COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Punia, 2018 ONCA 1022

DATE: 20181212

DOCKET: C63403

Feldman, MacPherson
    and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mandeep Punia

Appellant

Lindsay Daviau, for the appellant

Grace Choi, for the respondent

Heard and released orally: December 10, 2018

REASONS FOR DECISION

[1]

The appellant appeals from her sentence of 12 years in the stabbing of
    her sister-in-law.  The appellant abandoned her conviction appeal.  While the
    appellant was tried on a charge of second murder, she was found guilty of
    manslaughter.

[2]

The sentencing judge gave thorough reasons in deciding on the sentence
    of 12 years.  He concluded correctly in our view, that this was a case of
    aggravated manslaughter.  The range of sentence for that offence has been said
    by this court in
R. v. Clarke
(2003) 172 O.A.C. 133 to be between 8
    and 12 years.  The appellant submits, through duty counsel, that the sentencing
    judge made three errors:

(1)

That the appellant stabbed the
    deceased in the neck;

(2)

That the stabbing would cause
    bodily harm; and

(3)

That the deceased was holding
    her baby at the time that she was stabbed.

[3]

We do not agree that any of these three errors were made.  Given that
    this was a trial by jury, the sentencing judge had to discern the factual
    findings for the verdict.  It was open to the sentencing judge to reach the
    conclusion that the deceased was stabbed in the neck given the blood loss that
    occurred.  It follows from that fact that the stabbing would cause bodily
    harm.  In any event, the basic facts of stabbing, blood loss, death with no
    effort to obtain medical aid, and concealment of the death for three years
    would constitute an aggravated manslaughter.  Indeed these facts are comparable
    to the ones in
Clarke
.

[4]

Similarly, the finding that the deceased was holding her baby was one
    that was open to the sentencing judge, but we would also note that this was
    only one of ten facts that the sentencing judge took into account in arriving
    at the sentence.

[5]

While we appreciate the progress that the appellant has made while she
    has been in custody, the sentence imposed was a fit and proper sentence given
    the factual circumstances in which it occurred.  There is no basis for this
    court to interfere.  The appeal is dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ranglin, 2018 ONCA 1050

DATE: 20181218

DOCKET: C62741

Doherty, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Ranglin

Appellant

Delmar Doucette, Andrew Furgiuele and Janelle Belton,
    for the appellant

Michael Bernstein, for the respondent

Heard: October 25, 2018

On appeal from the conviction entered on June 29, 2016 by
    Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a
    jury.

Trotter J.A.
:

A.

introduction

[1]

The appellant was convicted of first degree murder. After oral argument,
    his appeal was dismissed with reasons to follow. These reasons explain why the
    appeal was dismissed.

B.

overview of the facts

[2]

On June 7, 2011, Keith Brissett was murdered while sitting in a car parked
    behind an apartment building in Mississauga. A man walked up to the car and shot
    Brissett six times. The identity of the shooter was the only issue at trial.

[3]

There were a number of people around the building at the time. The
    police identified Anthony Borden, Junior Moy-Lingomba, Curtis Murray, and the
    appellant (also known as Juice) as persons of interest. In October 2012,
    Borden and Moy-Lingomba were charged with first degree murder. Following a
    preliminary inquiry, both were committed to stand trial.

[4]

Borden entered into an agreement with the Crown. He implicated the
    appellant as the shooter and eventually pled guilty to accessory after the fact
    to murder. Borden testified for the Crown and claimed to have seen the
    appellant shoot Brissett. Borden testified that he then drove the appellant away
    from the scene.

[5]

Moy-Lingomba refused to cooperate. However, the Crown eventually stayed
    the murder charge against him and substituted a charge of accessory after the
    fact. That charge was also stayed. The Crown called Moy-Lingomba as a witness
    at the appellants trial. He admitted to being in and out of the apartment
    building that night but claimed that he did not see who shot Brissett. Moy-Lingomba
    testified that he saw Murray around the building that night and said he was
    wearing green clothing. This description was consistent with the evidence of
    Taniesha Wisdom, who witnessed the shooting. She said the shooter wore green
    and had very dark skin (the appellant did not). The appellant went to the jury
    with the theory that Murray was the shooter.

C.

the issues on appeal

[6]

The appellant argues that the trial judge erred in his instructions to the
    jury in the following ways: (1) by failing to direct the jury on the proper use
    they could make of utterances made by Moy-Lingomba in a
KGB
statement;
    (2) by giving
Vetrovec
[1]

warnings concerning the evidence of Borden and Moy-Lingomba over the
    objection of defence counsel; (3) by failing to properly instruct the jury on the
    third party suspect evidence in relation to Murray; and (4) by dealing unfairly
    with the evidence of Taniesha Wisdom.

D.

analysis

(1)

Instruction on the
KGB
Statement

[7]

About a year after Brissett was killed, the police were still
    investigating who was involved in the killing. On June 21, 2012 they recorded a
    conversation between Moy-Lingomba and a police informant, Darren Watts, at the
    Brampton Courthouse. This was before Moy-Lingomba was charged with the murder.
    The statement was admitted for its truth under
R. v. B. (K.G.)
, [1993]
    1 S.C.R. 740 (
KGB
).

[8]

At the time, both men were in custody for other offences. Mr. Watts was
    facing firearms charges. He made a deal with the police whereby he would be
    paid $30,000 to provide them with information. On June 21, 2012, Watts was
    placed in the holding cells of the courthouse. He was wearing a wire. His
    instructions were to get Moy-Lingomba to say that he saw the appellant shoot
    Brissett. Moy-Lingomba never uttered these words. However, he attributed words
    to the appellant that provided powerful evidence of motive to kill Brissett.

[9]

Moy-Lingomba, who was also facing firearms charges, was brought to the courthouse
    the same day. He was interviewed by the police. The police allegedly threatened
    to charge him with the murder, and to implicate his father and girlfriend.
    Moy-Lingomba was then lodged in the holding cells with Watts.

[10]

During
    a recorded conversation, Moy-Lingomba told Watts that the appellant told him
    that he wanted to kill Brissett to avenge the murder of his cousin, Demar
    Ranglin. Many years earlier, Brissett had been charged with this murder but
    acquitted.

[11]

The
    portion of their recorded conversation that was ultimately admitted under
KGB
is as follows:

Watts: Juice. Fucking stupid.

Moy-Lingomba: Juice stupid? How?

Watts: Cause he should have just dealt with that by himself.

Moy-Lingomba: You know long Juice has been looking for that guy
    [Brissett]. Juice has been looking for that guy since 06-07. Thats the first
    time Juice seen him, I dont know how long. Juice is like, you homey, if I see
    this guy anywhere hes getting it. Hes like yo, bro, if I see him in front of
    boydem [police] hes getting it. If anywhere I see this guy, on demand.

Watts: On sight thing then?

Moy-Lingomba: On sight.

Watts: It wasnt even premeditated or nothing.

Moy-Lingomba: No.

Watts: Like accident basically.

Moy-Lingomba: Just ran into the nigga you know.

Watts: Oh coincidence.

Moy-Lingomba: It was just a coincidence that he was there and
    it was a coincidence that me and Tones [Borden] at Rexwood that day.

[12]

At
    the appellants trial, Moy-Lingomba was a hostile witness in every sense of the
    word. He had previously refused to be sworn at the appellants preliminary
    inquiry (which was held separately from the earlier preliminary inquiry of Borden
    and Moy-Lingomba). He expressed a willingness to lie under oath. He was abusive
    and profane when responding to questions posed by the Crown.

[13]

Moy-Lingomba
    admitted making the utterances reproduced above; he had little choice, since
    the conversation had been recorded. However, Moy-Lingomba denied that he received
    this information directly from the appellant; he insisted that his knowledge
    was derived from rumour and gossip in the community, but could not remember
    from whom. He agreed with defence counsels suggestions that it was all
    scuttlebutt, rumour and just word on the street, type of thing.

[14]

No
    issue is taken with the decision to admit Moy-Lingombas utterances. The
    appellant challenges the manner in which the trial judge instructed the jury on
    this evidence.

[15]

The
    only contentious issue concerning this evidence was the source of Moy-Lingombas
    information. That is, did the appellant actually tell him that he wanted to
    kill Brissett, or did Moy-Lingomba acquire this information through rumour or gossip?
    If it were the former, the utterances were admissible and provided cogent
    evidence of a motive; if it were the latter, the utterances were inadmissible
    for their truth and would have no value at all.

[16]

It
    would have been preferable had the trial judge instructed the jury along the
    following lines:

The contents of Moy-Lingombas statement is evidence against
    Mr. Ranglin and may provide evidence of a motive for the murder
only
if
    you are satisfied that the information in Moy-Lingombas statement came
directly
from Mr. Ranglin and not from someone else or gossip on the street.

[17]

The
    trial judge did not give such an instruction. However, I am satisfied that the
    trial judges instructions on the use of hearsay evidence, together with his
    instructions on the
KGB
statement, were sufficient to convey this straightforward
    issue to the jury. It would have been clear to the jury that Moy-Lingombas
KGB
utterances could not be used for
any
purpose unless they were
    satisfied that he was repeating what the appellant told him.

[18]

The
    trial judge correctly explained hearsay evidence to the jury, as well as the
    hearsay exception engaged by the
KGB
statement:

There is an exception to the hearsay rule.
Anything that you
    find that the accused said to a witness may be used by you as proof of what the
    accused said in deciding this case. This, of course, requires you to make a
    determination that the statement to the witness was made by the accused and
    determine what statement was made by the accused.
If you so determine for
    any statement made by the accused to the witness, you may use that statement
    made by the accused to the witness as proof of what the accused said to the
    witness when considering and deciding whether the Crown has proven the guilt of
    the accused beyond a reasonable doubt. [Emphasis added.]

[19]

Later
    in his charge, the trial judge addressed the exchange between Watts and
    Moy-Lingomba:

With respect to statements made by Mr. Moy-Lingomba during this
    specific portion of the conversation only, in addition to these statements to
    assess his testimony like any other witness, Mr. Moy-Lingombas testimony and
    these statements can be used as evidence
of what actually happened
. In
    other words, you may consider any statements made by Mr. Moy-Lingomba during
    this specific portion of the conversation, and only this portion of the
    conversation, as part of the testimony of Mr. Moy-Lingomba at this trial.
    [Emphasis added.]

It is plain that the phrase what actually happened
    refers to whether Moy-Lingomba received this information from the appellant or from
    other sources.

[20]

The
    trial judge followed up this instruction with a review of the factors that
    might shed light on whether Moy-Lingomba was telling the truth about the source
    of his information. He clearly framed for the jury the tension between what Mr.
    Moy-Lingomba said to Watts (i.e
.
, Ranglin told me) and his testimony
    at trial (i.e
.
, it was from gossip in the community).

[21]

After
    completing his review of the
KGB
statement and Moy-Lingombas testimony
    in general, the trial judge said, It is important that you keep in mind all of
    my instructions including the hearsay and the way in which the conversations
    between Mr. Moy-Lingomba and Mr. Watts can and cannot be used by you in
    deciding this case.

[22]

Near
    the end of his instructions, the trial judge summarized the defence position on
    this issue as follows:

The defence submitted that the portion of the conversation with
    Mr. Watts was only a small segment of the conversation, that it was made after
    threats, Mr. Moy-Lingomba was high, talking to someone who he had no respect
    for, was protecting him and his crew
and was based entirely on rumour and
    gossip.
[Emphasis added.]

This was the last fact-specific reference in the trial
    judges charge.

[23]

Defence
    counsel had input into the trial judges instructions to the jury. The trial
    judge incorporated a suggestion made by defence counsel on this very issue. No
    objection was taken to the charge after it was delivered, which is a telling
    indication that the jury was properly equipped to deal with this
    straightforward evidentiary issue: see
R. v. Sinobert
, 2015 ONCA 691,
    at para. 82. In the context of the trial judges instructions as a whole, and
    in light of the issues framed by counsel, it cannot be said that the jury was misled
    about the proper use it could make of the
KGB

statement.

[24]

I
    would dismiss this ground of appeal.

(2)

The
Vetrovec
Warning

[25]

The
    Crown relied on the evidence of two disreputable witnesses  Borden and
    Moy-Lingomba. Bordens evidence was central to the Crowns case. He testified
    that he saw the appellant shoot Brissett and then immediately drove him away from
    the scene.

[26]

Moy-Lingombas
    evidence may have played a lesser role. Previously charged with the murder, and
    being palpably hostile to the Crown, he tried to assist the appellant during
    his testimony. Nevertheless, his
KGB
utterances provided the most compelling
    evidence of planning and deliberation.

(a)

The Trial Judges Ruling

[27]

During the pre-charge conference, the Crown
    requested that
Vetrovec
cautions be given with
    respect to both witnesses. Defence counsel requested that
Vetrovec
cautions
not
be given. The trial
    judge decided to give the instruction in relation to both Borden and
    Moy-Lingomba:
R. v. Ranglin
, 2016 ONSC 4310.

[28]

With Borden, it was anticipated throughout the
    trial that he was the type of unsavoury witness whose evidence would require a
Vetrovec

caution. The trial judge appreciated that his evidence was
    central to the Crowns case.

[29]

The trial judge recognized that he had
    discretion on the
Vetrovec
issue. After
    considering this courts decision in
R. v. A.W.B.
, 2015 ONCA 185, he determined that, because Bordens evidence was
    essential to the Crowns case, and in light of his overwhelming credibility
    problems, a
Vetrovec

caution was both
    necessary and mandatory in the circumstances of this case:
Ranglin
, at para. 40.

[30]

In relation to Moy-Lingomba, the trial judge concluded
    that he too had overwhelming credibility issues. He also recognized that
    Moy-Lingomba was a mixed
Vetrovec
witness,
    in the sense that he gave evidence that was helpful to the Crown and the
    defence. The trial judge concluded that it was mandatory that a
Vetrovec
caution be given for Moy-Lingomba:
Ranglin
, at para. 47.

[31]

The
    appellant submits that the trial judge erred in considering that these
    instructions were mandatory in this case. In the alternative, he argues that,
    having decided to give
Vetrovec
warnings, the

trial judge ought
    to have exercised his discretion to not catalogue potentially confirmatory
    evidence for the jurys assistance. Lastly, the appellant says that the trial
    was rendered unfair by virtue of the repetition of the confirmatory evidence in
    the Crowns closing address and the trial judges final instructions.

(b)

Discussion

[32]

Trial
    judges enjoy considerable discretion in charging juries on unsavoury witnesses:
    see
Vetrovec
, pp. 823, 831;
R. v. Potvin
, [1989] 1 S.C.R.
    525, at p. 557;
R. v. Bevan
, [1993] 2 S.C.R. 599, at pp. 610-611; and
R.
    v. Brooks
, [2000] 1 S.C.R. 237, at pp. 243-244. Consequently, these
    decisions are afforded substantial deference on appeal:
Brooks
, at pp.
    253-254;
Bevan
, at p. 614;
R. v. Carroll
, 2014 ONCA 2, at para.
    67, leave to appeal refused, [2014] S.C.C.A. No. 193;
R. v. Rafferty
,
    2016 ONCA 816, at paras. 30-31; and
R. v. Moore
, 2017 ONCA 947, at
    para. 20.

[33]

Because
    of the high level of discretion inherent in
Vetrovec
warnings, they
    are not usually spoken of in mandatory terms. However, in
Bevan
, Major
    J. held, at p. 614:

While under
Vetrovec
a
    caution to the jury is a matter of the trial judge's discretion and is not
    required in all cases involving testimony of accomplices or accessories after
    the fact,
there are some cases in which the circumstances may be such that
    a
Vetrovec
caution
    must be given
. The trial judge's discretion whether to give a
Vetrovec
warning should
    generally be given wide latitude by appellate courts. [Emphasis added.]

[34]

In
    that case, the caution was mandated because the two jailhouse informant
    witnesses had lengthy criminal records, strong motivations to lie, and
    approached the police looking for a deal in exchange for their testimony.

[35]

Similarly,
    in
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, Fish J. held, at
    para. 5, that while trial judges usually enjoy a discretion in this regard,
    they sometimes must give such an instruction. As he observed at para. 4, [w]e
    know from recent experience that unsavoury witnesses, especially but not only jailhouse
    informants, can be convincing liars and can effectively conceal their true
    motives for testifying as they have.

[36]

In
    this case, irrespective of whether the warnings were truly mandatory, realistically,
    it was necessary that the jury be warned about, and equipped to deal with, the dangers
    inherent in the evidence of Borden and Moy-Lingomba.

[37]

The
    case for a warning was most compelling for Borden. He was the paradigmatic
Vetrovec
witness. Borden was an admitted drug dealer and a self-styled gangster who accepted
    gifts from his girlfriend who was employed as a sex-trade worker. He
    habitually carried a firearm and was prepared to use it. Moreover, Borden was
    arguably an accomplice to this murder. He admitted to driving the appellant
    away from the scene after the shooting, as well as taking steps to conceal his
    own involvement.

[38]

It
    was only after Borden was committed to stand trial for Brissetts murder that
    he entered into a deal with the Crown to implicate the appellant in exchange
    for the opportunity to plead guilty to a far less serious charge. As the trial
    judge told the jury, [t]his might provide Mr. Borden with a motive to minimize
    his involvement in the shooting and implicate others.

[39]

The
    trial judge was correct to conclude that Borden had overwhelming credibility
    issues and that his evidence was essential to the Crowns case. The trial judge
    considered the objections of defence counsel, which were based largely on
    tactical considerations; however, he was right to reject the argument that
    counsel enjoyed the power of veto on the
Vetrovec

issue.
    Clearly, he did not. In all of the circumstances, and despite the objection of
    defence counsel, it was not an error to give the warning in this case. It was
    necessary.

[40]

I
    am doubtful that a
Vetrovec
caution was mandatory in the case of
    Moy-Lingomba. Nevertheless, there were good reasons to provide this warning.

[41]

Moy-Lingomba
    was involved in drug dealing. He regularly carried a gun. When he testified, he
    was serving a sentence for firearms offences. Like Borden, Moy-Lingomba was initially
    charged with murdering Brissett. Eventually, all charges in relation to the
    murder were discontinued. As the trial judge told the jury, [t]his might have
    provided Mr. Moy-Lingomba with a motive to minimize his involvement in the
    shooting and implicate others.

[42]

I
    accept that Moy-Lingomba did not stand in the exact same position as Borden.
    However, having been instructed on the dangers with Bordens evidence, the jury
    may well have been puzzled had they not been instructed to approach the
    evidence of Moy-Lingomba, Bordens associate, in the same careful way.

[43]

The
    appellant argues that the case for a
Vetrovec
caution for Moy-Lingomba
    was weakened by the fact that his evidence was important to the defence in its
    third party suspect claim. The trial judge acknowledged that Moy-Lingomba was a
    mixed
Vetrovec
witness. As he said at para. 46 of his ruling on the
    issue: Without the
Vetrovec
caution, the jury will not be told,
    understand or apply the appropriate legal assessment to Mr. Moy-Lingombas inculpatory
    evidence and the less stringent assessment of his exculpatory evidence. The
    trial judge provided a mixed
Vetrovec
caution in which he conveyed
    the complexity of the situation to the jury. No objection is taken to the
    correctness of this instruction: see
R. v. Rowe
, 2011 ONCA 753, at
    para. 32; and
R. v. Gelle
, 2009 ONCA 262, at para. 16.

[44]

I
    am not persuaded that the trial judge erred in providing the warning that he
    did in relation to Moy-Lingombas testimony.

[45]

The
    appellant further argues that, having decided to warn the jury about the
    dangers of Bordens evidence and Moy-Lingombas inculpatory evidence, he should
    have mitigated any prejudicial impact of these warnings by declining to identify
    potentially confirmatory evidence for the jury.

[46]

Trial
    judges are afforded leeway in the manner in which they choose to deal with
    confirmatory evidence. However, in this case, defence counsel did not ask the
    trial judge to forego giving the second part of the
Vetrovec
instruction. On this basis alone, I would decline to intervene. I also note
    that, at trial, the defence argued that Borden could not be trusted because he
    heard all of the Crowns evidence that was led at his preliminary inquiry. It
    was argued that Bordens testimony was built upon this acquired knowledge. The
    trial judges itemization of the confirmatory evidence played well with this
    position.

[47]

Lastly,
    the appellant argues that, overall, the
Vetrovec
instructions were
    unfair because they had the effect of unduly bolstering the Crowns case. The
    appellant argues that there was too much correspondence between the Crowns
    closing address and the confirmatory evidence portion of the trial judges
    instructions.

[48]

The
    potential for unfairness to the defence in having confirmatory evidence
    repeated by the trial judge has been recognized in prior cases: see
Brooks
,
    at pp. 249-250;
Carroll
, at para. 79. It is a factor to be considered
    in deciding whether to give the caution in the first place. However, I am not
    persuaded that the fairness of the trial was undermined in this case.

[49]

The
    trial judge thoroughly canvassed the issues for the jury in the pre-charge
    phase of the proceedings. Various drafts of the final instructions were
    generated and discussed. By the end of this process, both the Crown and the
    defence were equipped with the final version of the instructions that the trial
    judge intended to provide to the jury. Both knew in advance what the trial
    judge would refer to in explaining why special cautions were warranted for both
    witnesses, as well as the potentially confirmatory evidence that might restore
    the jurys faith in the evidence of both witnesses. Forearmed with this
    knowledge, both counsel were entitled to tailor their closing addresses
    accordingly.

[50]

There
    is no suggestion that the trial judge identified evidence that was not
    confirmatory. Just because the Crown chose to emphasize the same evidence in
    its closing address did not render the
Vetrovec

cautions
    unfair. The defence stood in the same position. As the trial judge said at
    para. 39 of his

Vetrovec
ruling: The defence will have the
    benefit of a long list of reasons why the jury should be extremely cautious of
    Mr. Bordens evidence when the jury is assessing it. The defence emphasized
    these factors in its closing address.

[51]

As
    it related to Borden, the trial judges itemization of the many pieces of
    confirmatory evidence simply reflected the state of the record. To a certain
    extent it was off-set by the 11 points that the trial judge identified as
    supplying the need for a special caution in the first place.

[52]

There
    is no basis to the claim that there was unfairness in relation to Moy-Lingomba.
    The trial judges instructions helpfully distinguished between the inculpatory
    and exculpatory portions of his evidence.

[53]

I
    would dismiss this ground of appeal.

(3)

Third Party Suspect Evidence

(a)

Introduction

[54]

At
    trial, the defence alleged that Murray killed Brissett. Early on in the trial,
    there was a dispute as to whether the threshold for advancing this theory had
    been met. However, after Moy-Lingombas evidence had been presented, it was agreed
    that the issue was clearly in play. The appellant submits that the trial judge
    erred in the manner in which he left the issue with the jury.

[55]

In
    its closing address to the jury, the Crown chose to combat the third party
    suspect claim by relying heavily on the body of evidence that pointed to the appellant
    as the shooter. The trial judges instructions had a similar focus. The
    appellant argues that the trial judge erred by allowing the issue to be dealt
    with in this fashion. He submits that the trial judge was required to limit the
    jurys focus to evidence that specifically went to whether Murray was the
    shooter or not. He argues that evidence that pointed to the appellant as the
    shooter was irrelevant to the issue and the trial judge erred in failing to
    elucidate that distinction for the jury. Essentially, the appellant contends
    that evidence capable of rebutting the third party suspect claim must be
    independent of the appellants guilt.

[56]

The
    appellant also submits that the trial judge further erred in the manner in
    which he reviewed the evidence on this issue. He argues that the trial judge
    essentially set up a credibility contest between Borden and Moy-Lingomba.

[57]

I
    would reject both arguments.

(b)

Third Party Suspects

[58]

The
    assertion that a third party committed the offence in question is a denial of
    authorship. In
R. v. McMillan
(1975), 7 O.R. (2d) 750 (C.A.), affd
    [1977] 2 S.C.R. 824, at p. 757, Martin J.A. said:

I take it to be self-evident that if A is charged with the
    murder of X, then A is entitled, by way of defence, to adduce evidence that B,
    not A, murdered X

Martin J.A. further observed that, before being
    permitted to adduce evidence of a third party suspect, the evidence must meet
    the test of relevancy and must have sufficient probative value to justify its
    reception: p. 757.

[59]

In
Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27, Abella J. linked the
    criteria in
McMillan

to the air of reality cases (citing
R.
    v. Fontaine
, 2004 SCC 27, [2004] 1 S.C.R. 702 and
R. v. Cinous
,
    2002 SCC 29, [2002] 2 S.C.R. 3), holding, at para. 48: The defence must show
    that there is some basis upon which a reasonable, properly instructed jury
    could acquit based on the defence. See also
R. v. Grant
, 2015 SCC 9,
    [2015] 1 S.C.R. 475, at paras. 24-25. As counsel for the appellant rightly
    submitted, once the third party suspect issue is in play, all this evidence
    needs to do is raise a reasonable doubt about the accused as perpetrator of the
    offence.

[60]

As
    important as third party suspect evidence may be, it does not warrant a
    protective shield that may only be penetrated by evidence that directly
    contradicts it. No authority was offered for this position. There is none.
    Evidence that another person committed the offence in question must be
    considered in the context of all of the evidence to determine whether guilt has
    been proved beyond a reasonable doubt:
R. v. Tomlinson
, 2014 ONCA 158,
    at para. 78. The Crown is entitled to argue that the evidence of a third party
    perpetrator does not raise a reasonable doubt because the claim is overwhelmingly
    defeated by the evidence pointing to the accused as the perpetrator.

(c)

The Trial Judges Instructions

[61]

The
    trial judge followed the formula recommended in David Watt,
Watts Manual
    of Criminal Jury Instructions,
2nd ed. (Toronto: Carswell, 2015) (Final 75
     Third Party Suspect) and addressed the issue while outlining the elements of
    first degree murder. He posed the threshold question of identity, instructing
    the jury that their first task is to determine whether the Crown has proven
    beyond a reasonable doubt that Mr. Ranglin was the person who shot Mr. Brissett
    on June 7, 2011. The trial judge then gave the following instructions (which I
    have numbered to correspond with
Watts Criminal Jury Instructions
):

1.   Anyone charged with an offence may
    introduce or rely on evidence that shows or tends to show that somebody else,
    not the person charged, committed the offence. The evidence may be direct. It
    may be circumstantial. It may be both.

2.   In this case,
    Mr. Ranglin is saying that Curtis Murray may be the person who shot Mr.
    Brissett on June 7, 2011. Evidence that shows or tends to show that Mr. Murray
    shot Mr. Brissett, taken together with the rest of the evidence, may cause you
    to have a reasonable doubt about whether it was Mr. Ranglin who shot Mr.
    Brissett on June 7, 2011.

3.   In this case, Mr. Ranglin points
    to the following evidence that Mr. Murray was the person who shot Mr.
    Brissett..

[62]

As
    Justice Watt says in his commentary to this instruction, at p. 1257:

The instruction itself is unremarkable. It begins by pointing
    out the general rule that permits introduction of evidence of third party
    participation, then becomes more specific in the following paragraph.
The
    second paragraph underscores the jurys obligation to consider the third party
    suspect evidence, along with the rest of the evidence, in deciding whether the
    case against D has been proven beyond a reasonable doubt
.

The third paragraph identifies the supportive evidence by
    subject-matter, then suggests it be followed by a review of the relevant
    evidence on both sides of the participation issue
. The instruction should
    be folded into a discussion of the appropriate essential element, as for
    example in Final 229-A,
Second Degree Murder
, Did
(NOA) cause
    (NOC)
s
death?. [Emphasis added.]

[63]

The
    trial judge followed this sensible approach. After identifying the evidence
    that may have pointed to Murray as the shooter, he then reviewed the evidence
    the Crown relied upon to rebut this assertion. Not surprisingly, the evidence
    of Borden and Moy-Lingomba figured prominently in this review. But it was not
    the only evidence to which he referred in this context. The trial judge referenced
    all of the evidence adduced at trial that was connected to the issue of
    identity. He did not unfairly pit the testimony of the two
Vetrovec
witnesses
    against each other in a manner that created a credibility contest.

[64]

After
    the trial judge completed his review of the evidence bearing on the identity of
    the shooter, he delivered the final part of the recommended third party suspect
    instructions. These instructions adhere closely to the framework in
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742. This is surely the correct approach for, once
    the third party suspect issue is properly in play, it need only raise a
    reasonable doubt on the issue of identity: see
Tomlinson
, para. 78; and
R. v. Khan
, 2011 BCCA 382, at paras. 90-91. This was clearly brought
    home to the jury in this case.

[65]

I
    would dismiss this ground of appeal.

(4)

Taniesha Wisdoms Evidence

[66]

The
    appellant argues that the trial judge dealt with the evidence of Taniesha
    Wisdom in an unfair manner. First, he argues that the trial judge commented adversely
    on the fact that her evidence was presented in a video format. Second, the
    appellant submits that her evidence, especially as it related to the skin
    colour of the shooter, was not properly incorporated into the trial judges
    review of the evidence pointing to Murray.

[67]

Ms.
    Wisdom was unable to testify in person. A videotape of her evidence from the
    preliminary inquiry was played for the jury. In a nutshell, Ms. Wisdom
    testified that she had witnessed the shooting when she was returning to the
    building with a friend and their children. She recognized Mr. Borden from the
    building. However, she did not recognize the shooter. She described him as a
    man who wore green clothing, and who had very dark skin. The appellants skin
    was much lighter.

[68]

The
    appellant argues that the following instruction concerning Ms. Wisdoms
    evidence was unfair:

Just like any witness, it is for you to decide how much or
    little you believe of or rely upon her evidence. You may believe some, none or
    all of it.
In deciding how much of little you will believe of or rely upon
    this evidence, remember that while you saw her videotaped evidence in its
    entirety, you did not have the opportunity to watch and listen to Ms. Wisdom
    give evidence live in front of you, as you did with other witnesses. This may
    or may not affect your assessment of her evidence
. It is for you to say how
    much or little you will believe of and rely upon Ms. Wisdoms evidence in
    deciding this case. [Emphasis added.]

[69]

Unfortunately,
    the videotape of Ms. Wisdoms evidence was not made an exhibit at trial and was
    not available for viewing on appeal. It ought to have been made a lettered
    exhibit at trial: see
R. v. MacIsaac
, 2017 ONCA 172, leave to appeal refused,
    [2017] S.C.C.A. No. 152, at para. 57. Without the videotape, it is difficult to
    fully evaluate this ground of appeal, in the sense of knowing if the trial
    judges comments were tailored to a specific shortcoming of the recording.

[70]

Nevertheless,
    I am of the view that there was nothing objectionable in the trial judges
    direction. No objection was taken. The trial judges remarks were benign and
    did not undermine the exculpatory force of Ms. Wisdoms evidence. His
    instructions reflected the obvious fact that, unlike all of the other witnesses
    at trial, the jury was left to assess her credibility from a videotape, and not
    from in-court testimony. It cannot be said that this testimonial factor was
    irrelevant. Indeed, it would have been improper for the trial judge to tell the
    jury that they could not consider this factor in assessing her evidence. I see
    no error.

[71]

The
    appellant also complains that, in his third party suspect instructions, the
    trial judge did not specifically refer to the fact that Ms. Wisdom provided a
    description of the shooters skin that supported the defence position that
    Murray killed Brissett. Although the trial judge could have included this point
    in his third party suspect instructions, his failure to do so was not an error.

[72]

The
    importance of this aspect of Ms. Wisdoms evidence was squarely before the jury.
    When summarizing the evidence of various witnesses, the trial judge included the
    following summary of Ms. Wisdoms description of the shooter:

She saw a car by the back door to the building, between the
    back doors and the garbage bins. She described the shooter as a very dark black
    man (darker than Mr. Borden), dark skin, African black and very dark skinned.
    The shooter shot the person in the car from the drivers side. The shooter was
    wearing a green hat and green t-shirt.

[73]

When
    dealing with the exculpatory aspects of Moy-Lingombas evidence, the trial
    judge referenced aspects of Ms. Wisdoms evidence in the following passage:

Some of Mr. Moy-Lingombas evidence is exculpatory, that is may
    assist or help Mr. Ranglin in his defence, at least it could, depending on your
    view of some of his evidence. For example, Mr. Moy-Lingomba testified that
    Murray was at the Rexwood apartment that night wearing a green shirt and a
    green cap, which is evidence, if accepted by you, is consistent with the
    description of the shooters clothing by Ms. Wisdom.

This was repeated in the third-party suspect
    instructions.

[74]

In
    his closing address, defence counsel emphasized Ms. Wisdoms description of the
    shooters skin colour. This was repeated by the trial judge when he summarized
    the position of the defence. The significance of this aspect of Ms. Wisdoms
    evidence would not have been lost on the jury.

[75]

I
    would dismiss this ground of appeal.

E.

Conclusion and disposition

[76]

As explained above, the appeal was dismissed at the end of the oral
    hearing.

Released: DD DEC 18 2018

Gary
    Trotter J.A.

I
    agree. Doherty J.A.

I
    agree. David Brown J.A.

[1]

R. v. Vetrovec
, [1982] 1 S.C.R.
    811.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Upjohn, 2018 ONCA 1059

DATE: 20181220

DOCKET: C65011

Doherty, Rouleau and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kyle Upjohn

Respondent

Milan Rupic, for the appellant

Gary R. Clewley, for the respondent

Heard: November 14, 2018

On appeal from the order entered by Justice Maureen
    Forestell of the Superior Court of Justice on January 25, 2018, with reasons
    reported at 2018 ONSC 947.

Rouleau J.A.:

Facts

[1]

Early in the afternoon of February 2, 2016, while walking through High
    Park in Toronto, Sanja Mandic encountered a young man who appeared to be on the
    verge of hanging himself. He was tying a rope around a tree branch and around
    his neck. Ms. Mandic sought assistance from a park staff person, but to no
    avail. She then called her husband, Sasa Vukobrat. Mr. Vukobrat was a few
    minutes away so he drove to the park to assist his spouse.

[2]

Upon arrival at the park, Mr. Vukobrat saw the respondent, an on-duty
    police officer, sitting in a marked patrol car near the entrance of the park.
    Mr. Vukobrat told the respondent that someone may be about to commit suicide in
    the park and he asked for assistance.

[3]

The respondent refused to assist, stating that he was already on a call.
    He told Mr. Vukobrat to phone 911. Police records show that the respondent was
    in fact not on a call at that time. The respondent left the area after Mr.
    Vukobrat entered the park to find his spouse.

[4]

Mr. Vukobrat located the young man, later identified as Alexandre
    Boucher, who had hanged himself. Mr. Vukobrat called 911. Emergency personnel
    responded but Mr. Boucher did not survive.

[5]

The respondent was originally charged with criminal negligence causing
    death contrary to s. 220(b) of the
Criminal Code
, failing to provide
    the necessaries of life contrary to s. 215(2)(b) of the
Code
, and
    breach of trust contrary to s. 122 of the
Code
. The first two charges
    were later withdrawn after it became apparent that the Crown would be unable to
    determine the precise time of Mr. Bouchers death. There was, in essence, no
    way to link the respondents failure to act with the cause of death.

[6]

After a preliminary inquiry, the respondent was committed to stand trial
    for breach of trust. In her reasons, the preliminary inquiry justice properly
    identified the leading case as
R. v. Boulanger
, 2006 SCC 32, [2006] 2
    S.C.R. 49. In
Boulanger
, the Supreme Court of Canada set out the
    elements of the offence of breach of trust by a public officer at para. 58.
    They are as follows:

(1)

The accused is an official;

(2)

The accused was acting in
    connection with the duties of his or her office;

(3)

The accused breached the
    standard of responsibility and conduct demanded of him or her by the nature of
    the office;

(4)

The conduct of the accused
    represented a serious and marked departure from the standards expected of an
    individual in the accuseds position of public trust; and

(5)

The accused acted with the
    intention to use his or her public office for a purpose other than the public good,
    for example, for a dishonest, partial, corrupt, or oppressive purpose.

[7]

The preliminary inquiry justice found that there was evidence capable
    of supporting a finding that [the respondents conduct] is a conscious decision
    to ignore the police duty at common law to protect and preserve human life. As
    a result, she concluded that a trier of fact could reasonably infer that the
    respondents conduct constituted a serious and marked departure from the
    standards expected of an individual in his position of trust and that the
actus
    reus
of the offence as outlined in elements one to four had been
    satisfied.

[8]

As for the fifth element, the
mens rea
, she found it possible
    to infer that the respondent refused to assist and drove away for the dishonest
    purpose of avoiding all the unpleasant tasks involved in responding to a
    suicide call. The preliminary inquiry justice also found there was evidence
    that the respondent lied about being on a call and that, post offence, he
    attempted to conceal his breach of trust by falsely suggesting to a second
    officer that he  the second officer  was the one Mr. Vukobrat had approached
    for help. This, in her view, was consistent with the respondent having the
    subjective intent of dishonesty.

[9]

The respondent brought an application for
certiorari
on the
    narrow issue that there was no evidence capable of supporting an inference that
    he had the necessary
mens rea
for the offence. The application judge
    agreed. Based on
Boulanger
,

she determined that breach of trust is a specific intent offence requiring
    proof of an ulterior motive beyond the mere intention to carry out the act. In
    this case, what was required was proof of an intention other than the mere
    refusal to carry out his duty.

[10]

Relying
    on
Boulanger
,
the
    application judge explained at para. 19 of her reasons that the intent
    necessary for the offence goes beyond the intention for the
actus reus
and requires an additional or elevated intent: a non-public purpose, a
    corrupt or improper purpose. The only evidence of
mens rea
was
    evidence supporting a finding that the respondent did not carry out his duty,
    lied about it to Mr. Vukobrat and later tried to cover up his breach of duty. The
    application judge agreed that an inference could be drawn from this evidence
    that the breach was motivated by a desire to avoid the unpleasant consequences
    associated with responding to a possible suicide. This, in her view, did not
    constitute an ulterior purpose as required by
Boulanger
.

Analysis

[11]

The
    appellant argues that the application judge erred in her interpretation of
Boulanger
, namely with respect to
the requisite
mens
    rea
for the offence under s. 122. In the appellants view,
Boulanger
simply requires that the conduct of the public official satisfying the
actus
    reus
for the offence be done for a purpose other than the public good. Although
    such a purpose will frequently involve dishonest, partial, corrupt, or
    oppressive conduct, there is no fixed category of purposes that can satisfy the
mens rea
. In the appellants submission, the
mens rea
requirement is satisfied where a police officer decides not to carry out his
    duty for the purpose of putting his own comfort or needs before the good of the
    public.

[12]

I
    disagree. In
Boulanger
, when considering the
mens rea
requirement, the court explained at para. 56 that:

In principle, the
mens rea
of the offence lies in the
intention to use ones public
    office
for purposes other than the benefit of the public. In practice,
    this has been associated historically with using ones public office for a
    dishonest, partial, corrupt or oppressive purpose, each of which embodies the
    non-public purpose with which the offence is concerned. [Emphasis added.]

[13]

While
    I accept the appellants submission that an inference is available on this
    record that the respondent intended to put his own comfort or needs before the
    good of the public, I do not agree that this constitutes an intention to use
    his public office for a purpose other than the public good as required by
Boulanger
.

[14]

If
    accepted, the evidence would allow a trier of fact to find that the respondent
    exhibited a shocking and complete disregard for the duties police officers are
    sworn to uphold. Nonetheless, however egregious the respondents conduct may
    have been and however seriously such conduct might tarnish the image of his police
    service and its members, no intent to use the public office for some improper
    purpose can be inferred from the record.

[15]

Boulanger
held that s. 122 criminalizes the common law offence of misfeasance in
    public office but not the common law offence of neglect of official duty: at
    para. 48. It is the
mens rea
of an improper purpose that marks the
    distinction between these two offences. If the improper purpose can be found,
    in substance, in a decision not to perform ones duty, the distinction the
    Supreme Court of Canada insisted upon disappears. The improper purpose
    requirement would also effectively be eradicated. To satisfy the improper
    purpose requirement there must be an improper purpose that is materially different
    from the decision not to perform the duty. In my view, a desire to avoid an
    unpleasant duty does not make the grade.

[16]

To
    find otherwise would, in effect, mean that the
mens rea
for the
    offence would be made out whenever a slothful public official simply chose not
    to carry out his or her duty to avoid doing the work. This would not be
    consistent with fundamental criminal law principles that have historically set
    a high bar to establishing mental culpability for public misfeasance:
Boulanger
, at para. 56
.

[17]

I
    should not be taken to suggest that the improper purposes that will satisfy the
mens rea
requirement are restricted to dishonesty, partiality,
    corruptness or oppression. There are certainly other improper uses of ones
    public office that would satisfy the
mens rea
requirement. This said,
    however, simply failing to carry out ones duty to avoid doing the work even
    where the work is considered to be unpleasant by the public official will not
    suffice. Although it does, in a sense, confer a personal benefit on the public
    officer, it does not amount to using the public office for a purpose other than
    the benefit of the public.

Conclusion

[18]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree Doherty
    J.A.

I agree David M.
    Paciocco J.A.

Released: December 20, 2018

DD


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Veerasingam, 2018 ONCA 1031

DATE: 20181213

DOCKET: M49885 (C66227)

Watt J.A.(In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Sivanesan Veerasingam

Appellant

Soban Ponnampaln, for the appellant

Deborah Krick, for the respondent

Heard and released orally: December 10, 2018

REASONS FOR DECISION

[1]

The appellant applies for release pending determination of his appeal to
    this court on convictions of child luring and communication for the purpose of
    prostitution with a person under 16. He was sentenced to imprisonment for a
    term of one year.

[2]

The respondent opposes release on the basis that the appellant has
    failed to demonstrate that his appeal is not frivolous.

[3]

At trial, the appellant did not challenge the case for the Crown which
    arose out of a police-posted advertisement in the Escort section of Backpage.com.
    The appellant responded to the advertisement which made it plain that his collocutor
    was 15 years of age. He attended at the appointed address and was promptly
    arrested in possession of the agreed upon fee, the condoms requested by his
    collocutor; and the cellphone used in their communications.

[4]

After conceding that the Crown had proven the essential elements of the
    offence beyond a reasonable doubt, trial counsel sought a stay of proceedings
    on the basis of entrapment. The trial judge was satisfied that no case of
    entrapment had been made out, declined to enter a stay of proceedings on that
    ground and proceeded to sentence the appellant.

[5]

In his notice of appeal the appellant advances two grounds:

i.

The trial judge erred by not taking into consideration that a key issue
    in Mr. Veerasingams trial namely the interpretation and application of s.
    172.1(4) of the
Criminal Code
was at the time of the trial and is
    currently being considered by the Supreme Court of Canada in
R. v. Morrison
.
    The judgment in
R. v. Morrison
has been reserved and the decision will
    be informative on the proper application of s. 172.1(4) of the
Criminal
    Code
; and

ii.

Since the Supreme Court of Canadas decision in
R. v. Morrison
would significantly impact the application of the law in Mr. Veerasingams
    trial, Mr. Veerasingam is unnecessarily being held in custody currently. If the
    Supreme Court of Canada in
R. v. Morrison
finds that the requirements
    set out in s. 172.1(4) infringes s. 7 of the
Charter
, Mr.
    Veerasingams current custody would be manifestly unjust.

[6]

Despite the modest threshold to be met in establishing that an appeal is
    not frivolous, I am not satisfied that the materials filed meet the test.

[7]

That
R. v. Morrison
is currently reserved in the Supreme Court
    of Canada is an undeniable fact. The simple fact that judgment in that case is
    reserved says nothing about the merits of this appeal in light of the
    evidentiary record developed at trial. The decision of the Supreme Court of
    Canada in
Morrison
will deal with the interpretation of s. 172.1(4) of
    the
Criminal Code
. It may be of some modest relevance to the
    appellants conviction of child luring although this seems questionable on the
    evidence adduced at trial. But it is of no moment to the communication offence
    of s. 286.1.

[8]

The notice of appeal raises no issue with respect to the conviction of
    communication for the purpose, an offence that was complete without the
    necessity of attendance at the place of the proposed assignation.

[9]

On the basis of the materials filed I am not satisfied that the
    appellant has met his onus to demonstrate that the appeal is not frivolous.

[10]

The
    application is dismissed.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vining, 2018 ONCA 1078

DATE: 20181221

DOCKET: C64897

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Vining

Appellant

M. Godoy for the appellant

Jacob Sone for the Crown, respondent

Heard: December 20, 2018

On appeal from the
    conviction entered on August 18, 2017 by Justice D. Lahaie of the Ontario Court
    of Justice.

REASONS FOR DECISION

[1]

Mr. Vining appeals from convictions for theft of
    a pickup truck, dangerous driving, failing to stop for police and mischief. He
    submits that the trial judge erred in her assessment of credibility by failing
    to adequately analyze the evidence of Mr. Gilbert, a key Crown witness, and
    further that she applied uneven scrutiny to Crown and defence evidence. He
    submits that while the trial judges reasons support her rejection of the
    appellants evidence, the evidence as a whole did not prove the appellants
    guilt beyond a reasonable doubt.

[2]

Mr. Vining and Mr. Gilbert were both occupants
    of the truck, careening down highway 401 at speeds up to 160 kmph. Police gave
    chase, but abandoned that effort for safety reasons. The truck left the highway
    and crashed through a gate leading to a marina. Both occupants were found in
    the area close to the abandoned truck. The issues at trial were the following,

1.

Who was driving the truck?

2.

Had Mr. Vining stolen the truck?

[3]

At the start of the trial, the appellant pleaded
    guilty to possession of the stolen pickup, theft of a licence plate, possession
    of other stolen property and breach of probation and of a recognizance.

[4]

In the course of the police chase, police
    observed one of the occupants climb into the back seat. Mr. Gilbert testified
    that he was that occupant and that the appellant was the driver.

[5]

The truck had been reported stolen on December
    21, 2016 in Prince Edward County. The appellant was seen on a video recording
    removing licence plates from another vehicle at a repair shop at 2:58 in the morning
    in that same county. He installed those stolen plates on the stolen truck.  At
    trial the appellant testified that his friend stole the truck, and that he was
    with the friend when the truck was stolen. According to the appellant, the
    friend had his own vehicle and the friend agreed the appellant could use the
    stolen truck.

The appellants evidence about the road trip
    to Toronto

[6]

The appellant and Mr. Gilbert met on December
    30, 2016, as the appellant was driving the stolen truck in Montreal. They were
    both drug addicts, and they spent the morning and the early afternoon together
    consuming drugs and driving around Montreal and stopping at various places. The
    appellant removed the keys from the vehicle and required Mr. Gilbert to leave
    the truck, while the appellant visited a prostitute, as he did not trust Mr.
    Gilbert, and needed the truck for himself. Mr. Vining testified that he drove
    up to a gas station, filled the tank, and then drove away without paying. Mr.
    Vining and Mr. Gilbert decided to drive to Toronto. Mr. Vining testified that
    he directed Mr. Gilbert to change the plates on the truck, and that he then
    went into the passenger seat and fell asleep. He was high and had been up for a
    long time. He woke to see that there were five police cars behind them. Mr.
    Vining testified that he was the one who jumped into the back seat and that Mr.
    Gilbert continued to drive and smashed through the marina gate. He told Mr.
    Gilbert they should split up to facilitate evasion of the police, but
    ultimately Mr. Vining was apprehended, standing on a rock three feet into the
    water in the St. Lawrence River.

Mr. Gilberts evidence about the road trip to
    Toronto

[7]

Mr. Gilbert lived in a shelter in Montreal. He
    wanted to go to Toronto for New Years Eve, as he had never been out of the
    Montreal and Laval area. He testified that the appellant agreed to take him to
    Toronto in exchange for payment. He testified that the appellant told him that
    he had stolen the pickup. During their time together the appellant wanted to
    cash a cheque. Before going into the bank he told Mr. Gilbert to get out of the
    truck, and locked the doors because he did not trust Mr. Gilbert with the
    truck.

[8]

Mr. Gilbert testified that the appellant stole
    gas for the truck, then instructed him to place the stolen licence plates on
    the truck. Mr. Gilbert said he complied. Mr. Gilbert said the appellant drove
    the truck and began to nod off because of fatigue and drug consumption. Mr.
    Gilbert said he turned up the radio and tried to get the appellant to stay awake.
    Mr. Gilbert said he was the front passenger who jumped into the back seat to
    retrieve his cell phone which had been thrown there as a result of the erratic
    driving. Mr. Gilbert was apprehended near the shoreline at the marina,
    distraught, crying, frightened and injured. Mr. Gilbert said that the appellant
    ordered him to run, threatened him and pushed him to the ground, injuring his
    hand.

Decision of the trial judge

[9]

The trial judge rejected the appellants
    evidence because of several inconsistencies. The appellant said he was awake
    for the collision which occurred when police pursued them, however it was clear
    on the evidence that the collision occurred before police began their pursuit.
    The appellant testified that he recalled seeing the collision, but also that he
    only woke up on seeing five police cars in pursuit. The trial judge concluded
    that the appellant often tailored his evidence when he realized his evidence
    was illogical or inconsistent. The appellants credibility was adversely
    affected by a finding that he lied under oath about his address to try to get
    bail on an earlier charge and by his criminal record including crimes of
    dishonesty. He concluded that the appellant was intentionally vague and
    misleading. The trial judge found it made no sense that the appellant would
    have contemplated escaping by swimming into the St. Lawrence River in December
    had he only been guilty of the more minor crimes for which he admitted guilt.

[10]

On the other hand, after careful analysis, the
    trial judge found that Mr. Gilberts evidence was reliable,

Although Mr.
    Gilbert conceded that he was high on the date of these offences, and that he
    too had a criminal record for crimes of dishonesty, I found his evidence to be
    reliable. Mr. Gilbert provided his evidence in a clear and straight-forward
    manner. He was excited and nervous as he testified, as he remained fearful of
    the accused. I accept that he was approached by individuals who threatened to
    harm him and his family if he testified against the accused. Mr Gilbert was
    fearful of the accused at the trial, and when he ran with him to avoid police
    when ordered to do so by the accused, Mr. Gilberts demeanour upon arrest as
    described by the officers, support this finding.

Defence counsel
    argued that the evidence of Mr. Gilbert should raise a reasonable doubt as he
    had a motive to fabricate his evidence in order to avoid being charged or
    convicted of the driving offences. I have considered this motive in arriving at
    my ultimate conclusion that Mr. Gilbert was telling the truth. I found his
    evidence both credible and reliable.

Defence counsel
    pointed to the tablet belonging to Mr. Gilbert which was found on the floor on
    the drivers side of the vehicle. Mr. Gilbert could not explain this, other
    than to point to the fact that everything in the truck went flying when the
    accused struck the metal gate. I accept that this is what occurred when Mr.
    Gilbert jumped into the backseat to get his phone, his tablet remained in the
    front and ended up on the floor on the drivers side. The swerving of the
    vehicle and ultimate collision with the gate, caused the table to land in this
    area.

Mr. Gilbert
    testified that he did not know how to drive. I believed him. I find that he
    never drove the truck that day. There would have been no reason for Mr. Vining
    to allow him to drive. Mr. Vining testified that he let Mr. Gilbert drive
    because he chipped in for gas. I reject this evidence, as it is illogical.
    Mr. Gilbert did not know how to drive and Mr. Vining was not intimidated,
    frightened or threatened by Mr. Gilbert. He did not know this man. It is
    illogical that he would have let him drive in the circumstances, especially
    when he was going to such pains to remove the key and lock the door when he
    went into the bank for instance. Mr. Vining testified that he did not trust Mr.
    Gilbert with the truck. On the totality of the evidence, I find that it defies
    common sense and logic, that Mr. Vining would have allowed Mr. Gilbert to drive
    this stolen truck.

Mr. Gilbert
    readily conceded that he was a drug addict, that he had a criminal record, that
    he changed the licence plates. He did not minimize his evidence or tailor his
    evidence as he testified.

While I find that
    someone who is high on drug is generally a poor historian, I accept that Mr.
    Gilbert did not drive at all, because he could not drive, the vehicle was not
    his to drive, and the accused would not have entrusted the vehicle to him.

Mr. Gilberts
    evidence flowed in a logical fashion. He recalled details such as the precise
    location where he met the accused, near the McDonalds at St. Catherines and
    Papineau, the drugs each consumed, the type of cigarettes he provided to the
    accused, how much he paid the accused to drive him to Toronto, and many other
    important details. Mr. Gilbert did not exaggerate his evidence, and he was
    unshaken in cross-examination. He testified that there was no event with a
    prostitute, and that he did not enter the accuseds apartment. He was unshaken
    in cross-examination, on all of the key issues.

When his memory was refreshed on certain
    points, he readily admitted that he had forgotten certain things. For example
    he testified that he had no debts. When his statement to police was put to him,
    and specifically that he owed $200 and $500, he readily conceded that this was
    accurate. I find that the passage of time caused him to forget this detail. I
    found Mr. Gilberts evidence reliable.

[11]

She found that the evidence of the police
    officers describing Mr. Gilberts demeanour on arrest corroborated Mr.
    Gilberts evidence. Her analysis demonstrates that she was aware of the
    strengths and weaknesses of Mr. Gilberts evidence.

[12]

The trial judge concluded that the appellant was
    the driver of the stolen truck at all times, that he drove in a dangerous
    manner, failed to stop for police, and deliberately smashed through the marina
    gate, thereby committing mischief. He found that the appellant was, at the very
    least, a party to the theft of the pickup truck, but also found that the
    appellant stole the truck.

Arguments on appeal

[13]

The appellant argues that the trial judge
    misapprehended the evidence of Mr. Gilbert by failing to reconcile the finding
    that Mr. Gilbert did not drive with Mr. Gilberts evidence that at one point
    during the high speed chase, when Mr. Vining slammed on the accelerator and let
    go of the wheel, Mr. Gilbert said he grabbed the wheel and controlled the
    steering wheel for 20-25 seconds. He submits that Mr. Gilberts credibility was
    fatally undermined because Mr. Gilbert only mentioned for the first time at
    trial that he climbed back into the front seat during the chase and further
    undermined because Mr. Gilbert did not fully admit his past criminal conduct.
    Trial defence counsel did not suggest to the trial judge that these matters
    undermined Mr. Gilberts credibility. The appellant submits that the trial
    judge erred in inferring that Mr. Gilberts tablet went flying into the
    drivers side from the passenger side as a result of the forces exerted on the
    vehicle.

[14]

The appellant argues further that the trial
    judge failed to properly apply
R. v.

W.D.,
a requirement all the more acute when dealing with a
Vetrovec
witness who was high at the time of the events.

Analysis

[15]

Findings of credibility are entitled to
    deference. Watt J.A. explained in
R .v. Wadworth
, 2009 ONCA 716 at para. 66,

Resolution of credibility controversies is the
    daily fare of trial judges. Assessment of credibility is a difficult and
    delicate subject, often defying precise and complete verbalization. At bottom,
    belief of one witness and disbelief of another, in general or on a specific
    issue, is an alloy of factors, not a purely intellectual exercise.
The unique position of trial judges to see and hear witnesses,
    and the inestimable advantage they enjoy in the result in assessing witnesses
    credibility and the reliability of their evidence, cannot be squandered by
    unrealistic expectations of scientific precision in language used to describe
    the complex coalescence of impressions that effuse after watching and listening
    to witnesses and attempting to reconcile their renditions of critical events.
[Emphasis added, citations omitted.]

[16]

There was no misapprehension or uneven scrutiny of
    the evidence by the trial judge. The conclusions of which the appellant
    complains were all reasonably drawn from the evidence, and supported by
    detailed reasons. Mr. Gilberts evidence that he seized the steering wheel in a
    moment of panic when the appellant let go of it while flooring the accelerator
    could not reasonably be described as contradicting Mr. Gilberts own evidence
    that he did not drive. Mr. Gilbert was essentially homeless and carried all of
    his possessions with him; it is difficult to see how he could have had the
    means to drive. Mr. Vining had been driving and had had possession of the
    pickup since it was stolen.

[17]

Nor was there any misapprehension of the onus of
    proof, which was clearly stated and applied. The conclusion that the appellant
    had stolen the truck was reasonably open to the trial judge given her
    acceptance of Mr. Gilberts evidence that the appellant told him he had stolen
    the truck, and the appellants possession of the truck from the time it was
    stolen.

[18]

The appeal is accordingly dismissed.

J.C.
    MacPherson J.A.

G. Pardu
    J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wheeler, 2018 ONCA 1069

DATE: 20181221

DOCKET: C64753

Juriansz, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Wheeler

Appellant

Frank Addario and James Foy, for the appellant

Molly Flanagan, for the respondent

Heard: December 18, 2018

On appeal from the conviction entered on December 20,
    2016 by Justice Peter B. Hockin of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant appeals from his conviction under
    s. 172.2(2) of the
Criminal Code
and
    challenges the constitutionality of the mandatory minimum sentence.

[2]

The appellant engaged in a series of online
    conversations with a police officer who portrayed herself as a mother of two
    daughters, aged 12 and 5. She and the appellant exchanged sexually explicit talk,
    some of which involved the fictional 12-year old daughter. They eventually met
    at Tim Hortons where the appellant was arrested.

[3]

The appellant was charged with an offence under
    172.2(2) of the
Criminal Code
which provides:

(1)

Every person commits an offence who, by a means of telecommunication,
    agrees with a person, or makes an arrangement with a person, to commit an
    offence [listed in s. 151  here sexual interference with a child.]

[4]

Before trial, the Crown amended the original indictment to particularize
    the charge so that it alleged the appellant did agree to commit the offence.
    The amendment withdrew the allegation that he made an arrangement to commit
    the offence.
The issue before the court was whether the
    appellant agreed to commit sexual interference of a child. The fact of an
    agreement was therefore an essential element of the offence to be proved beyond
    a reasonable doubt.

[5]

The evidence included transcripts of graphic
    sexual talk and references to sexual activity between the appellant, the
    officer and her fictional daughter.

[6]

The appellant alleged that he did not make an
    agreement to have sex with the daughter and in any event, did not have the
    intent to go through with the matters discussed. He claimed it was all a
    fantasy and a game of internet chicken. The Crown alleged that the
    conversations disclosed both the agreement to have sex with the child and the
    intention to make the agreement.

[7]

It appears that the trial judge did not turn his
    mind to the elements of an agreement. At page 14 when discussing an agreement the
    trial judge said:

Cooperation or
    consent is the product of agree or an agreement in the section on a plain
    meaning of the words against the background of the purpose of the section, I
    interpret to mean any internet exchange, where the objective is to get
    anothers cooperation or consent to the commission of a designated offence.

[8]

An agreement is the coming together of two minds, not the
    objective by one party to get anothers cooperation.

[9]

In finding the appellant guilty, the trial judge
    did not make a finding that there was an agreement. Rather, he said page 17:

I accept that
    this [i.e. game of internet chicken] was [the] case at the beginning of his
    relationship with [the officer], but it changed quickly. On September 20, 2012,
    there were specific inquiries of [the officer] with respect to the child and
    her appearance. He understood at this point that his communicant lived in
    London. On September 25, 2012, there was explicit discussion of sexual activity
    at the communicants home, which could involve her daughter. He asked if her
    daughter was ready for sex. On September 27, 2012, there was an exchange of
    pictures.  That was a real event, not a fantasy.  He asked again if the womans
    daughter was ready for sex.  This was followed by a description of what this
    would involve.  There was a discussion of a date to meet.  And again, on
    September 28, 2012, and finally, On October 1, 2012, when it was agreed to meet
    the following day.

[10]

The Crown concedes that the trial judge did not expressly make a
    finding that there was an agreement to have sexual activity with the daughter. We
    are not persuaded by the Crowns submission that he did so implicitly. Simply
    put, there was no finding of an agreement by the appellant to commit sexual
    interference. This
was an essential element of the
actus reus
of the offence.

[11]

In
    light of this error, it is not necessary to consider the issues raised by the
    appellant with respect to
mens rea
and the sentence.

[12]

The
    appeal is allowed and a new trial is ordered.

R.G. Juriansz J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wiafe, 2018 ONCA 1045

DATE: 20181217

DOCKET: C64689

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Wiafe

Appellant

Delmar Doucette, as duty counsel

Alexander Wiafe, in
    person

Ghazala Zaman, for the respondent

Heard: December 12, 2018

APPEAL BOOK ENDORSEMENT

[1]

Mr. Wiafe appeals his sentence of five years on his conviction for fraud
    over $5,000.  He submits that the sentence is excessive, especially in light of
    civil penalties that Canada Revenue Agency has levied rising out of the same
    events.  We do not agree.

[2]

This was Mr. Wiafes seventh conviction for fraud over.  On his two last
    convictions he was sentenced each time to three years.  The sentencing judge
    was entitled in his sentencing discretion to increase the sentence to reflect
    that reality, among others.

[3]

The issue of the civil penalties is of limited relevance to the sentence
    in these circumstances and also in light of the reality that these penalties
    are levied against Mr. Wiafes company, not against him personally.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Robson v. The Law Society of Upper Canada, 2018
    ONCA 1076

DATE: 20181221

DOCKET: C65245

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

BETWEEN

Paul
    Alexander Robson

Plaintiff (Appellant)

and

The Law Society of Upper Canada, Zeynep Onen,
    Mark Pujolas, Lisa Freeman
and Jan Parnega-Welch

Defendants (Respondents)

Paul Robson, acting in person

Richard Watson, for the appellant (on one issue only)

Sean Dewart and Ian McKellar, for the respondents

Heard: November 13, 2018

Supplementary reasons
    to
Robson v. The Law Society of Upper Canada
, 2018 ONCA 944, released
    on November 23, 2018.

REASONS FOR DECISION

[1]

Reasons for Decision in this appeal of an order striking the appellants
    fresh as amended statement of claim were released by the court on November 23,
    2018:
Robson v. The Law Society of Upper Canada
, 2018 ONCA 944. The
    court allowed the appeal, except as it related to one of the respondents.

[2]

Before the order was issued or entered, the respondents sent a letter to
    the court requesting it to re-open this appeal and withdraw, alter, or modify
    its decision. They argue that:

1.

The court misapprehended the timing of the respondents demand for
    particulars in a manner that led the court to wrongly find fault with the
    motion judges reasons;

2.

The court misapprehended the history of the appellants bankruptcy
    proceeding in a manner that led the court to mistakenly conclude that the
    appellant could advance an allegation that the respondents made use of the
    bankruptcy proceeding in a malicious fashion; and

3.

The court conflated oral submissions made by the appellant with the
    content of these pleadings in a manner that led the court to conclude that the
    appellant could advance an allegation that he was targeted by the respondents
    on the basis of his being a thorn in the side of the Law Society of Ontario.

[3]

The appropriate procedure for any such request is by motion, not by
    correspondence. However, in order to save the parties further time and expense,
    we are prepared to deal with the issues raised in these reasons.

[4]

We reject the second and third arguments made by the respondents.

[5]

As to the respondents second argument, the court did not misapprehend
    the history of the appellants bankruptcy proceeding. We agree with the
    respondents that Doherty J.A. did not find that Lax J.s judgment was not
    correct and many of the facts relied upon her were inaccurate. The court did
    not state otherwise.

[6]

As to the respondents third argument, the court simply acknowledged the
    oral submissions the appellant made on appeal. The court did not conflate the
    appellants submissions with the content of his pleadings.

[7]

With respect to the first issue, counsel for the respondents now correctly
    points out the timing of the respondents demand for particulars. As the
    respondents submit, they made their demand for particulars before an earlier
    motion, as a result of which the appellants claim was struck with leave to
    amend.

[8]

Nonetheless, we are not persuaded that this is one of the rare
    circumstances where it is in the interests of justice to withdraw the reasons
    of the court and re-hear the case on the merits:
Pastore v. Aviva Canada
    Inc.
, 2012 ONCA 887, at para. 9. Regardless of the timing of the respondents
    demand for particulars, we remain of the view that the motion judge erred in
    law by requiring an unnecessarily high level of particularization. The result
    of the appeal would have been the same. This is not a case where a serious
    injustice will result if the court refuses to re-open the appeal.

[9]

The request to re-open the appeal in this case is denied.

Alexandra Hoy
    A.C.J.O.

K. Feldman J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Son v. Khan, 2018 ONCA 984

DATE: 20181204

DOCKET: M49834 (C65694)

Lauwers J.A. (In Chambers)

BETWEEN

Young-Hew Son and Young Son

Respondents

and

Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan

Appellants

Daud Ahmad Khan, in person

Fawad Khan, in person

Ishaq Ahmad Khan, not present

David Nuri, for the respondents

Heard: November 28, 2018

REASONS FOR DECISION

[1]

I begin by explaining the context. It would be fair to describe this
    litigation as unduly complex and confused, largely because the appellants are
    floundering in the absence of legal advice. Kurz J. explained the history in
    his decision striking their defences, reported at 2018 ONSC 284. He noted, at
    para. 6:

Unfortunately, the Khan
    Defendants' response exposes one major problem. They have produced virtually no
    evidence to support their claims regarding this motion. All that I am left with
    is evidence of the Plaintiff regarding their obtuseness and unwillingness to
    obey orders. Those orders include documentary production orders, an order to
    attend for cross-examinations, and costs awards. For the reasons that follow I
    find that it is both appropriate and in the interests of justice to invoke the
    exceptional remedy of striking the pleadings of the Khan Defendants.

[2]

Kurz J. added, at para. 97:

Accordingly, I find that allowing
    the Khan Defendants to continue acting in this litigation as if they are not
    bound by court orders would damage respect for the administration of justice in
    Ontario. At some point, enough is enough. I find that now is enough.

[3]

The appellants did not appeal this order.

[4]

There is an appeal scheduled to be heard in this court on February 8,
    2019. It is from the order of Seppi J., dated June 26, 2018, which declared
    that the respondents are vexatious litigants within the meaning of s. 140 of
    the
Courts of Justice Act
 and accordingly may not institute any
    proceeding in any court except by leave of a judge of the Superior Court of Justice.

[5]

The appellants seek a stay of the writ of seizure and sale until the
    appeal is heard on the vexatious litigants order on February 8, 2019. They also
    ask for an order giving them six months time to arrange placement financing to
    pay out the judgments against them that survive any appeal, and they ask that
    the order be made lifting the Certificate of Pending Litigation so that they
    can take out a second mortgage to pay the cost award made by Ricchetti J. They
    note that there are four sick people who live in the house and will have
    nowhere to go if it is sold.

[6]

There are three problems with the request. First, although permission
    from a Superior Court judge was not required for the appellants to appeal the
    order of Seppi J., it was required for them to bring the motion for a stay of
    the writ of seizure and sale. This courts decision in
Attorney General of
    Ontario v. Reyes
,
2017
    ONCA 613 makes it clear that apart from the argument of the appeal of vexatious
    litigant order itself, any motions in that proceeding require leave of a
    Superior Court judge. They did not get permission.

[7]

The second problem is that the appellants seek to stay the execution of
    a writ of seizure and sale that arises in a different proceeding. Ricchetti J. permitted
    a CPL to be registered against the appellants property by order dated November
    2, 2016. He fixed costs in the amount of about $25,000. The order was not
    appealed. The costs order was sent out for execution. The writ of seizure and
    sale was issued on April 11, 2018. By registered mail in September 2018, the
    appellants were advised that the house would be sold to satisfy the costs
    award.

[8]

The courts decision in
Reyes
requires the appellants to obtain
    leave of a Superior Court judge to bring a motion for a stay of the writ of
    seizure and sale. The difficulty with that request for leave is that no appeal
    was brought from the order of Ricchetti J.

[9]

The third problem is that after the pleadings were struck the
    respondents in the appeal obtained a default judgment in the main action from
    Justice Petersen, dated August 14, 2018, which requires the appellants to pay
    about $200,000.  Remarkably, the appellants did not get a copy of the judgment
    until November 23, 2018, as conceded by Mr. Nuri after conferring with his
    principal. The appellants wish to seek leave to appeal the judgment of Petersen
    J., now that they know of its existence. That is also a matter for which they
    require the leave of a Superior Court judge, but do not have it.

[10]

It
    is clear that the vexatious litigants order under appeal to this court is
    hampering any other appeals and the resolution of the basic dispute between the
    parties. In the unusual circumstances of this case I exercise my authority
    under s. 134 (2) and grant a stay of the execution stay of the writ of seizure
    and sale until thirty days after the appeal is heard on the vexatious litigants
    order. The appellants would be well advised to hire a lawyer or get
pro
    bono
assistance.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Williams (Re), 2018 ONCA 1087

DATE: 20181228

DOCKET: C65401

Juriansz, Benotto and Trotter JJ.A.

IN THE MATTER OF:  Jerome Williams

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Adam Wheeler, for the Crown

Heard and released orally: December 21, 2018

On appeal against the disposition of the Ontario Review
    Board dated April 23, 2018.

REASONS FOR DECISION

[1]

The appellant was found not criminally responsible on account of a
    mental disorder on December 22, 2011 on charges of robbery x 2, uttering threats
    to cause death or bodily harm, assault causing bodily harm, possession of
    property obtained by crime, and disguise with intent. The appellant has been
    under the jurisdiction of the Ontario Review Board since then.

[2]

The appellant has diagnoses that include schizophrenia, borderline
    intellectual functioning, cannabis use disorder and antisocial traits.

[3]

The appellant spent the year under review on the General Forensic Unit
    of the Hospital. While he had a relatively good year, he had a number of
    positive urine drug screens. Significantly, there was evidence of decompensation
    after one positive result. He exhibited poor insight into his substance use
    disorder and the impact of drug use on his mental health. There was some
    uncertainty whether he wished to be transferred to CAMH or remain in Hamilton,
    and whether such a transfer would be in his interest.

[4]

The Board accepted the unanimous opinion of his treatment team that he
    continues to pose a significant threat to the safety of the public. The Board
    found that this threat was based on his clinical condition, markedly limited
    insight into his mental disorder, the risks inherent in the abuse of substances
    which were related to alterations in his mental state and behaviour, and his
    conduct in a number of respects that made community living inappropriate.

[5]

The Board decided that the least onerous and the least restrictive
    disposition was that the appellant remain on a detention order in Hamilton with
    an opportunity to have passes up to seven days when he is ready.

[6]

Given his position before the Board and the evidence before the Board,
    especially of his decompensation after drug use, we are not persuaded there was
    a realistic basis on which the Board could order a conditional discharge.

[7]

In our view, the Boards decision is not unreasonable and is
    well-supported by the evidence. We have no basis to interfere. The appeal is
    dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.