COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gregoire, 2018 ONCA 880

DATE: 20181102

DOCKET: C62920

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bobby William Kenneth Gregoire

Appellant

Breana Vandebeek, for the appellant

Jill Cameron, for the respondent

Heard: October 29, 2018

On appeal from the sentence imposed on November 10, 2015
    by Justice J. Elliott Allen of the Ontario Court of Justice.

Paciocco J.A.:

[1]

Bobby Gregoire was convicted of manslaughter after pleading guilty in
    the death of his 53-day-old son, Chase. He was sentenced to five years and ten
    months of incarceration, after being credited with two years and two months of
    pre-sentence custody, based on credit of 1.5 days for each day of pre-sentence
    custody actually served.

[2]

Mr. Gregoire seeks leave to appeal his sentence. He contends that the
    sentencing judge made four distinct errors: (1) unfairly minimizing the
    mitigating effect of the guilty plea; (2) relying on Mr. Gregoires failure to
    advise medical personnel that Chase suffered a head injury; (3) finding,
    contrary to the agreed statement of facts, that Mr. Gregoire shook Chase so
    hard that he died; and (4) concluding that sentencing judges do not have
    authority to provide credit in excess of a 1.5:1 ratio for pre-sentence credit
    for harsh pre-sentence detention conditions.

The Mitigating Effect of the Guilty Plea

[3]

In my view, the sentencing judge did not unfairly minimize the mitigating
    effect of the guilty plea. He recognized expressly the mitigating effect of a
    guilty plea, and exercised his discretion in quantifying its impact. The Crown
    initially sought an eight to ten year sentence. The sentencing judge concluded
    that the Crowns subsequent decision to recommend the lower end of that range adequately
    reflected the guilty plea.

[4]

I would not interfere with that discretionary determination. The
    exercise of that discretion was not unreasonable and no errors of principle
    occurred in quantifying the impact of the guilty plea.

[5]

Specifically, the sentencing judge was entitled to consider that while
    the plea was early relative to the laying of the charge, it was a late
    demonstration of remorse, occurring nearly three years after the event.

[6]

The sentencing judge was also entitled to take into account that
    initially Mr. Gregoire misled medical personnel about the cause of Chases
    distress by claiming the child had been choking on food, when he knew that Chase
    had suffered a head injury. This conduct helped contextualize the remorse that
    the guilty plea represented, and gave context to what a mitigated, fit sentence
    would look like.

Reliance on the Failure to Explain the Head Injury

[7]

I do not agree that the sentencing judge unduly relied on Mr. Gregoires
    failure to explain that Chase suffered a head injury. The sentencing judge was
    required to determine the gravity of the offence, and the degree of Mr.
    Gregoires responsibility. Mr. Gregoires breach of trust in preferring his own
    interests to those of Chase when Chase was in medical need is relevant to both
    considerations, even in the absence of evidence that this conduct contributed
    to Chases death.

[8]

Nor does the sentencing judges reasoning disrespect the right to
    silence in the circumstances of this case. Mr. Gregoire did not remain silent.
    He misled medical personnel.

Misapprehending the Assault

[9]

In my view, the sentencing judge did not find, contrary to the agreed
    statement of facts, that Mr. Gregoire shook Chase so hard that he died. The sentencing
    judges observation that the sentence must express the revulsion that society
    feels when a parent  loses their temper and shakes a distraught baby so hard
    they die does not contradict the agreement that moderate force would be sufficient
    to cause Chases injuries. The sentencing judge was not saying that hard force
    was used. He was simply saying that the force used was hard enough to cause
    death, which manifestly it was.

The Harsh Detention Conditions

[10]

At
    the time of sentencing, Mr. Gregoire asked for pre-sentence credit beyond 1.5:1
    because of the harsh conditions in which he was held. The sentencing judge
    declined, expressing the view that he did not have the authority to give credit
    beyond 1.5:1. Subsequent to Mr. Gregoires sentencing, this court recognized in
R. v. Duncan
, 2016 ONCA 754, that sentencing judges in fact have the
    authority to give extra credit beyond 1.5:1 for pre-sentence custody served in
    harsh conditions.

[11]

I
    have considered whether we should reduce Mr. Gregoires sentence because of the
    number of days he spent in lockdown, and in overcrowded cells. On the record
    before us, I would not do so. In all of the circumstances, the eight year
    global sentence that has been imposed is fit.

[12]

Leave
    to appeal is therefore granted, but the sentencing appeal is dismissed. No
    errors occurred affecting the sentence imposed, and that sentence was not
    manifestly unfit.

David
    M. Paciocco J.A.

I
    agree. J.C. MacPherson J.A.

Miller J.A. (Concurring
)

[13]

I agree with my colleagues reasons, but write
    briefly to highlight an issue that may warrant attention in a future appeal.

[14]

The
    parties rely on
R. v. Duncan
for the proposition that sentencing
    judges, where circumstances warrant, have authority to give sentencing credit
    in addition to the 1.5:1 credit established by s. 719 (3.1) of the
Criminal
    Code
. They disagree, however, as to what those circumstances are.

[15]

It
    seems to me that further guidance is needed from this court as to what
    circumstances may justify enhanced credit. This may also require an explanation
    of the doctrinal foundation for the practice of granting enhanced credit
    outside of s. 719(3.1), with specific reference to the interpretation of s.
    719(3.1) provided by the Supreme Court of Canada
in
R. v. Summers
, [2014] 1 S.C.R. 575 and other
    judgments. Given the absence of submissions on these issues, it would not be
    appropriate to address them in the present appeal.

Released: November 2, 2018 (J.C.M.)

B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Griffith, 2018 ONCA 875

DATE: 20181101

DOCKET: FILE C63731

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrell Griffith

Appellant

Paul Calarco, for the appellant

Jacob Sone, for the respondent

Heard:  October 29, 2018

On appeal from the conviction entered on September 21,
    2016 by Justice Johanne Morissette of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Terrell Griffith, was convicted of robbery and using an
    imitation firearm in the commission of that offence by Morissette J. of the
    Superior Court of Justice. He was sentenced to six months incarceration for
    the robbery offence and 12 months consecutive for the use firearm offence. He
    appeals the convictions.

[2]

Around 2:00 a.m. on March 5, 2015, two men robbed a taxi driver by the
    Thames River in London. One of the men used an apparent handgun. The robbers
    fled toward the partially frozen river. Police responded quickly to the taxi
    drivers call for help. On the other side of the river, the police spotted the
    appellant, who matched the general description of one of the robbers. The
    appellant ran away from the police, jumping over a series of fences into the
    backyards of houses. The police caught him with the help of Bosco, a tracking
    dog. The appellants construction-type boots, socks and pant legs were drenched
    with water.

[3]

Bosco was then taken to the scene of the robbery. He found the
    appellants scent trail. The scent trail led from the area of the robbery to
    the edge of the river and then from the opposite bank to where the appellant
    had first been spotted by police. There were footprints in the snow that went
    the same way as the appellants scent trail. A replica handgun resembling the
    one used in the robbery was found in the snow a few steps away from those
    footprints.

[4]

The appellant did not testify and did not call any evidence.

[5]

The trial judge found the appellant guilty of both offences. She said in
    part:

The issue for this court is identification.

The robbery occurred between 2:09 and 2:12 a.m., when the
    police received a tone alert from the cab. At 2:20, therefore, approximately
    eight minutes later, a silhouette was seen by Officer Pouliot running up the
    bank of the west side of the river, through the bush, and crossing at 54 Argyle
    Street. He saw the silhouette run into the yard, and saw him go over the fence.

Approximately one to two minutes later, Officer Stanley
    deployed Bosco, the tracking dog, in the area where the silhouette was last
    seen, and he fixated on a fresh human scent and followed it into the yard, over
    the fence and into 39 St. Andrews yard, and over another fence of a chain-link
    type, into 56 Argyle Street property, where at 2:22 a.m. Officer Stanley called
    out, Got the suspect. The accused was arrested at 2:23 a.m.

So based on the totality of the evidence, the timeline, the
    description of the perpetrator, the direct evidence of flight from police and
    jumping fences, the firearm being found in the locality where the accused was
    seen running, the evidence from Constable Stanley of Boscos dialed-in scent of
    a fresh human scent can only be rationally and logically be inferred that it
    was the accused who robbed Mr. Abbasey and walked with his accomplice westbound
    on Ann Street, as Mr. Abbasey saw them do, and then ran down toward the river.
    At that point, there is no evidence of where and how the gun got across the
    river, except that the accused was seen running in that same area before he was
    apprehended. I have no reasonable doubt that the accused is one of the
    perpetrators in the robbery and is a party to the offence of using an imitation
    firearm with his accomplice. Accordingly, I find you guilty on both counts.

[6]

The appellant appeals the convictions on four grounds.

[7]

First, the appellant contends that the trial judge erred by admitting
    and relying on the dog tracking evidence. In her ruling, the trial judge said:

For the purposes of the admissibility of the evidence, I
    believe that Officer Stanley has particularly highlighted the success rate, not
    within the field but within the testing and the recertification of the higher
    standard by London Police Services. So for the admissibility, per se, I will
    allow it. Of course, then, there is cross-examination with respect to the
    evidence itself that will go to the issue of weight and what I apply to it. So
    I will allow the evidence to be admitted.

[8]

The appellant submits that the trial judge erred by concluding that
    Boscos test and certification scores were enough to warrant admission of the
    evidence relating to his role in the apprehension of the appellant. More was
    needed, specifically evidence relating to Boscos performance in the field in
    actual cases.

[9]

We do not accept this submission. In our view, the preconditions for
    admissibility were met in this case. Bosco had been a tracking dog for three
    years. He received extensive training and evaluation throughout the three year
    period. The standard he reached and maintained was the London Police Service
    standard which is even higher than the provincial standard. Officer Stanley had
    logs and statistics for all the training Bosco had done. Bosco was always
    successful in tracking scenarios. Indeed, during the relevant period, Officer
    Stanley led the unit in statistics, including the time he spent with Bosco.
    Finally, Officer Stanley gave detailed evidence about Boscos performance in
    this case. These factors, taken together, easily make the evidence relating to Boscos
    tracking in this case admissible within the test set out by Rosenberg J.A. in
R.
    v. Holmes
(2002), 62 O.R. (3d) 146 (C.A.), at para 37.

[10]

Second,
    the appellant submits that the trial judge made inappropriate use of post-offence
    conduct evidence, specifically the appellants flight from the police. She
    should have considered other possible explanations for the flight, including an
    irrational or alcohol induced fear.

[11]

We
    are not persuaded by this submission. There was no defence evidence on this
    issue, or on any other issue. As the trial judge said, there is no evidence of
    fear of police. The only reasonable inference in all of the circumstances was
    that the appellant was fleeing the robbery, to avoid being implicated in it.

[12]

Third,
    the appellant asserts that the trial judge minimized the evidence relating to
    the appellants intoxication to the point of non-existence, thus failing to
    recognize that there was a fundamental inconsistency between his highly
    intoxicated state and the robbery suspects, who were described as showing no
    signs of intoxication.

[13]

We
    disagree. The trial judge was entitled to reject the defence position that the
    appellant was quite heavily intoxicated by alcohol based on the evidence
    relating to the appellants physical appearance and physical activity.

[14]

Fourth,
    the appellant submits that the trial judge misapprehended the evidence relating
    to the appellants location once the police arrived on the scene.

[15]

We
    do not accept this submission. The trial judges description of the evidence
    relating to the suspects location on both sides of the river was essentially
    accurate.

[16]

The
    appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.E., 2018 ONCA 879

DATE: 20181102

DOCKET: C64583

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

H.E.

Respondent

Christine Bartlett-Hughes, for the appellant

Anne-Marie McElroy, for the respondent

Heard: November 1, 2018

On appeal from the acquittal entered on October 17, 2017
    by Justice Robert J. Smith of the Superior Court of Justice, sitting without a
    jury, with reasons reported at
2017 ONSC 4277
.

REASONS FOR DECISION

[1]

The Crown is appealing H.E.s acquittal on the charge of sexually
    assaulting the complainant, his wife. During the trial the complainant
    testified that in 2002 Mr. E. pulled her onto the couch, forcibly removed her
    clothing, and forced intercourse on her, despite that she asked him to stop at
    least three times. Mr. E. testified and denied that he had any sexual contact
    with her on the occasion in question.

[2]

After accepting the complainants testimony that both she and Mr. E.
    believed that, as his wife, she did not have the right to refuse to have sex
    with him, the trial judge explained the acquittal by expressing a reasonable
    doubt about whether Mr. E. had the required
mens rea
for the offence. In
    elaboration, he cited the complainants testimony that she had lived in Canada
    since 1989, did not make any complaint until the parties had a dispute
    involving access [in circumstances] where the complainant continued to have sex
    with the accused from the time of the incident in 2002 until January 1, 2013 a
    period of approximately 11 years.

[3]

Mr. E. concedes that the trial judge committed reversible errors in this
    reasoning. He acknowledges that to the extent the trial judge based his acquittal
    on Mr. E.s and the complainants shared belief that the complainant could not
    refuse to have sex with him, that belief would be a mistake of law that cannot
    form the foundation for an honest but mistaken belief in consent defence. He is
    correct. To avoid conviction based on an honest but mistaken belief in consent,
    the accused must believe in a state of facts that amount to consent according
    to law
: Pappajohn v. The Queen
, [1980] 2 S.C.R. 120, at pp. 134,
    147-148;
R. v. Barton,
2017 ABCA 216, 386 C.R.R. (2d) 104, at paras.
    245, 254, leave to appeal to S.C.C. granted, [2017] S.C.C.A. No. 387, appeal
    heard and reserved October 11, 2018. A complainants belief that she must
    submit does not amount to the voluntary agreement required by s. 273.1(1).

[4]

Mr. E. also agrees that there was no air of reality to the honest but mistaken
    belief in consent defence because the diametrically opposed versions of events
    he and the complainant provided cannot be spliced together to give rise to a
    realistic prospect that Mr. E. could have mistakenly believed that the complainant
    was consenting:
R. v. Davis
, [1999] 3 S.C.R. 759, at para. 85. This
    was a credibility case in which Mr. E. did not raise the honest but mistaken
    belief in consent defence during the trial and it should not have been
    considered.

[5]

Mr. E. further recognizes that the factors cited by the trial judge in
    explaining his reasonable doubt about Mr. E.s
mens rea
logically have
    no bearing on Mr. E.s state of mind. Leaving aside controversies about whether
    these factors were even appropriate for consideration, they relate either to
    the complainants credibility or the
actus reus

element of her
    consent, but not to Mr. E.s
mens rea
.

[6]

The parties therefore agree that the appeal must be allowed and the
    verdict of acquittal set aside. The Crown has chosen not to ask this court to
    substitute a verdict of guilt. This is an appropriate concession because there
    were evidentiary errors made by the trial judge to the detriment of Mr. E.,
    including permitting the Crown to present evidence about other occasions when
    Mr. E. is alleged to have sexually assaulted the complainant without conducting
    a
voir dire

to determine the admissibility of this
    discreditable conduct evidence.

[7]

We would therefore allow the appeal, set aside the acquittal, and order
    a new trial.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Headley, 2018 ONCA 915

DATE: 20181115

DOCKET: C62209

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Headley

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Avene Derwa, for the respondent

Heard: October 4, 2018

On appeal from the convictions entered on March 11, 2016,
    by Justice K. Barnes of the Superior Court of Justice, sitting with a jury.

Lauwers J.A.:

[1]

The appellant was convicted of six counts of
    fraud over $5,000 (three counts against Deborah Lo, two counts against Glenford
    Jones, the appellants half-brother, and one count against Scotiabank), one
    count of uttering a forged document (an IBM invoice) and one count of
    personation (for impersonating Mr. Jones). He was sentenced to four years in
    jail, restitution and a fine in lieu of forfeiture. The total loss was just
    over $600,000. He appeals his conviction and seeks a new trial.

[2]

The appellant raises two grounds of appeal:
    First, the trial judge erred in admitting the hearsay evidence of the
    Scotiabank account manager, Dean Karahojitis, at the trial under s. 715(1) of
    the
Criminal Code
,
because doing so was fundamentally unfair to
    the appellants right to full answer and defence. Second, the trial judge
    failed to relate the large volume of oral

and documentary evidence to
    the individual counts in his jury charge. I address each issue after setting
    out the factual background. I would dismiss the appeal.

The Factual Background

[3]

The appellant was a financial advisor. He
    controlled a number of financial companies, including Laers Inc., Laers LPC,
    and 1590 Group Inc. He was alleged to have defrauded two clients: his friend
    Deborah Lo and his half-brother Glenford Jones. Ms. Lo lost $350,000 in what
    the appellant portrayed as an investment in Gametronics gone bad. The jury
    found that it was a fraud. Mr. Jones lost $11,826.73 because the appellant
    cashed in his RRSP and took the money. He also lost $35,340 on his investment
    in Gametronics. Convictions for these frauds are not seriously challenged by
    the appellant.

[4]

The heart of this appeal is the Scotiabank
    fraud. The appellant was alleged to have personated Mr. Jones and used a
    fraudulent IBM invoice and other documentation in order to obtain from
    Scotiabank $250,000 advanced as a loan and line of credit, to be used in part
    to finance the acquisition of an IBM computer server (the Laers loan). The
    substantiating documents included insurance, an invoice for the purchase of the
    IBM server, and the unaudited financial statements of Laers Inc. The documents,
    all fakes, were provided to Mr. Karahojitis by Jones.

[5]

Mr. Karahojitis testified at the appellants
    preliminary inquiry but died before trial. He testified that he met Jones
    before the loan was made. He also testified that he and his superior Wayne
    Ellis met with Jones in August 2005 after the Laers loan was in arrears, when
    Jones showed him evidence of assets of over $400,000 with TD Bank. Mr.
    Karahojitis identified the appellants Ministry of Transportation (MTO)
    picture as being that of Mr. Jones, but did not recognize Mr. Jones actual MTO
    picture. This testimony supported the Crowns theory that the appellant was
    personating Mr. Jones in order to secure the loan from Scotiabank.

[6]

Mr. Karahojitis testified that he did his due
    diligence by inspecting the server at Mr. Jones business address, by
    contacting IBM and verifying the transaction, and by investigating Laers Inc.s
    financial statements that were purportedly prepared by Val Purushothaman,
    Chartered Accountant. However, Mr. Purushothaman denied preparing these
    statements. IBMs head of investigation denied that Mr. Karahojitis spoke to
    IBM about the server; there was no such server to be inspected.

[7]

Mr. Karahojitis also admitted he improperly kept
    client files at home. Among the items found at his home was the second
    fraudulent IBM invoice. It was contained in the documents disclosed by the
    Crown before the preliminary inquiry. It was located at Tab 18 of the Crowns
    disclosure book and labeled as Documents found from Dean Karahojitis
    residence.
[1]
Mr. Karahojitis was not questioned about the second fraudulent IBM invoice,
    although defence counsel cross-examined him extensively and impeached his testimony.

[8]

The second IBM invoice, which was not referred
    to at the preliminary inquiry, assumed some importance at trial. The fact that
    Mr. Karahojitis was no longer available to be cross-examined on this document
    was raised by trial defence counsel (who was not counsel at the preliminary
    inquiry) three times: in a pre-trial motion, during the trial, and in an
    application for a mistrial. This leads to the first issue.

Issue One: Did the trial judge err in admitting Mr. Karahojitis
    hearsay evidence at the trial under s. 715(1) of the
Criminal Code
?

[9]

Mr. Karahojitis died before trial. The Crown was
    obliged to bring a pre-trial motion to admit his preliminary inquiry testimony
    under s. 715(1) of the
Criminal Code
in order
    to use his evidence in the appellants prosecution. The defence agreed that the
    testimony met the statutory pre-conditions in s. 715(1), but argued that the
    judge should refuse to admit the testimony using his residual discretion,
    because the admission of the testimony would undermine trial fairness.

[10]

The governing principles regarding both the
    application of s. 715 of the Code and the application of the trial judges
    residual discretion were canvassed extensively by Watt J.A., in
R.
    v. Saleh
, 2013 ONCA 742, 303 C.C.C. (3d) 431, and by
    Brown J.A. in
R. v. Jones-Solomon
, 2015 ONCA
    654, 329 C.C.C. (3d) 191.

[11]

Watt J.A. noted in
Saleh
, at paras. 77-78, that among the factors to be considered by the
    trial judge in the exercise of the residual discretion to exclude evidence
    admissible under s. 715 (1) are the crucial nature of the evidence itself and
    the crucial nature of the credibility of the witness whose evidence is
    tendered for admission. He added that the circumstances in which the evidence
    may be excluded are comparatively rare. The appellant argues that this is one
    such rare case.

The Pre-Trial Motion

[12]

Trial defence counsel raised the issue of the
    second fraudulent IBM invoice in his argument opposing the admission of Mr.
    Karahojitis testimony at trial under s. 715(1) of the Code. If the invoice
    really did come from Mr. Karahojitis home, then it could have been used to
    impeach him in two ways. First, the invoice was addressed to 1590 Group Inc.
    (one of Mr. Headleys companies), potentially contradicting Mr. Karahojitis
    testimony that he had no knowledge of this company. Second, there was no
    apparent reason why Mr. Karahojitis should have had this second fraudulent
    invoice in his possession unless he was complicit in the fraud. The defence
    theory was that Mr. Karahojitis actually met with the real Mr. Jones and that
    the two of them worked together to defraud Scotiabank.

[13]

Crown counsel was not prepared to admit that the
    second IBM invoice was found at Mr. Karahojitis residence until this was
    confirmed by the investigating officer. However, Crown counsel said he was
    satisfied that the invoice was in the Crown disclosure and had come from Mr.
    Ellis.

[14]

Defence counsel expressed the view that second
    IBM invoice had been found in Mr. Karahojitis residence, but said he was
    content with the Crowns answer. Defence counsel also stated his view that it
    would be getting closer to fairness if the judge gave a jury instruction that
    the defence had not had an opportunity to cross-examine Mr. Karahojitis on this
    document and combined this with a

Vetrovec
warning.

[15]

The trial judge granted the Crowns application
    to admit Mr. Karahojitis preliminary inquiry testimony at trial under s.
    715(1) of the Code, and said he would give reasons in writing at a later date.
    He stated:

I am not going to
    write my reasons because I havent had a chance to do that. I am going to,
    these are not my reasons but just to give you an idea of the ballpark. I am
    going to permit, I am going to grant the Crown's application and the
    expectations that the jury receive the usual instructions and Ill set it out
    as we discussed. And if the evidence comes out the way in which the defence has
    said it's going to come out I am inclined to give a
Vetrovec
with respect to
    him, all right. So I am inclined to give a
Vetrovec
with respect to him and that
    forms an important component of my reasons. So at least you have an idea of the
    parameters with respect to that. That will allow us to be able to start the
    trial.

[16]

The trial judges written reasons arrived
    shortly before the argument of the appeal but this court did not consider them,
    nor did counsel refer to them in oral argument.

Trial

[17]

Partway through the Crowns case, on February
    11, 2016, defence counsel again raised the issue of the second IBM invoice.
    Crown counsel repeated that he did not know where it had been found. Defence
    counsel pointed out that Tab 18 was labeled Documents found from Dean
    Karahojitis residence and asked the Crown to make further inquiries. Crown
    counsel said he had already done so and would again, but reiterated that he thought
    the documents had come from Mr. Ellis.

[18]

The defence then called Mr. Ellis, who was
    cross-examined by the defence as a hostile witness. He testified that Mr.
    Karahojitis was fired for violating bank policies and poor performance. Mr.
    Ellis agreed that he had a meeting with Jones and Mr. Karahojitis after the
    Laers loan went into arrears. He identified the appellant as Jones and did
    not recognize Mr. Jones genuine MTO photograph.

[19]

The defence also called Mr. Karahojitis ex-wife
    Ms. Skordakis. She testified that she returned a large quantity of bank
    documents to Mr. Ellis from Mr. Karahojitis home shortly after he died. Inside
    one of those boxes was the second IBM invoice, an application for banking
    services completed by the appellant, and multiple pieces of the appellants ID.
    The defence called both Mr. Ellis and Ms. Skordakis to prove where the key
    documents came from, but neither recalled having seen these documents.

[20]

On February 23, 2016, during the defences case,
    defence counsel raised the second IBM invoice again and said he would bring a
    motion to stay the Scotiabank charges. After receiving a copy of the index for
    Tab 18 of the Crown disclosure from the defence, the Crown finally conceded
    that the documents had in fact been retrieved from Mr. Karahojitis home.

The Mistrial Application

[21]

The next day the defence applied for a mistrial,
    and/or a stay, and to reopen the s. 715(1) application. Defence counsel argued
    that the Crowns concession contradicted and nullified Mr. Karahojitis
    preliminary inquiry testimony. He also asserted that had the Crown not required
    the defence to establish continuity of possession of the second invoice, he
    would not have called Mr. Ellis to testify.

[22]

The trial judge maintained his original ruling
    on the s. 715 application and dismissed the mistrial and/or stay application.
    He stated that he was not satisfied that the timing of the revelation of the
    source of the second IBM invoice and associated documents adversely affected
    the appellants ability to make a full answer and defence. The trial judge
    considered that a strong
Vetrovec
warning
    would be sufficient and he would point out the fact that the documents were
    found in Mr. Karahojitis residence in the
Vetrovec
warning. He also expressed his view that the information about the
    source of the documents, which took the form of an agreed statement of fact,
    enhanced the defences position that Mr. Karahojitis had framed the appellant
    and was complicit in the offence.

Discussion

[23]

The trial judges decisions now being challenged
    were discretionary and attract appellate deference:
Saleh
, at paras. 87, 90;
Jones-Solomon
,
    at para. 46.

[24]

The appellant asserts that his trial counsel
    would not have called Mr. Ellis to testify if the Crown had admitted that the
    second invoice came from Mr. Karahojitis residence. This is because the
    defence had a problem with Mr. Ellis evidence: although Mr. Ellis could
    establish the continuity of the second IBM fraudulent invoice linking Mr.
    Karahojitis to the fraud, he could also provide what the appellant describes as
    harmful evidenceidentifying the Appellant as Glenford Jones and denying
    that he knew the Appellant or met him and Jones together.

[25]

However, this is hindsight reasoning. The trial
    judge rejected this assertion in argument on the mistrial application. He found
    that the defence would have called Mr. Ellis in any event, because:

[T]heres
    overwhelming evidence that the primary reason for calling Wayne Ellis was to
    show that he was a corrupt banker in cahoots with Dean [Karahojitis]. That was
    the primary reason. And if anything, this concession makes your case in terms
    of making that point even stronger than it did before Wayne Ellis, than at the
    end of the case. Right? So, you know, I am having difficulty understanding how
    that point puts you in an inability to make full answer and defence.

[26]

Although the second IBM invoice was positioned
    by the defence as new evidence, it was in the Crown disclosure from the outset.
    It is not known why preliminary inquiry defence counsel either did not notice
    the document, or decided not to cross-examine Mr. Karahojitis on it. Trial
    defence counsel was left to make the best of it.

[27]

The trial judge took the view that trial defence
    counsel had made the strategic decision to pursue a theory of an alternate
    suspect defence positioned around Mr. Ellis and Mr. Jones.

[28]

The trial judge decided that a strong
Vetrovec
warning about Mr. Karahojitis testimony would be sufficient to
    balance the absence of cross-examination on the second invoice. This was not an
    unreasonable assessment. In my view the trial judge made no error in principle
    in allowing the Crowns s. 715(1) pre-trial application, and in rejecting the
    defence applications for a mistrial, and/or a stay, and to reopen the s. 715(1)
    application. I would dismiss this ground of appeal.

Issue Two: Did the trial judge fail to relate the
    evidence to the individual counts in his jury charge, rendering the verdict
    unreasonable?

[29]

The governing principles concerning the
    assessment of the adequacy of jury charges are well known. Appellate review
    must consider the context of the trial as a whole. Watt J.A stated in
R.
    v. P.J.B
.
, 2012 ONCA 730,
    298 O.A.C. 267, at para. 49, that:

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
, [
R.
    v. Daley
, 2007 SCC 53] 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.

[30]

The adequacy analysis was further explained by
    Laskin J.A. in
R. v. Newton
,

2017 ONCA
    496, 349 C.C.C. (3d) 508, at para. 13:

On appeal, the
    standard of review is adequacy, not perfection. An appellate court's approach
    is "functional". It assesses the adequacy of the charge in the light
    of its purpose. Even if a trial judge strays from the ideal, the fundamental
    question an appellate court must ask is: has the jury been "left with a
    sufficient understanding of the facts as they relate to the relevant
    issues" Or, are we satisfied "that the jurors would adequately
    understand the issues involved, the law relating to the charge the accused is
    facing, and the evidence they should consider in resolving the issues" If
    the answer to either question is "yes", then the charge will be
    upheld on appeal, despite any imperfections. If the answer is "no",
    then the accused will have been denied a fair trial and any convictions must be
    set aside.

[31]

In assessing adequacy two questions are to be
    addressed: Would the jury appreciate the potential significance of the evidence
    to the issues from the perspectives of both the Crown and defence? Was the
    instruction fair, in the sense that it represented an even-handed treatment of
    the evidence as it related to the issues the jury had to decide? See
R.
    v. Figliola
, 2018 ONCA 578, 141 O.R. (3d) 662, at para.
    11, per Doherty J.A.

[32]

The assessment of adequacy must advert to the
    necessary components of a criminal jury charge, which Laskin J.A. set out in
Newton
, at para. 11:

In addition to general instructions on the
    presumption of innocence, the burden of proof, how to assess the credibility
    and reliability of witnesses' testimony and the like, the charge on the
    particular case should contain the following five components:

i.

the legal framework, typically the elements of
    the offence or offences with which the accused is charged;

ii.

the factual issues arising out of the legal
    framework that the jury must resolve;

iii.

the material evidence relevant to these issues;

iv.

the position of the Crown and defence on these
    issues; and

v.

the evidence supporting each of their positions
    on these issues.

[33]

This list of components aims to link the
    elements of the offence with the factual issues in the case, with the relevant
    evidence, and with the respective positions of the parties. In
R. v.
    Cudjoe
, 2009 ONCA 543, 251 O.A.C. 163, Watt J.A. said, at
    para. 152:

The role of the
    trial judge in instructing a jury generally, and in reviewing and relating the
    evidence to the issues in particular, is to decant and simplify. The trial
    judge should not simply leave the evidence in bulk for the jury, assigning to
    them responsibility for determining the relationship between the evidence and
    the issues that arise for their decision.

[34]

Justice Watt noted, at para. 173: Relating the
    evidence to the issues requires the trial judge to apprise the jurors of the
    essential features of the evidence that they may apply in resolving the issues
    that are theirs to decide and that will lead them, ultimately, to their
    verdict. He said, at para. 175: A crucial constituent of this scheme
    involves linking the critical features of the evidence to the issue or
    essential element to which the evidence relates. He added: Said somewhat
    differently, what must be proven (the essential element) is mated with what is
    offered to prove it (the evidence).

[35]

The necessary links should be made in the jury
    charge, but where this task is not adequately performed, the issue on appeal is
    whether the functional purposes of a proper charge were nonetheless
    accomplished in the context of the trial as a whole, including the live issues
    in the trial, the nature of the evidence, the content of the jury addresses of
    counsel, and the jury charge.

The Jury Charge

[36]

The jury charge covered over 300 pages of
    transcript and took about four and a half hours over two days to deliver.
    Consistent with best practice, the trial judge gave counsel a draft of the
    charge and took submissions on the text. Counsel did not object to the
    structure or content of the charge, a copy of which was provided to the jury.
    The trial judge also amended the written charge during the breaks in response
    to comments from counsel as he proceeded through it.

[37]

The trial judges charge had three main
    sections, apart from the standard first section generally describing the jurys
    duties. He conducted a lengthy review of the evidence witness-by-witness without
    relating the evidence to the counts. Next, he read out each of the counts,
    explained the legal elements which the Crown was obliged to prove, and
    mentioned briefly the individuals involved, but without linking the related
    evidence in any detail. He ended with a review of the positions of the parties.

[38]

In the text of the jury charge, the defence
    position was organized on a count-by-count basis and did make detailed links to
    the evidence. The Crown position was organized not by counts but by victim,
    with a section for each of Ms. Lo, Mr. Jones, and Scotiabank. The links between
    each of the counts and the related evidence was carefully laid out.

[39]

In discussing Mr. Karahojitis testimony, the
    trial judge reminded the jury that the defence did not have an opportunity to
    cross-examine him at trial, and that the jury did not see or hear him testify.
    He also gave a
Vetrovec
warning about Mr.
    Karahojitis testimony. He specifically mentioned some problems with the
    testimony, including the following:

·
Mr.
    Karahojitis testified that the chartered accountant had prepared a financial
    statement of Laers Inc., but the accountant testified and denied preparing it
    or even speaking to him;

·
Mr.
    Karahojitis testified that he called IBM to verify that Laers had purchased a
    server, but an IBM witness testified that the invoice was fraudulent;

·
Mr.
    Karahojitis claimed that he only knew the appellant as Jones, but the
    appellants proper identification was found in Mr. Karahojitis residence;

·
All the documents
    submitted in support of the loan application were fraudulent.

Discussion

[40]

The appellant argues that the trial judges jury
    charge did not provide sufficient assistance to the jury in the context of this
    lengthy and complex 5-week fraud trial, in which there were three different
    complainants involved in multiple transactions. Sixteen witnesses testified and
    there were hundreds of documentary exhibits. The appellant testified, and gave
    what his counsel described as a complicated denial of the allegations.

[41]

The appellant argues that in the face of this
    complexity, the trial judge did nothing to relate the evidence to each count.
    The appellant points out that the trial judge ended his review of the essential
    elements with a boilerplate paragraph:  This same passage
word-for-word
was repeated 25 times, often multiple times per count, for each
    element of the offence:

I have previously
    provided an extensive summary of the evidence relevant to this offence.
    Remember that if your recollection of the evidence varies from my recollection
    of the evidence it is your recollection of the evidence that must prevail. Do
    not place any undue emphasis on any evidence that I have included or any
    evidence that I may have excluded. You are to consider all the applicable
    evidence to determine if the Crown has discharged its burden of proof beyond a
    reasonable doubt.

[42]

The appellant submits that this situation was
    well described by Watt J.A. in
Cudjoe
, at
    para. 172, when jurors are numbed into near automatistic states by a mindless
    recitation.

[43]

The appellant points out a remark by the trial
    judge to the jury: I am going to repeat the same instruction six times. At
    some point you are going to say this judge is insane. He then added: This is
    our process, okay? So bear with me. Its something that I have to do, all
    right?

[44]

With respect, such repetition is neither
    necessary nor helpful to the jury. Nor does it serve to appeal-proof a jury
    charge. This charge is far from a model to be followed in other case. But that
    does not mean it was inadequate. The adequacy of a charge is to be assessed on
    a case-specific basis.

[45]

In my view, despite the infirmities in the
    charge, the jury would have appreciated the potential significance of the
    evidence to the issues from the perspectives of both the Crown and the defence.

[46]

First, contrary to the submissions of the
    appellant, the fraud charges were not complex. They were relatively simple and
    were not particularized in a confusing manner. While there was voluminous
    evidence, there were really only three credibility contests before the jury:
    the first was between the appellant and Ms. Lo; the second was between the
    appellant and Mr. Jones; and the third was between Mr. Headley on the one hand,
    and the witnesses he implicated in the Scotiabank fraud, Mr. Karahojitis, Mr.
    Ellis and Mr. Jones. The evidence relating to each of these opposed pairs was
    relatively simple.

[47]

Second, while the trial judges treatment of the
    elements of each count was laborious, the fraud at the core and the credibility
    of the witnesses related to each count, would not have been lost on the jury.

[48]

Third, the charge must be read as a whole. On
    balance, it did communicate the legal framework. A witness-by-witness
    recitation or summary of the evidence, without explaining how the significant
    parts of the evidence relate to the particular issues in the case has been
    criticized by this court as generally ineffective and unhelpful: see e.g.
Newton
,
    at paras. 15-19;
R
. v. Dieckmann
, 2017
    ONCA 575, 355 C.C.C. (3d) 216, at para. 41. In this case, however, the trial judges
    approach of summarizing the evidence witness-by-witness did no harm.

[49]

Take, for example, the Scotiabank fraud, to
    which the bulk of the appellants arguments were addressed. The Crowns key
    witness was Mr. Karahojitis; his preliminary inquiry evidence was extensively
    treated by the trial judge and by the parties in their jury addresses.
    Moreover, their positions were well laid out in the jury charge in digestible
    form. The very nature of the Scotiabank count was to link it with the evidence
    of Mr. Karahojitis, Mr. Ellis and Mr. Jones as against the appellants
    testimony.

[50]

Fourth, the instruction was fair and represented
    an even-handed treatment of the evidence relating to the issues:
Figliola
, at para. 11.

[51]

Did the jury have before it an understanding of
    the law and the evidence necessary to make the credibility determinations
    necessary in this case? In my view, it did. The lack of objection to the jury
    charge in draft, or after it was delivered, is indicative that trial counsel
    had the same sense. In this case, the lack of an objection is material: see
R.
    v. P.J.B
.
,

at para.
    49;
Cudjoe
, at para. 155.

[52]

I would dismiss the appeal for these reasons.

Released: November 15, 2018

P. Lauwers J.A.

I agree. Robert J. Sharpe J.A.

I agree. K. van Rensburg J.A.

[1]
Tab 18 is described as saying that the documents were variously discovered,
    found and retrieved from Mr. Karahojitis residence but the meaning is
    clear: the documents were found at his residence: see e.g. February 1, 2016
    Transcript, p. 52; February 2, 2016 Transcript, p. 3; February 11, 2016
    Transcript p. 72.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hoshal, 2018 ONCA 914

DATE: 20181114

DOCKET: C65672

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brent Casey Hoshal

Appellant

Brent Hoshal, in person

Louis Strezos, as duty counsel

Hannah Freeman, for the respondent

Heard: November 7, 2018

On appeal from the sentence imposed on July 20, 2018 by
    Justice Rebecca Rutherford of the Ontario Court of Justice.

Fairburn J.A.:

Overview

[1]

On July 20, 2018, the appellant was sentenced to
    three years custody for a number of domestic offences. He was credited 24
    months for enhanced pre-sentence custody, leaving one year left to serve. A long
    term supervision order [LTSO] was also imposed for a period of ten years.

[2]

The appellant is a self-represented litigant
    appealing against both his sentence and the LTSO. The respondent agreed to move
    the appeal forward at the appellants request. At the outset of the hearing,
    the appellant asked to bifurcate his appeal and be permitted to first proceed
    on the appeal against the one-year custodial period. He says that this is a
    matter of urgency. He maintains that there was a calculation error in relation
    to the amount of credit he should have received for pre-sentence custody and
    that he should have been released onto his LTSO a few months ago.
[1]
The
    appellant is prepared to deal with his appeal against the LTSO at a later date.

[3]

The respondent and duty counsel agree that there
    was a nine-month error in the calculation of pre-sentence credit, meaning that
    33 months (as opposed to 24 months) of credit should have been applied against
    the appellants global sentence of three years. On the face of the trial
    judges reasons for sentence, with the correct amount of credit deducted, it is
    agreed by counsel on appeal that the appellants custodial sentence would have
    expired a few weeks ago.

[4]

The respondent does not object in principle to
    bifurcating the appeal. The respondent objects, though, to the sentence appeal
    going ahead before at least December 10, 2018, as Correctional Service of
    Canada [CSC] and the Parole Board have yet to put a plan together for the
    appellants release on the LTSO, should he succeed on his appeal. The
    respondent said that a plan is necessary to ensure public safety. For oral
    reasons given in court, the panel denied the request for an adjournment and
    heard the appeal.

[5]

The respondent says that the appeal should be
    dismissed. The respondent maintains that the calculation error constitutes an
    error in principle, allowing this court to consider the sentence afresh. It is
    argued that a fit sentence is one that aligns with the effect of the sentence
    imposed, one additional year in custody. To achieve that effect, the respondent
    urges this court to increase the global sentence to three years and nine months
    and then to apply the correct amount of credit, leaving the same one year in
    custody left to serve.

[6]

For the reasons that follow, I would grant the appeal
    and decline to increase the sentence.

Background Facts

[7]

The appellant and his former domestic partner
    were in a relationship for about seven years. It was a relationship marred by
    violence. He repeatedly threatened and assaulted the victim, went to jail, got
    out of jail and committed more acts of violence against her. The appellants
    criminal record reflects that cycle of violence. The victim is understandably
    terrified of the appellant.

[8]

In relation to the offences that form the
    backdrop to this appeal, the appellant was arrested on May 5, 2015. In the
    month preceding his arrest, he committed a series of violent acts against the
    victim, including: biting her lip, squeezing her breasts, slapping her on the
    head and in the face, choking her, refusing to allow her to leave the
    apartment, threatening to kill her and throwing an iron chair at her. Some of
    the events were accompanied by the appellants use of crystal methamphetamine. During
    their last interaction, the appellant threatened to hang himself with a dog
    leash.

[9]

On August 4, 2015, the appellant pled guilty to the
    charges arising from those offences, including assault with a weapon, assault
    bodily harm, overcome resistance to the commission of an offence, forcible
    confinement, mischief under $5000, and fail to comply with probation.

[10]

Following his guilty plea, the Crown pursued a
    dangerous offender application. While that application was outstanding, the
    appellant again offended by contacting and criminally harassing the victim from
    jail. While awaiting the dangerous offender application on the predicate
    offences, the appellant was found guilty and sentenced on the intervening acts.
    At the time of sentencing on this matter, the appellant had not attempted to
    contact the victim in over two years.

The Disposition Under Appeal

[11]

Prior to sentencing, the trial judge asked trial
    counsel to provide their respective positions on pre-sentence custody. The
    trial Crown responded to that request by email to the trial judge, copied to
    defence counsel. The email explained that counsel had agreed that the enhanced
    credit for pre-sentence custody was 24 months. Although the respondent and duty
    counsel on appeal agree that it is unclear how trial counsel arrived at that
    number, it is clear from the email that they attempted to apply a formula of one
    and one-half days for each day spent in pre-sentence custody: see s. 719(3.1)
    of the
Criminal Code
;
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575.

[12]

On July 20, 2018, the dangerous offender
    application was dismissed because the trial judge concluded that there was a
    realistic possibility that the appellants violent behaviour could be
    controlled, a possibility that went beyond mere hope. As noted in the trial
    judges reasons, that view was supported by Dr. Klassen, who provided the
    report on risk assessment and risk management in the community. Even so, again
    based on Dr. Klassens evidence, the trial judge concluded that absent
    meaningful intervention, the appellant would pose a high risk of violently
    reoffending and that he met the definition of a long-term offender in s. 753.1
    of the
Criminal Code.
Accordingly, she imposed
    a ten-year LTSO.

[13]

The trial judge also considered the appropriate
    sentence for the predicate offences. The parties take no issue with her approach
    to the relevant sentencing principles or the many factors she took into account
    in arriving at a fit disposition. Her reasons were careful, sensitive and
    considered. She had specific regard to the appellants Indigenous heritage and
    the fact that he actively embraces his Indigenous roots. She accepted as a fact
    that the appellant will continue to engage with indigenous programs while
    serving his sentence both in jail and in the community.

[14]

Ultimately, the trial judge imposed a three-year
    sentence, saying:

In all of the circumstances I sentence Mr.
    Hoshal to
three years concurrent

on the counts of Assault with Weapon . [Emphasis added.]

[15]

The trial judge then went on to consider credit
    for time served. Taking into account the conceded 24 months of pre-sentence
    custody on an enhanced basis, she concluded that the appellant had a further
    12 months concurrent to serve on each count. She also imposed a sentence of
    six months concurrent on various fail to comply with probation and mischief
    counts.

[16]

Consistent with her observations about the
    appellants desire to be in a culturally sensitive environment, the trial judge
    recommended that the appellant serve the custodial portion of his sentence at
    the Algoma Treatment Centre, a recommendation that was acted upon. The court
    was informed that the appellant has been detained there since his sentencing in
    July and that he is actively enrolled in what the trial judge referred to as
    culturally competent programming with an emphasis on domestic violence.

[17]

I will now discuss the impact of the
    respondents agreement that the trial judge should have deducted 33 months of
    credit from the global sentence.

Analysis

[18]

The parties agree that, properly calculated, the
    credit for time served should have been 33 months. The respondent also agrees
    that if that period of credit were to be applied to the three-year sentence
    imposed on the day of sentencing, the appellant would have only had to serve an
    additional three months in custody, meaning that his warrant of committal would
    have already expired. Despite that acknowledgement, the respondent argues that the
    one year of additional custody from the time of sentence should not change.

[19]

The respondent urges this court to find that the
    miscalculation of credit constitutes an error in principle that requires this
    court to take a fresh look at the fitness of the sentence. Counsel for the
    respondent says that a fit sentence is one that mirrors what actually happened
     the imposition of one additional year of custody. The court is asked to
    arrive at that sentence by increasing the global sentence to three years and
    nine months. The respondent maintains that it is important to keep the
    effective length of the custodial term the same so that: (a) CSC is given a
    sufficient opportunity to come up with an appropriate plan for the appellants
    release on the LTSO; and (b) the appellant can complete the domestic violence
    program he is currently taking, scheduled to be completed by the middle of January
    2019. I do not agree.

[20]

I start with the observation that it is
    important to maintain a distinction between the custodial sentence and the
    LTSO. Although it is open to consider public safety in determining the fitness
    of sentence, the determination of a custodial sentence principally relates to
    the objectives of punishment. In contrast, the LTSO deals principally with the
    supervision of the offender in the community, ensuring the offender does not
    reoffend and protecting the public during a period of reintegration into
    society:
R. v. M.(L.)
,

2008 SCC 31, [2008] 2 S.C.R. 163, at
    para. 46. To merge the two different tasks is to stray from the normative
    principles and the objectives of sentencing:
M.(L.)
, at para. 49.

[21]

The trial judge determined that the fit sentence
    was three years. The respondent acknowledges that, pursuant to information the
    trial judge had been provided by trial counsel, the trial judge then mistakenly
    applied the wrong amount of credit. Having regard to the correct amount of
    credit, this court is now being asked to increase the custodial sentence to
    accommodate the development of the plan for the LTSO. To do so would belie the
    warning in
M.(L.),
at para. 49,

to remain faithful to the distinction
    between sentencing and the imposition of a supervision period.

[22]

It is not for this court to increase the
    appellants punishment and further jeopardize his liberty interests to
    accommodate the development of a plan for the LTSO. There is no basis to do so.
    The correctional authorities must act swiftly in developing that plan.

[23]

Moreover, although the respondents position
    respecting the value of keeping the appellant in the domestic violence program
    he is currently taking is laudable, the record demonstrates that the best
    programming available to meet the appellants specific needs awaits him on the
    LTSO. Indeed, Dr. Klassen testified to that effect.

[24]

The trial judge determined the fit sentence
    first, before taking into account any credit for pre-sentence custody. I find
    that the trial judge intended to impose a three-year sentence. She said so: In
    all of the circumstances I sentence Mr. Hoshal to three years concurrent. She
    arrived upon that global number having engaged in an extensive consideration of
    the facts, the relevant principles of sentencing and all aggravating and
    mitigating circumstances. There is no suggestion of error in the trial judges
    reasoning process.

[25]

The trial judge then deducted what she referred
    to as the enhanced credit from that global sentence that she arrived upon. As
    the respondent says on appeal, the trial judge was misinformed about that
    period of credit. The sentence is what it is: a three-year global sentence with
    credit applied at what the respondent acknowledges was an incorrect amount of
    24 months. The calculation error clearly had an impact on the time left to be
    served. Properly calculated, the custodial term should have been an additional
    three months.

[26]

While it may have been open to the trial judge
    to apply less than full enhanced credit for the pre-sentence custody, the
    respondent does not advance that argument. Instead, the respondent fairly acknowledges
    that the appellant should have been credited 33 months.

[27]

This only leaves open, then, the question of
    whether this court should increase the total length of the global sentence. The
    respondent claims that numerous authorities support the respondents position
    on this approach. I disagree.

[28]

The respondent relies upon authorities where
    this court found errors in principle in how trial judges applied credit for
    pre-sentence custody. The errors include true errors in principle, such as
    taking irrelevant considerations into account in assigning less credit than
    would otherwise be available, or refusing to grant any credit at all. Cases
    relied upon by the respondent include:
R. v. Codner
,

2013 ONCA
    138, 303 O.A.C. 91;
R. v. Gamble
,

2011 ONCA 308;
R. v.
    Langlois
,

2007 ONCA 642, 228 O.A.C. 394;
R. v. MacFarlane
,

2012 ONCA
    82, 288 O.A.C. 114;
R. v. Simoes
,

2013 ONCA 465;
R. v. Situ
,

2010 ONCA
    683;
R. v. Wysokinski
,

[2005] O.J. No. 2299 (C.A.). There is
    a substantial difference between a trial judge intentionally imposing a period
    of credit arrived upon through an error in principle, and a trial judge
    unintentionally imposing an erroneous period of credit because of counsels mistake
    in math.

[29]

Moreover, the respondent says that the
    authorities provide support for the proposition that any error in principle
    requires this court to consider the overall fitness of sentence, and that it is
    open to the court to increase the total sentence beyond what the trial judge
    imposed. I disagree that the authorities stand for that proposition. An error
    in principle can justify appellate intervention, but only where it appears that
    the error had an impact on the sentence:
R. v. Lacasse
,

2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 44. In many of the cases cited by the
    respondent, this court determined that despite the error in principle, the
    sentence remained fit and appellate intervention was not called for. In other
    words, despite the error, the appeal was dismissed.

[30]

In this case, though, the respondent
    acknowledges that the 33 months of credit should apply, which is what triggers
    the submission that the global sentence should be increased from three years to
    three years and nine months. There is no Crown appeal against the sentence
    imposed. Nor is there clarity around whether the respondents position about
    increasing the sentence was known to the appellant in advance of the appeal (
R.
    v. Hill,
[1977] 1 S.C.R. 827). In all of the
    circumstances, it would be highly unfair to the appellant to increase his
    sentence, particularly at this stage.

[31]

The trial judge gave careful and thoughtful
    reasons. No one suggests to the contrary. She was clear about what she was
    doing. The fact that she was misinformed about the period of credit should not
    work to the appellants disadvantage. The error should be corrected to make
    this right.

[32]

The respondent has legitimate concerns about
    public safety and they cannot be taken lightly. Although the LTSO is in place, CSC
    does not yet have a specific plan in place for the appellants transition onto
    his LTSO. The court is informed that the plan may still take up to about a
    month to create.

[33]

While it would be ideal to have the CSC plan in
    place, it is important to keep in mind that there will be safeguards in place
    the moment the appellant is released from custody:  the LTSO along with many
    binding statutory requirements and a probation order, which I discuss further
    below.

[34]

The reality is, though, that the appellant
    identified this problem to CSC and the respondent a few months ago. Upon being
    notified, the respondent took immediate steps to inquire into the matter and
    provided the necessary information to the duty counsel program. Mr. Strezos has
    been of great assistance in exploring the matter and obtaining the materials
    needed to determine the correct amount of credit. It took time to get the
    information required to determine the error. That information was only
    available about a week before the hearing of this appeal.

[35]

Although a correctional plan is not yet in
    place, the court has been informed that the correctional authorities have
    opened a bed for the appellant at the Keele Community Correctional Centre
    [KCCC]. The respondent agrees that this is an appropriate location for the
    appellant to reside. Although the respondent emphasizes that, until a plan is
    in place, there will be nothing that legally holds the appellant at that
    location, I have no doubt that CSC and the Parole Board will move quickly to
    remedy that situation.

[36]

In the interim, the LTSO is immediately in place
    along with many statutory requirements that bind the appellant. For example, s.
    753.2(1) of the
Criminal Code
says that an
    offender who is subject to an LTSO shall be supervised in the community in
    accordance with the
Corrections and Conditional Release Act
, S.C. 1992, c. 20

[CCRA], when the offender has finished serving his sentence.
    Section 134.1 of the CCRA sets out the approach to conditions for individuals
    on LTSOs. The Parole Board may establish conditions it considers reasonable and
    necessary, including conditions to protect victims of crime.

[37]

As the respondent points out, the Parole Board
    has not yet set the conditions. Even so, s. 134.1(1) says that every offender
    who is required to be supervised by an LTSO is subject to prescribed conditions
    under s. 161(1) of the
Corrections and Conditional Release
    Regulations
, S.O.R./92-620 [CCRR]
.
Section 161(1)(a) of the CCRR says that when an offender is released
    on parole or statutory release, the offender must travel directly to the
    offenders place of residence, as set out in the release certificate respecting
    the offender, and report to the offenders parole supervisor immediately and
    thereafter as instructed by the parole supervisor.

[38]

The court has been informed that the appellant
    will be released with a direction on his release certificate to travel directly
    to the KCCC. He will also have to report to his parole officer immediately.
    Under s. 161(1)(b) of the CCRR, the parole officer can fix territorial
    boundaries within which the appellant must remain. Under a host of other
    mandatory provisions, he may not possess weapons, he must report to the police
    if instructed to do so by his parole supervisor, and he must obey the law and
    keep the peace. Any breach of those provisions could result in a warrant for
    the appellants arrest.

[39]

The appellant is also bound by a probation
    order, including a condition that he not communicate with the victim in this
    matter. Any breach of that probation order could also result in his immediate
    arrest.

[40]

I also point out that pursuant to s. 753.3(1) of
    the
Criminal Code,
an offender who breaches an
    LTSO is guilty of an indictable offence and liable to imprisonment for up to
    ten years.

[41]

In short, the following factors all go some meaningful
    distance to diminish the safety risk posed by the appellant:

·

statutory requirements governing the appellants
    release on the LTSO,

·

the fact that the KCCC has opened a bed for the
    appellant and that he can reside there,

·

the fact that he will be required to attend
    there and report to his parole officer immediately upon release from custody,

·

the ability of the parole officer to set some
    conditions,

·

the probation order that includes a non-contact
    provision, and

·

the fact that the Parole Board will and should
    move quickly on the actual plan.

[42]

The fact is that the appellants sentence should
    have expired already. There are many safeguards in place, but more to come. I
    urge the correctional authorities to move expeditiously to put a plan in place.

Conclusion

[43]

I would grant leave to appeal the sentence:

(a)
set aside the credit of 24 months
    and increase it to 33 months; and

(b)
set aside the one-year and six-month
    concurrent custodial terms and decrease them to three months concurrent.

[44]

The original sentence stands in all other
    respects.

[45]

I have no doubt that the respondent will move
    immediately to have the victim and authorities notified of this decision.

[46]

The appeal from the LTSO will be spoken to on December 10, 2018 at
    10:00 a.m.

Released: KF Nov 14 2018

Fairburn J.A.
I agree. K. Feldman J.A.
I agree. L.B. Roberts J.A.

[1]
In addition to receiving the assistance of duty counsel, the
appellant
    made submissions on his own behalf. He claims that he should have been released
    from custody close to the beginning of September. I understand him to be basing
    that submission on two things: (a) taking into account the correct period of
    pre-sentence custody at an enhanced rate; and (b) applying a formula of parole
    eligibility.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.D., 2018 ONCA 947

DATE: 20181123

DOCKET: M49773 (C62532)

Doherty, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

J.D.

Appellant (Moving Party)

Erin Dann, for the moving party

Elena Middelkamp, for the responding party

Heard: In writing

REASONS FOR DECISION

[1]

The appellant was convicted of sexually assaulting a young child. The relevant
    events occurred between 1987 and 1991. The trial judge sentenced the appellant
    to 3 years in the penitentiary and imposed orders under s. 161(1)(a) and (b) of
    the
Criminal Code
. The former order prohibits attendance at places where
    persons under the age of 16 are present or can reasonably be expected to be
    present. The latter order prohibits seeking, obtaining or continuing employment
    or volunteer work which involves being in a position of trust or authority over
    persons under the age of 16.

[2]

The appellant has appealed conviction and sentence. On the sentence
    appeal, he challenges the constitutionality of the orders made under s.
    161(1)(a) and s.161(b). He submits that the orders constitute punishment for
    the purposes of s. 11(i) of the
Charter
. He further contends that as
    s. 161(1)(a) and (b) were not in force when he committed the offences, the
    making of the orders under those provisions against him is contrary to s. 11(i)
    of the
Charter
: see
R. v. K.R.J.
,
[2016] 1 S.C.R. 906.

[3]

The constitutional challenge was not raised at trial. It can be raised
    for the first time on appeal only with leave of this court. The onus rests on
    the appellant to convince the court that it should exercise its discretion in
    favour of hearing an argument not raised in the court below:
R. v. Reid
,
    2016 ONCA 524, at para. 42.

[4]

The parties have canvassed the factors relevant to the exercise of that
    discretion in their written arguments.

[5]

The Crown makes the point that if the appellant is allowed to advance
    the constitutional challenge, both parties will inevitably tender evidence on
    the appeal relevant to the possible justification of any potential infringement
    of s. 11(i) under s. 1 of the
Charter
. Counsel submits that the evidence
    will be extensive and contentious. She argues, relying on
R. v. Roach
,
    2009 ONCA 156, at paras. 8-11, that this court is neither the appropriate nor an
    effective forum in which to raise and resolve those evidentiary issues.

[6]

The Crown raises a legitimate concern. An appellate court is not the
    place to develop an evidentiary record. However, while the evidentiary record
    submitted in reference to the s. 1 issues may be extensive, we doubt it will
    involve the kind of evidence in respect of which assessments of credibility and
    reliability are required. To the extent that there may be conflicting evidence
    on some issues, e.g. recidivism rates, we think those questions can be adequately,
    if not ideally, resolved by way of affidavits and transcripts of any cross-examination
    on those affidavits. Case management is available to the parties to facilitate
    the preparation of the evidentiary record and ensure that it adequately
    addresses the issues to be raised on appeal.

[7]

Whatever problems there may be with assembling an appropriate record are
    outweighed by the appellants legitimate interest in advancing the constitutional
    issue. Counsels failure to raise the issue at trial, either by way of a constitutional
    challenge, or a statutory interpretation argument, cannot be described as a
    tactical decision. Counsel focused on the merits of making the challenged
    orders.

[8]

In light of the Supreme Court of Canadas ruling in
K.R.J.
, released
    after the appellants sentencing, it seems likely that if the appellant is
    allowed to raise the constitutional issue he will be able to establish that the
    challenged orders constitute a
prima facie
breach of s. 11(i) of the
Charter
.
    His appeal will turn on whether the Crown can met its onus under s. 1 of the
Charter
to demonstrate that the challenged provisions constitute reasonable limits on
    the s. 11(i) right. That argument had mixed success in
K.R.J.

[9]

In addition to the merits of the appellants proposed argument, the
    impact of the orders on him must be considered. The orders impose lifetime
    limitations on the appellants ability to move about in public and on his
    employment possibilities. Assuming the convictions survive appeal, if the appellant
    is not allowed to advance his constitutional claim, he will remain subject to
    those orders for the rest of his life, subject to a limited right to apply for
    a review if there are changed circumstances.

[10]

Having
    regard to the potential significant negative impact of the orders on the
    appellant, and the apparent merits of the constitutional argument, we think the
    interests of justice favour permitting the appellant to raise the argument for
    the first time on appeal. The appellant can advance the constitutional
    challenge.

[11]

Counsel
    should arrange a further case management conference call to discuss any matters
    arising out of this ruling.

Doherty J.A.

Paul Rouleau J.A.

K. van Rensburg J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.P., 2018 ONCA 878

DATE: 20181101

DOCKET: C64316

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.P.

Appellant

Janelle Belton, for the appellant

Rebecca Schwartz, for the respondent

Heard: October 30, 2018

On appeal from the judgment of Justice Paul Robertson of
    the Ontario Court of Justice, dated May 3, 2017.

REASONS FOR DECISION

[1]

The appellant appeals against his conviction on two counts of sexual
    assault against his step-granddaughter. The complainant visited the appellant
    at his apartment to assist him with household chores. She visited him weekly at
    first, then less frequently, from the time she was 18 until she was 27. The
    trial judge found that the appellant sexually assaulted the complainant on
    these visits during this time period, and that these assaults were part of an
    on-going course of conduct.

[2]

The trial judge found that the complainant acquiesced to the appellants
    demands out of fear, and therefore did not consent. Eventually, the complainant
    refused the appellant and went to the police. The trial judge characterized the
    complainant as simple, naïve, and below normal development of a person of
    the same age.

[3]

The appellant raised two grounds of appeal, arguing that the trial judge
    erred by:

(1)

reversing the burden of proof by drawing a negative inference from the
    appellant not having provided medical evidence of his physical inability to
    engage in sex; and

(2)

failing to apply the third step
    from
R. v. W.(D)
.
[1991] 1 S.C.R. 742.

[4]

We would not give effect to either of these grounds of appeal.

[5]

First, the trial judge did not reverse the burden of proof. Whether the
    appellants evidence was that he was incapable of engaging in sexual
    intercourse (as maintained by his trial counsel) or only that intercourse would
    have been physically difficult for him (as characterized by his counsel in this
    court), the basis of the finding that the appellant was capable of engaging in
    sexual intercourse was not the appellants failure to provide medical evidence
    to the contrary. The trial judge did comment on the absence of medical evidence
    that would have corroborated the appellants claim. However, when the trial
    judges reasons are taken as a whole, it is clear that he rejected the
    appellants evidence because he accepted, beyond a reasonable doubt, the
    conflicting evidence from the complainant and her mother.

[6]

Second, although the trial judge did not specifically enunciate the test
    from
W.(D).
, he was not obliged to do so, and he nevertheless observed
    its requirements. He did not approach the case as a credibility contest between
    the appellant and the complainant, but expressly articulated the need to
    consider all of the evidence which he accepted. With respect to the question of
    whether the complainant consented, for example, he held that [w]hile the
    complainants testimony is the only source of direct evidence as to her state
    of mind, credibility must still be assessed in light of all of the evidence including
    any ambiguous conduct.

[7]

Neither did the trial judge fail to reconcile material inconsistencies
    in the evidence. The trial judge addressed the key arguments raised by the
    parties. All witnesses agreed that the appellant suffered from breathing issues
    and other ailments. That was the reason that the complainant assisted him with
    household tasks at his apartment. Disagreement as to the precise extent of the
    appellants breathing issues was not material. It was unnecessary that the
    trial judge do more to resolve these more peripheral questions because he
    accepted evidence that the appellants health was not, at the relevant times,
    so impaired as to prevent him from engaging in the sexual acts alleged.

DISPOSITION

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewin, 2018 ONCA 882

DATE: 20181105

DOCKET: C63961

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrea Lewin

Appellant

Mark Halfyard, for the appellant

Linda Shin, for the respondent

Heard: October 31, 2018

On appeal from the order/judgment of Justice J. De
    Filippis of the Ontario Court of Justice, dated January 28, 2017.

REASONS FOR DECISION

[1]

The appellant and the complainant are the parents of twin children born
    in Canada. The complainant lives in the Netherlands, and the appellant moved
    with the children to live with the complainant in Amsterdam. They married and
    lived in Amsterdam for two years. After the relationship ended, the appellant
    obtained an order from a Dutch court allowing her to take the children back to
    Canada, which she did. The appellant then commenced an application in Ontario
    for divorce and custody of the children. She was granted custody, and the
    complainant was granted unsupervised access. The complainants access was to
    take place monthly, when he would fly to Ontario from the Netherlands to see
    the children, now aged 7. A court order set out an access schedule for December
    2015 to June 2016.

[2]

In June 2016, the complainant had travelled to Ontario and was waiting
    to pick up the children at their school, as provided by the access schedule. As
    he waited, the appellant surreptitiously entered the school and removed the
    children from class. The complainant called the police and attempted to block
    the appellants vehicle with his own. The appellant drove onto the grass to
    exit the parking lot, and then to the highway, driving aggressively, with the complainant
    following. Fearing for the childrens safety, the complainant eventually discontinued
    his pursuit.

[3]

The police arrested the appellant three days later. She pleaded guilty
    to one count of abduction of a child in contravention of a court order contrary
    to s. 282(1) of the
Criminal Code
. She received a suspended sentence.
    She appeals from sentence, arguing that the sentencing judge erred by:

1. Using the
    appellants prior wrongdoing as an aggravating factor;

2.
    Not tailoring the sentence to the appellants specific circumstances, and
    instead using the appellants sentence to send a message of general deterrence.

[4]

The appellant submits that she ought to have received a conditional
    discharge.

[5]

We do not agree.

[6]

The agreed facts on sentencing included prior instances of the appellant
    frustrating the complainants access. Even though she was specifically punished
    for these instances through a family court contempt finding, the sentencing
    judge was entitled to consider the appellants admitted course of conduct in
    determining whether a discharge would be contrary to the public interest. Taking
    the appellants prior actions into account in this exercise is not a matter of
    punishing her twice for the same conduct.

[7]

With respect to whether the sentencing judge erred in his consideration
    of the appellants circumstances, or wrongly emphasized denunciation and
    deterrence, the appellant is essentially asking this court to reweigh the
    aggravating and mitigating factors. In the circumstances of this case, given
    the aggravated manner in which the appellant frustrated the complainants
    access, the sentencing judge was entitled to find that it was not in the public
    interest to grant a conditional discharge.

DISPOSITION

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco
    J.A.