the
    appellant normally done by her mother. The appellant and the complainants
    mother told the children that they planned to marry on June 28, 2008.

The Kissing Incidents

[10]

In
    late April or early May 2008, the complainant went on a three-day school trip.
    When she returned, she told her mother and the appellant that she had kissed a
    boy on the trip. At first, everybody was happy. Very shortly, however, the
    appellant became concerned about the relationship between the complainant and
    the boy. He asked her to end the relationship and remove him from her Facebook
    friend list.

[11]

The
    appellant began to complain about the complainants kisses
[1]
soon after she returned from her school trip. The kisses were harder than
    they had been previously. The appellant began to stick his tongue in her mouth
    when they kissed, but he did not move it around. The complainant told the
    appellant that the tongue in mouth kissing grossed her out and made her
    feel crazy uncomfortable.

[12]

The
    complainant testified that the appellant told her that he knew she didnt like
    the tongue in mouth kisses. He explained that his purpose was to let the
    complainant know when she was kissing him wrong.

[13]

The
    appellant gave evidence that the tongue in mouth kissing didnt happen at
    all.

The Apology

[14]

Shortly
    after the school trip, the complainants mother confronted the appellant with
    what she regarded as excessive text messaging between the appellant and the
    complainant. Some messages were sent when the complainant was at school, others
    while the appellant was supposed to be sleeping. The appellant denied any
    impropriety in the messages.

[15]

Shortly
    after the confrontation, the appellant wrote a letter of apology to each of his
    stepdaughters. He explained that he wrote the letters because during the
    previous eight to ten months he had been short with them. He had not paid as
    much attention to them as he had previously. The precise terms of the letters
    were never authoritatively established because the letters were never found.

The Disclosure

[16]

At
    about 6:45 a.m. on May 21, 2008, the complainants mother saw the appellant and
    complainant lying on a living room loveseat together. Both were fully clothed. The
    complainant was on top of the appellant who had his arms around her.

[17]

The
    complainant told her mother that it was not the first time that she and the
    appellant had been on the couch together. Both denied any impropriety.

[18]

The
    following day, the complainants mother checked the telephone bill and found
    more than 600 text messages on the complainants telephone, including 60
    messages the day she left on her school trip and another 50 the day she
    returned. She confronted the appellant about the messages, as she had asked him
    not to text the complainant with such frequency.

[19]

During
    the following weekend, the complainants mother and the appellant continued to
    speak about the relationship between the appellant and complainant. He told her
    that he was afraid that the complainant was trying to break them up. He wanted
    to cancel the complainants impending overseas school trip. The complainants
    mother concluded that the appellant was encouraging and participating in the
    concerning behaviour she had noticed in his relationship with the complainant.
    Shortly thereafter, the police and Childrens Aid Society (CAS) became involved
    and the appellant was advised to leave the home.

[20]

The
    complainant acknowledged that she was very upset about the appellants threat
    to cancel her overseas trip. She did not disclose her allegations to her mother
    and police until she learned of the appellants threat, but denied the threat
    was the reason for her complaint.

The Indictment

[21]

The
    indictment on which the appellant was arraigned contained six counts: three
    alleging sexual assault and three charging sexual exploitation. At the end of
    the evidence and prior to closing addresses, Crown counsel at trial (who was
    not counsel on appeal) stayed the sexual exploitation counts because they were
    duplicative of the counts of sexual assault.

[22]

The
    jury deliberations related only to the three nearly identically worded counts
    of sexual assault. Two counts (count 1 and 3) alleged the same period of time
    and count 4 alleged a shorter but overlapping period.  All counts alleged the
    same place.  Each count was unparticularized containing no allegations about
    the sexual conduct that constituted its subject matter. Counsel for the
    appellant at trial (who was also not counsel on appeal) did not apply for
    particulars further describing the means by which each offence was alleged to
    have been committed.

The Trial Proceedings

[23]

The
    trial proceedings were brief. The fifth and final day of trial included the
    closing addresses of counsel, the judges charge, the jurys deliberations and
    the return of the jurys verdict.

[24]

After
    the judge had concluded his charge, counsel reminded him of their agreement of
    the previous day about the conduct alleged to form the subject matter of each
    count. Count 1 referred to the dramatic kissing. Count 3 involved the tongue
    in mouth kissing incident. Count 4 referred to the belt incident. The
    appellant was found guilty only of the tongue in mouth kissing count.

the grounds of appeal

[25]

The
    grounds of appeal advanced in oral argument recite several deficiencies in the
    final instructions of the trial judge. I would paraphrase the claims of error
    as failures of the trial judge to:

i.        review
    and relate the evidence to the issues raised at trial,         especially those
    issues advanced in the appellants defence;

ii.       fully
    instruct the jury on the position of the defence;

iii.      fairly
    review the evidence relevant to the jurys assessment       of the credibility
    of the Crowns witnesses and the reliability of         their evidence; and

iv.      provide
    limiting instructions on evidence of post-offence   conduct attributed to the
    appellant.

[26]

In
    oral argument, Ms. Makepeace did not pursue the complaint included in her
    factum that the trial judge unfairly interfered during trial counsels
    cross-examination of witnesses called by the Crown.

[27]

For
    ease of discussion, I have combined grounds i  iii into a single complaint of
    inadequate instruction on the central issues raised at trial.

Ground #1: Instructions on the Central Issues

[28]

Consideration
    of this compendious ground of appeal requires no further references to the
    evidence adduced at trial. A helpful place to begin an assessment of the
    adequacy of final instructions is with a reference to the positions advanced by
    counsel at trial, followed by an overview of the instructions themselves.

The Positions of the Parties at Trial

[29]

Counsel
    for the Crown at trial contended that each count of sexual assault was proven
    beyond a reasonable doubt on the evidence of the complainant.  Crown counsel
    advanced the complainant as a credible witness who gave reliable testimony. On
    the other hand, the appellant, a master manipulator, was unworthy of belief.

[30]

Counsel
    for the appellant at trial submitted that the offences alleged by the
    complainant never occurred or, where something of the nature alleged by the
    complainant had occurred, what happened was not a sexual assault. Counsel urged
    the jury to be especially cautious about relying on any evidence given by the
    complainant or her mother because they had colluded in their claims against the
    appellant.

The Charge to the Jury

[31]

At
    the outset of his final instructions, the trial judge explained to the jury
    that, contrary to his usual practice, he would not be providing an extensive
    review of the evidence introduced at trial. He told the jury that the evidence
    had been brief, lasting only three days, that counsel had reviewed it
    immediately before his charge, and that jurors would be provided with a list of
    the witnesses who testified and a verdict sheet the use of which he would later
    explain.

[32]

The
    trial judge instructed the jury that each count was a separate allegation that
    required a separate verdict. He told them that the presumption of innocence
    applied to each count and the verdicts on the counts need not be the same.

[33]

The
    trial judge described the position of the appellant at various places in his
    final instructions. Several paragraphs are representative of these instructions:

i.

The defences of course are, as he has testified, that the circumstances
    are not criminal. They might have been inappropriate but they are not criminal.
    They were not done in a sexual context. One of them is having to do with the
    pubic hair.  The defence is it did not happen that way at all. It was just the
    grabbing of the belt, but if it did happen that way, something like that
    happened it was accidental and that is not criminal.

ii.

It is not about whether you like him or you do approve of the way he
    disciplines or does not discipline. It is about whether or not these events
    actually occurred the way we are being told that they occurred.

iii.

As I said to you earlier, Mr. [B.] testified and he denied of course
    that there was any sexual context to these activities that we know were going
    on. That is for you to assess. And he maintained that the third one or the one
    with the pubic hair was an accident and that is for you to assess.  So that was
    his testimony.

The Arguments on Appeal

[34]

For
    the appellant, Ms. Makepeace says that the trial judge erred in failing to
    relate the evidence and the position of the appellant to the essential elements
    of the offences alleged in each count. She submits that the trial judge
    focussed on the requirement that force be applied intentionally to constitute
    an assault, rather than on the issue of whether the conduct said to constitute
    the sexual assault ever occurred. The impression left by the omission was that
    the conduct alleged had in fact occurred and the only issue for the jury to resolve
    was whether the conduct amounted to a sexual assault.

[35]

Ms.
    Makepeace contends that the trial judge failed to provide the jury with any
    real guidance on how to assess the credibility of the complainant and the
    reliability of her evidence. The instructions about the evidentiary value of
    prior statements were at best inadequate, at worst simply wrong and the trial
    judge gave the jury no assistance on the factors relevant for their assessment
    of the complainants evidence.

[36]

Further,
    Ms. Makepeace urges, the trial judge failed to isolate and address each count
    in the indictment. This failure assumes even greater importance in this case
    because the appellants position was not the same in each count. Nor did the
    trial judge relate the essential features of the evidence to the issue of
    whether the conduct alleged occurred in circumstances of a sexual nature.

[37]

For
    the respondent, Mr. MacDonald reminds us that the standard we are to apply in
    assessing the adequacy of jury instructions is not a standard of perfection. We
    are, he says, to take a functional approach and to determine whether, in the
    circumstances of the case being reviewed, the instructions given left the jury
    with a sufficient understanding of the issues to be decided to equip them to
    make their decision. In this case, Mr. MacDonald says, the instructions given
    fulfilled their function.

[38]

Mr.
    MacDonald emphasizes the brief, uncomplicated nature of the trial, the issues
    raised, and the evidence given. Only a handful of witnesses testified.  Counsel
    reviewed the evidence in detail on the same day the jurors were charged,
    deliberated, and reached their verdict. The trial judge repeatedly emphasized
    the jurors obligation to consider the evidence as a whole. The judges
    determination not to engage in a further recitation of the evidence was
    influenced by the circumstances of the case and is entitled to substantial
    deference.

[39]

Mr.
    MacDonald says that the jurors received adequate instructions about the way in
    which they were to assess the evidence and make their findings of credibility.
    The instructions on prior statements were overly favourable to the appellant. The
    jury was given the
W. (D.)
instruction and clearly distinguished among
    the counts by the verdicts they rendered.

The Governing Principles

[40]

Basic
    principles inform our decision about the adequacy of the trial judges
    instructions in this case.

[41]

Anyone
    charged with a criminal offence and tried by a jury is entitled to a properly,
    not perfectly, instructed jury:
R. v. Jacquard
, [1997] 1 S.C.R. 314,
    at para. 2.

[42]

As
    described by this court in
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545
    (Ont. C.A.), at para. 27, a trial judges final instructions must leave the
    jury with a clear understanding of:

·

the factual issues to be resolved;

·

the legal principles governing the factual issues and the
    evidence adduced at trial;

·

the positions of the parties; and

·

the evidence relevant to the positions of the parties on the
    issues.

[43]

In
    their final instructions most trial judges include a discrete statement of the
    positions of the parties, often a repetition of a brief summary prepared by
    counsel at the judges request. What controls, however, is substance not form.
    In the end, however the message is delivered, jurors must be left with a clear understanding
    of each counsels position. To the extent that the positions may vary among
    counts in a multiple count indictment, the position on each should be made
    clear.

[44]

The
    responsibility of the trial judge to relate the evidence to the issues raised
    by the defence involves two components. The first is a
review
of the
    evidence. The second is a
relation
of the evidence to the position of
    the defence.  Except in rare cases, where it would be unnecessary to do so, a
    trial judge must review the substantial parts of the evidence and give the jury
    the position of the defence so that the jury appreciates the value and effect
    of that evidence:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at pp.
    497-498. Typically, trial judges review the evidence in the context of the
    various issues and indicate what parts of the evidence support the positions of
    the respective parties on those issues:
MacKinnon
, at para. 29.
    Judicial
review
of the evidence refreshes the jurors memory of the
    evidence given. Judicial
relation
of the evidence to the issues improves
    jurors understanding of the particular aspects of the evidence that bear on
    their decision on each essential issue in the case.

[45]

A
    trial judge is under no obligation to review
all
the evidence adduced
    at trial:
MacKinnon
, at paras. 29-30; and
R. v. Daley
, 2007
    SCC 53, [2007] 3 S.C.R. 523, at paras. 55-56. Nor is a trial judge required to
    review the same evidence more than once where the evidence relates to more than
    one issue, provided the judge makes it clear to the jury that the evidence is
    relevant for more than one purpose:
Jacquard
, at paras. 14 and 16.

[46]

Trial
    judges have considerable latitude in connection with the volume of evidence
    they review and relate to the various issues the jury will be called upon to
    decide:
R. v. Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3; and
Daley
,
    at para. 57. It follows that the decisions of trial judges about the volume of
    evidence they choose to review in final instructions are owed substantial
    deference by appellate courts. The failure of a trial judge to mention individual
    items of evidence will not be fatal unless the items omitted constitute the
    sole evidentiary foundation of a defence:
R. v. Demeter
(1975), 25
    C.C.C. (2d) 417 (Ont. C.A.), at p. 436, affirmed on other grounds [1978] 1
    S.C.R. 538.

[47]

The
    obligation to review the substantial parts of the evidence and to relate it to
    the issues raised by the parties is that of the trial judge, not counsel,
    whether prosecuting or defending. The closing addresses of counsel cannot
    relieve the trial judge of the obligation to ensure that the jury understands
    the significance of the evidence to the issues in the case, although the judge
    can consider the closing addresses of counsel in deciding how to discharge his
    or her obligations:
MacKinnon
, at para. 32;
Royz
, at para. 3;
    and
R. v. Garon
, 2009 ONCA 4, 240 C.C.C. (3d) 516, at para. 84.

[48]

Appellate
    review of the adequacy of jury instructions requires a functional approach in
    which we test the instructions against their ability to fulfill the purposes
    for which final instructions are given:
Jacquard
, at paras. 32 and 41;
    and
MacKinnon
, at para. 27.

[49]

Jury
    charges do not take place in isolation, but in the context of the trial as a
    whole. Appellate review of the adequacy of jury charges must acknowledge this
    reality, especially where the complaint is about the extent to which the trial
    judge has reviewed the evidence in final instructions. Appellate review on this
    issue includes consideration of the complexity and volume of the evidence
    adduced at trial, the extent of its review by counsel in their closing
    addresses, the length of trial proceedings, the issues to be resolved by the
    jury, the effect of a more complete and balanced review of the evidence, and
    whether counsel objected to the charge on the ground advanced on appeal. The test
    is one of fairness:
Daley
, at para. 57. Provided the evidence is left
    to the jury in a way that will permit the jurors to fully appreciate the issues
    raised and the defences advanced, the charge will be adequate:
Daley
,
    at para. 57.

[50]

A
    consequence of the functional approach to jury instructions and their review by
    appellate courts is the absence of any requirement that the instructions
    conform with or follow a specific structure. Substance prevails, not form. That
    said, it is hard to controvert the principle that organized instructions are
    more likely to inform the understanding of the jury than are unorganized or
    disorganized directives. Final instructions that display an overall
    organization,
[2]
as well as an organized approach to individual parts, seem inherently more
    likely to fulfill the purposes for which instructions are given.

[51]

Among
    other things, unorganized or disorganized final instructions may result in:

·
the omission of essential
    instructions;

·
the inclusion of irrelevant or
    superfluous instructions; and

·
the unnecessary repetition of
    instructions already given.

In the result, the instructions may become needlessly
    complex, lengthy and confusing to the jury, and distract jury members from an
    informed decision on the essential and controverted issues in the case:
R.
    v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 52.

[52]

In
    some cases, the unnecessary complexity of a jury charge may divert the jurys
    attention from the critical issues in the case to such an extent that a new
    trial may be required:
Rowe
, at para. 52; and
R. v. Hebert
,
    [1996] 2 S.C.R. 272, at para. 13.

[53]

Multiple
    count indictments, especially those in which the determination on each count
    depends on evidence limited to that count and which may involve bases of
    liability or defences different than those in play on other counts, impose a
    greater burden on trial judges in their final instructions.  Each count is
    separate.  Each requires a separate verdict. Each will often require legal
    instructions that differ from those that apply to other counts. Common features
    can be incorporated by judicial shorthand in final instructions, but where
    different principles are at work, they must be clearly stated to ensure they
    are appreciated by the jury.

The Principles Applied

[54]

The
    cumulative effect of several errors and omissions in the final instructions in
    this case satisfies me that we should give effect to this ground of appeal and
    order a new trial.

[55]

At
    bottom, this prosecution involved allegations of sexual offences committed on
    the daughter of the appellants common law partner. The evidence revealed three
    discrete forms of conduct by the appellant that the Crown alleged amounted to
    the offences charged:

·
the dramatic kissing incidents

·
the tongue in mouth kissing

·
the belt episode

The trial proceedings were brief, the witnesses few,
    and the evidence uncomplicated.

[56]

The
    form of the indictment contributed to the complexity of the proceedings to some
    extent. The indictment contained six counts, three of sexual assault and three
    of sexual exploitation. Each referred to the same or overlapping periods of
    time, same place, and same complainant. Typically,
[3]
no particulars of the specific conduct alleged were included in the count or
    sought by defence counsel. At the end of the evidence, Crown counsel stayed the
    three sexual exploitation counts. The jurors received no appreciable assistance
    on the subject matter of each count until they were recalled after the
    conclusion of final instructions.

[57]

The
    charge to the jury failed to accord separate treatment to each count that
    required the jurys decision beyond advising them that each count required a
    separate decision that was to be made wholly and exclusively on the evidence
    that related to that count and that the verdicts need not be the same on each
    count. The overall impression left by the charge is that the jurors had to
    decide whether the appellants conduct was merely inappropriate or was
    criminal.

[58]

What
    the charge as a whole lacked was a focussed reference to the factual issues to
    be resolved in connection with each count (as ultimately described), a
    statement of the positions of the parties in relation to the count, and a
    review of the significant features of the evidence that bore on the parties
    positions on each count.

[59]

On
    the count relating to the tongue in mouth kiss, the appellants position was
    that the incident never occurred. The trial judge never instructed the jury on
    this defence, rather implicitly brushed it aside with his focus on the criminal
    nature of the conduct.

[60]

The
    final instructions of the trial judge, including his response to the jurys
    request for a definition of assault and the actual written definition of the
    four elements of sexual assault, included reference to statutory provisions
    that had no foundation in the evidence or were legally irrelevant to the jurys
    task. The assistance the jury requested was not provided. In combination, the
    failure of the trial judge to instruct the jury on the position of the defence
    and the unnecessary complexity in the charge deprived the appellant of a fair
    adjudication of the merits of his defence and they warrant a new trial.

Ground #2: Failure to Instruct on
    Evidence of Post-Offence Conduct

[61]

The
    second ground of appeal alleges error by the trial judge in failing to instruct
    the jury that evidence of certain conduct attributed to the appellant after the
    complainant reported her allegations was of no evidentiary value in determining
    whether his guilt had been proven beyond a reasonable doubt.

[62]

An
    assessment of this claim of error requires a brief reference to the evidence at
    issue and the use Crown counsel at trial sought to make of it in his closing
    address to the jury.

The Background

[63]

On
    their first attendance after a telephone call from the complainants mother,
    the police concluded that the marital relationship had broken down and that the
    couple should separate. The parties agreed that the appellant should leave the
    matrimonial home for a few days and developed a plan to ensure that the
    children did not come into contact with the appellant.

[64]

The
    following day the complainants mother and a CAS worker returned to the home to
    retrieve some keys. The appellants truck was there. The CAS worker told the
    appellant to leave. The appellant explained that the police had told him to
    stay away from the house for two, or a couple of days.  He returned to the
    house two days later to retrieve some of his belongings.

[65]

The
    complainants mother was hospitalized shortly after police and CAS began their
    investigation. She claimed that the appellant wrote her a note of apology and
    later a suicide note. Neither contained any admission of wrongdoing.  She
    testified that the note of apology was delivered to her in the hospital, and it
    was marked as an exhibit at trial.  As discussed earlier in the Background Facts
    section, the appellant had also previously written apology letters to each of
    his stepdaughters. The complainants mother testified that when she returned
    home from the hospital these letters were missing.

The Closing Address of Crown Counsel at Trial

[66]

In
    his closing address to the jury, counsel for the Crown at trial referred to the
    evidence about the appellants return to the matrimonial home and the missing
    letters of apology. He suggested that the evidence supported the inference that
    the appellant manipulated the police to permit his premature return to the home
    to recover the letters, his purpose being to remove them as pieces of
    incriminating evidence.

The Jury Instructions

[67]

In
    his final instructions, the trial judge referred to the substance of the
    evidence to which the trial Crown had referred, but did not instruct the jury
    on its relevance to any issues they were to determine or impose any limitations
    upon its use.

The Arguments on Appeal

[68]

For
    the appellant, Ms. Makepeace says that evidence of post-offence conduct is
    circumstantial evidence that can be of assistance in completing proof of guilt
    provided the inferences it is said to support are reasonable. In this case,
    however, the inferences advanced by the trial Crown were unreasonable and speculative.

[69]

Ms.
    Makepeace contends that there was nothing sinister about the timing or
    frequency of the appellants return to the matrimonial home in light of the
    advice he received from the police, nor any evidence to link him to the
    disappearance of the letters of apology to his stepdaughters. The trial Crowns
    reference to this evidence in his closing address required an instruction from
    the trial judge that the evidence had no probative value on any issue at trial.
    The failure of the trial judge to provide such an instruction constituted
    misdirection.

[70]

For
    the respondent, Mr. MacDonald reminds us that evidence of post-offence conduct
    is not some unique or special kind of evidence, but simply circumstantial
    evidence of things done or said by an accused after an offence has been
    committed. The evidence, which is admissible where it is relevant and capable
    of supporting reasonable inferences such as showing the culpable character of an
    accuseds conduct, does not attract any special warning or instruction about
    evidentiary use.

[71]

Mr.
    MacDonald says that the cumulative effect of the evidence relied upon here can
    sustain an inference that the appellant removed the letters of apology to evade
    detection. Thus, the trial judge would have been wrong to provide a no probative
    value instruction about this evidence. But even if a no probative value
    instruction were required, its omission caused the appellant no prejudice
    because of the peripheral nature of the evidence and the lack of objection at
    trial.

The Governing Principles

[72]

The
    parties occupy common ground about the basic principles that control our
    decision on this ground of appeal. They part company about the result the
    application of these principles should yield in this case.

[73]

Three
    basic principles about evidence of post-offence conduct are of significance
    here.

[74]

First,
    evidence of post-offence conduct is not some unique or special kind of evidence
    that is subject to specific rules because of its peculiar nature. It is
    circumstantial evidence, the relevance and admissibility of which depends on
    the application of basic evidentiary principles:
R. v. White
, 2011 SCC
    13, [2011] 1 S.C.R. 433, at paras. 22, 38, 105, 132, and 137.

[75]

Second,
    evidence of post-offence conduct is not subject to any special warning about
    evidentiary use:
White
, at paras. 21, 105, and 137.

[76]

Where
    the circumstances require a specific instruction about limited evidentiary use,
    a failure to give such an instruction, an error of law, may be subject to the
    application of the proviso in s. 686(1)(b)(iii):
White
, at paras.
    95-98;
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25;
    and
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 35-36.

The Principles Applied

[77]

I
    would not give effect to this ground of appeal. I am satisfied that evidence of
    what the appellant did and said after the complainants disclosures to the CAS and
    police was properly admitted at trial and required no express instruction
    limiting or prohibiting its use by the jury during their deliberations. Even if
    some instruction should have been provided to the jury about the use of this
    evidence, I am satisfied that its omission did not occasion the appellant any
    substantial wrong or miscarriage of justice in the circumstances of this case,
    and the proviso of section s. 686(1)(b)(iii) would apply.

[78]

The
    evidence included testimony that the appellant wrote apology letters to the
    complainant and her sister and asked the complainants mother to hide the
    letters so that visiting family members would not see them. When the complainants
    mother returned home from the hospital, the letters were gone. The appellant
    had returned to the house in the interim. Considered in its entirety, this
    evidence could support an inference that it was the appellant who removed the
    letters to avoid their inculpatory implications.

[79]

Second,
White
instructs that the mere introduction of circumstantial evidence
    of post-offence conduct requires no special warning to the jury about its use:
White
,
    at paras. 21, 105, and 137.

[80]

Third,
    trial counsel for the appellant did not object to Crown counsels reference to
    this evidence in his closing address or seek any no probative value or
    limiting instruction about the evidence in the charge to the jury.

[81]

Fourth,
    evidence of the post-offence conduct of the appellant was not a significant
    aspect of the Crowns case against the appellant. The principal issues at trial
    were whether the conduct alleged by the complainant took place, and whether
    some incidents were of a sexual nature. On these issues, the Crowns case
    depended on the jurys acceptance of the evidence of the complainant.

[82]

Finally,
    the evidence of post-offence conduct related to the conduct that formed the
    subject matter of all counts on which the jury was asked to render a verdict.
    The appellants acquittal on two of the three counts tells heavily against any
    claim that reception of the evidence or the absence of limiting instructions
    caused the appellant any prejudice.

conclusion

[83]

For
    these reasons, I would allow the appeal, quash the conviction, and order a new
    trial on count 3 of the indictment. In these circumstances, it is not necessary
    to consider the appeal from sentence.

David
    Watt J.A.

I
    agree W. Winkler C.J.O.

I
    agree John Laskin J.A.

Released:
October 30, 2012 JL

[1]
The manner in which the appellant and the complainant kissed,
    described at trial as dramatic kissing, was the subject of the first count of
    sexual assault contained in the indictment.  The appellant was acquitted of
    this count at trial.

[2]
For example by division into sections such as:
Introduction
    and Basic Concepts, The Issues, The Positions of the Parties, and Available
    Verdicts and Concluding Instructions
.

[3]
As a general rule, indictments and informations containing counts
    of sexual assault do not describe the nature of the conduct that forms the
    subject matter of the charge.