WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1)
Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young person
    as a young person dealt with under this Act.

111. (1)
Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138. (1)
Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985,

(a)       is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)       is guilty of an
    offence punishable on summary conviction.

CITATION:
R. v. A.J.S., 2011
          ONCA 566

DATE: 20110829

DOCKET: C51673

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Watt J.J.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

A.J.S. (a young person)

Appellant

Gavin S. MacKenzie, for the appellant

Susan Reid, for the respondent

Heard: July 26, 2011

On appeal from conviction entered by Justice Steven Clark of
          the Ontario Court of Justice, dated September 18, 2009 and sentence imposed,
          dated January 18, 2010.

E N D O R S E M E N T

[1]

The appellant, a 13-year-old boy at the time of the
    alleged offences, was convicted of two counts of sexual assault on a five-year-old
    boy. Both the complainant and the appellant testified. The appellant denied the
    offences.

[2]

The appeal against conviction is based on the ground of
    inadequacy of the reasons for judgment. In particular, the appellant submits
    that where the live issue at trial was the credibility and reliability of the
    two main witnesses, the complainant and the appellant, the reasons fail to
    disclose any meaningful explanation for rejecting the appellants evidence.

[3]

The reasons for judgment are almost 55 pages in length.
    The first 34 pages contain a review of the evidence of each witness; in the
    next nine, the trial judge sets out the positions of the parties; this is
    followed by 5 and 1/2 pages of general legal and evidentiary principles
    relevant to the issues in the case, including how to assess the evidence of
    young children and of a defendant who denies the allegations. He also comments
    on the complainants testimony, which he finds to be honest and straightforward
    with only minor inconsistencies from the complainants video statements. The
    last 4 and 1/4 pages constitute the balance of the trial judges findings, in
    which he analyzes the evidence under the framework set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742 (
W.(D.)
).

[4]

The trial judge begins by giving three reasons for
    rejecting the appellants evidence.

[5]

First, the 15-year-old appellant made an unvarnished
    denial, rather than giving an interpretation of what may have happened. On
    this point, the trial judge stated: The Court finds that there is no ring of
    innocence or truth to this but, in fact, a denial of convenience.

[6]

Second, the appellants evidence was inherently
    improbable and implausible. The trial judge explained that he made this
    finding not because he believed the complainant, but because on the whole of
    the evidence, the appellants evidence cannot be true.

[7]

Third, the trial judge was applying common sense and
    everyday experience. In so doing, he stated that he was not considering as a
    factor the appellants silence or his failure to explain himself to the
    complainants parents.

[8]

The trial judge then turned to the second branch of the
W(.D.)
analysis, where he found that
    none of the defence evidence raised a reasonable doubt.

[9]

Finally, on the third branch of the test, the trial
    judge first concluded that the complainants evidence was compelling, with very
    specific details. He also referred to the evidence of the parents as being
    corroborative of the childs evidence, stating that it restore[d] the Courts finding
    and acceptance of the complainants account of what took place. The trial
    judge did not, however, explain how the parents, who were not witnesses to any
    of the alleged events but only heard about them after the fact from the
    complainant, could corroborate the complainants evidence, other than by
    oath-helping.

[10]

The trial judge next addressed two aspects of the
    complainants behaviour and reconciled them with his conclusion that the
    complainant was telling the truth. The first was his change in behaviour,
    including feeling dirty, and being fearful of touching food because his hands
    had touched the genitals of the appellant. The trial judge found that these
    changes constituted a building block to the foundation leading inevitably to guilt
    beyond a reasonable doubt. The second aspect was the timing of the
    complainants disclosure. The trial judge was satisfied that there were good
    reasons for the complainants initial failure to disclose, and that that factor
    did not raise a reasonable doubt.

[11]

The trial judge then concluded that for the stated
    reasons, the case had been proved beyond a reasonable doubt.

[12]

The adequacy of reasons as a basis for appellate
    interference with the verdict of a trial judge has been the subject of a number
    of recent decisions of the Supreme Court of Canada, including:
R. v. Sheppard
, [2002] 1 S.C.R. 869;
R. v. Braich
, [2002] 1 S.C.R. 903;
R. v. Gagnon,
[2006] 1 S.C.R. 621;
R. v. R.E.M.
, [2008] 3 S.C.R. 3; and
R. v. Dinardo
, [2008] 1 S.C.R. 788.

[13]

The reasons must respond to the live issues in the
    case, and will only be viewed as insufficient where they foreclose meaningful
    appellate review: see
Dinardo
at
    para. 25, citing
Sheppard
at para.
    25.) In
Gagnon
, the court stated at
    para. 21 that where the charge is serious, and the evidence of a child and an
    adult accused are in conflict, the accused is entitled to be able to understand
    from the reasons why his or her evidence did not raise a reasonable doubt. In
Dinardo
, the court specifically reiterated
    the latter proposition (para. 35).

[14]

In this case, the complainant was a very young child
    only five years old. Although the appellant is not an adult, he is entitled to
    the same rights regarding the process used to convict him and the explanation
    of that conviction. The complainant gave two video statements to police that
    were made exhibits pursuant to s. 715.1 of the
Criminal Code
. The second statement was as a result of the
    complainant remembering more things and telling his mother that he wanted to
    tell the officer about them. At the trial, he testified outside the courtroom
    pursuant to s. 486.2(1) of the
Criminal
    Code
, intermittently over a multi-day period.

[15]

Although the trial judge first stated that he found the
    complainants testimony compelling, he then went on to discuss the fact that
    it was the parents corroborative evidence that restored the Courts confidence
    in accepting the complainants evidence, suggesting that the trial judge may
    have had concerns about the complainants evidence without the corroborating
    value of the parents evidence. It may be that the trial judge was referring
    only to corroborating the times that the complainant was left alone with the
    appellant, but the trial judge does not make that clear.

[16]

In light of the age of the complainant, the problems
    with his testimony alluded to by the trial judge, and his reliance upon
    corroboration from the parents who had no first-hand knowledge of the
    allegations, it was incumbent on the trial judge to explain more fully how he
    reconciled these problems in the face of the appellants denial, which was not
    a denial of the times that the two were together, but merely that any sexual
    contact had occurred.

[17]

In rejecting the appellants denial as one of
    convenience, the trial judge did not acknowledge that it is very difficult for
    anyone to prove a negative. To the contrary, he seemed to require the appellant
    to interpret what may have happened, i.e., to effectively speculate about why
    the complainant said what he did.  Nor does
    the trial judge explain how someone who denies that anything happened could give
    an interpretation of what may have happened. The trial judge also discounted
    the evidence given by the appellant and other defence witnesses about the
    complainant hitting him and others in the testicles or crotch-grabbing, referring
    to this as a somewhat corollary or collateral issue that did not inspire any
    doubt but only formed part of the history of events.

[18]

This case involved very serious charges. As stated by
    the Supreme Court of Canada, the appellant was entitled to understand why his
    evidence did not raise a reasonable doubt. The three reasons the trial judge
    gives for rejecting the appellants evidence are generic and conclusory, and
    provide no insight into his reasoning or the basis for reaching the conclusion
    he did.

[19]

As a result, the appeal is allowed and a new trial is
    ordered. We note that out of a total sentence of 100 days in custody plus 50
    days of community service, the appellant has served 77 days in custody, a
    significant portion of the custodial part of his sentence. In those
    circumstances, the Crown may consider it more appropriate not to proceed with a
    second trial.

K. Feldman J.A.

R.A. Blair J.A.

David Watt J.A.


WARNING

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

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

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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION: R. v. B.A., 2011 ONCA
          544

DATE: 20110802

DOCKET: C52853

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

B.A.

Applicant/Appellant

Howard Rubel, for the appellant

Benita Wassenaar, for the respondent

Heard & released orally: July 27, 2011

On appeal from the conviction entered on July 16, 2010 by
          Justice C. Gilmore of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant seeks to set aside his conviction on a charge of touching
    the complainant for a sexual purpose, entered by Justice Gilmore of the
    Superior Court of Justice on July 16, 2010.  He received a sentence of 12
    months imprisonment.

[2]

The appellant was a young high school teacher.  The trial judge found
    that he and the complainant  then a 15-year old grade 10 student  carried on
    a sexual relationship between December 2006 and September 2007.  Witnesses over
    the 23-day trial included the complainant, teachers, principals, students,
    police officers, the appellants common law spouse, his mother, and a
    handwriting expert.  The appellant did not testify.

[3]

The evidence also included a series of MSN chat logs/emails extending
    over a lengthy period of time, as well as notes exchanged between the appellant
    and the complainant during classes that he supervised at the school.  The MSN
    messages and notes were salacious and graphic in their description of sexual
    activities between the two, both past and intended.  One final MSN chat/email
    occurred after the disclosure of the relationship; in it the appellant pleads
    for the complainant to lie about the relationship to save him and his job and
    to tell people she made it all up.  The complainant declined to do so.  The
    trial judge accurately characterized this MSN chat as darkly compelling.

[4]

Although he raised other issues on behalf of the appellant, Mr. Rubels
    principal argument was that the trial judge  having found that certain events
    could not have occurred as described by the complainant  failed to consider
    the impact of what he called these falsehoods and impossibilities on the
    overall credibility and reliability of the complainants evidence as a whole.
    This fed his further submissions that the trial judge misapprehended certain
    evidence and applied an uneven level of scrutiny to the assessment of the
    complainants testimony as compared to that of the defence witnesses,
    particularly, that of Ms. P. (the appellants common law spouse).

[5]

We do not accept these submissions.

[6]

The trial judge gave lengthy and thorough reasons, canvassing the
    pertinent evidence of all the witnesses in detail and considering and applying
    the applicable legal factors, including those surrounding the application of
    the
W.D.
principle.  She was assiduously alive to the important
    inconsistencies and contradictions in relation to the complainants evidence
    and, as well, that of other witnesses, and addressed these issues directly.

[7]

The trial judge accepted the evidence of the complainant where she found
    it to be confirmed by other independent evidence  particularly the MSN chats
    and notes referred to above, but rejected it when it did not accord with the
    objective evidence.  In doing so, she found that certain events and incidents
    could not have, or did not occur as the complainant described them.  In each
    circumstance, having done so, however, she explained why she was nonetheless
    accepting the complainants evidence that something of a sexual nature did
    happen.  While there were arguments to be made to the contrary regarding these
    circumstances, the trial judge took a different view and the record supports
    her findings on the whole.  We are not persuaded that she applied a different
    level of scrutiny to the evidence of the complainant and that of the defence
    witnesses, particularly that of Ms. P.  She was entitled on the evidence to
    draw the inferences and to make the findings she did.

[8]

On a reading of the trial judges reasons as a whole, we are quite
    satisfied that she was aware of the impact of her findings rejecting portions
    of the complainants testimony on the credibility and reliability of the
    complainants testimony overall, and that she applied the appropriate
    considerations in addressing and resolving the important credibility issues on
    which the trial turned.

[9]

The existence of the MSN chats and the notes mentioned previously was
    established through evidence that was essentially independent of the
    complainants testimony.  This evidence was simply overwhelming in support of
    the Crowns case.

[10]

The appellant was properly convicted, and the appeal is therefore
    dismissed.

K. Feldman J.A.

R.A. Blair J.A.

David Watt J.A.


CITATION: R. v. Calovic, 2011 ONCA 542

DATE: 20110802

DOCKET: C52759

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Milo Calovic

Appellant

Jack McCulligh, for the appellant

Matthew Asma, for the respondent

Heard and released orally: July 28, 2011

On appeal from the conviction entered on July 20, 2010, and
          the sentence imposed on November 3, 2010, by Justice John McMahon of the
          Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The trial judges reasons reflect the proper weighing of the evidence
    adduced, no misapplication of the burden or standard of proof, and they are
    fully supported by the evidence.

[2]

As to sentence, we are satisfied that the sentence imposed reflects no
    error in principle, falls within the range of sentences appropriate for the
    circumstances of this offence and offender, and is consistent with the
    governing sentencing objectives, principles, and factors.

[3]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted but the appeal from sentence is also dismissed.

K.
    Feldman J.A.

R. A.
    Blair J.A.

David
    Watt J.A.


CITATION: R. v. Cornelius, 2011
          ONCA 551

DATE: 20110810

DOCKET: C49484

COURT OF APPEAL FOR ONTARIO

Rosenberg,
Juriansz
and
LaForme
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donny Cornelius

Appellant

Jill R. Presser, for the appellant

Lucy Cecchetto, for the respondent

Heard: April 6, 2011

On appeal from conviction entered by Justice D. Little of the
          Superior Court of Justice, sitting with a jury, on November 30, 2007.

Rosenberg J.A
.
:

[1]

The appellant appeals his conviction for second degree
    murder and for a number of firearms offences by a court composed of Little J.
    and a jury.  The appellant submits that
    the trial judge did not adequately direct the jury in a number of respects
    concerning after the fact conduct, the evidence in support of the defence, the mental
    elements for murder and manslaughter and the elements of the firearms offences.

[2]

For the following reasons, I would dismiss the appeal

THE FACTS

[3]

On December 13, 2005, the deceased, Jeff Davis, was
    shot to death outside his friends townhouse.  The principal issue at trial was whether the appellant or his neighbour
    Justin Antonucci fired the fatal shots.  Both testified and each claimed that the other brought the gun to the
    scene of the shooting and fired the fatal shots.

[4]

Antonucci and Davis worked together at a roofing
    company.  The altercation that led to the
    death of the deceased had its origin in a dispute over a $40 drug debt that
    Antonucci owed to Davis.  Following the
    company Christmas Party, Antonucci, Davis and others went to the townhouse of Kelly
    Tardiff, a fellow employee.  The people
    at the townhouse were drinking and consuming drugs and in the course of the
    evening, Davis became increasingly belligerent towards Antonucci over the drug
    debt.  Eventually, he left the room and
    Antonucci and his girlfriend left the townhouse.

[5]

When Antonucci arrived back at his apartment building his
    girlfriend went into his unit.  Antonucci
    went over to the neighbouring unit, where the appellant lived and was invited
    in.  Antonucci told the appellant that he
    had been in a fight over a drug debt.  There was a dispute about Antonuccis purpose in going to the
    appellants home.

[6]

There was some dispute about whether Antonucci asked
    the appellant for money to repay Davis and whether he asked the appellant to
    accompany him back to Tardiffs home.  In
    any event, the appellant and his girlfriend Melissa Henry, Antonucci, and two
    of their acquaintances Michael Hicken and Tyler Pangborn, returned to the
    Tardiff home in Hickens fathers car.  When they reached the Tardiff home, Hicken and Pangborn remained in the
    car while the appellant and Antonucci headed towards the home.  According to the appellant, as they
    approached the home Antonucci pulled out a gun and said that if things get out
    of hand he had this.  The appellant
    demanded that Antonucci give him the gun.  He did so and the appellant put the gun in his pocket.  Antonucci denied that he ever had a gun.

[7]

While there were some discrepancies among the various
    witnesses as to what happened next, it is sufficient for the purposes of this
    appeal to set out the two competing versions, one favouring the appellants
    theory that Antonucci killed the deceased and the other version that it was the
    appellant who killed the deceased.  There
    was some evidence supporting both versions, in addition to the testimony of the
    appellant and of Antonucci.

[8]

The appellant and Antonucci approached the Tardiff
    residence. Antonucci knocked on the door and Davis came out moments later.  After some kind of confrontation with
    Antonucci, he approached the appellant and asked Antonucci if the appellant was
    his heavy.  According to the appellant,
    he started to panic as Davis approached.  He pulled out Antonuccis gun and fired a warning shot into the
    ground.  Davis kept charging at him and
    began to punch him.  The appellant
    attempted to protect himself as Davis punched him.  The appellant dropped the gun as he fell into
    a snowbank.  He saw Antonucci run up, pick
    up the gun and shoot Davis three times.  Antonucci testified that he never picked up the gun; rather the
    appellant fired the warning shot and then fired three more shots into
    Davis.

[9]

None of the people who came with the appellant and
    Antonucci or from the Tardiff home testified to seeing who fired the shots into
    Davis.  There was one independent witness
    who did see the shooting.  Tardiffs
    next-door neighbour, Heather-Anne Ference, described the confrontation in a way
    that indicated that the appellant was the shooter of both the warning shot and
    the three fatal shots.  However, in
    cross-examination, her evidence became somewhat confused and the appellant
    submits that her description of the shooters clothing more closely resembled
    the clothing worn by Antonucci.

[10]

After the shooting, Antonucci and the appellant ran back
    to the car and Hicken drove them back to the appellants apartment.  All four men and the appellants girlfriend entered
    the appellants apartment.  According to
    the appellant, Antonucci told him not to say anything about the shooting.  According to Antonucci, the appellant
    threatened to harm Antonuccis daughter and girlfriend if he said anything to
    the police.  He saw the appellant put the
    gun in his safe.  The appellant denied
    this.  After Antonucci and Hicken left
    the appellants apartment, the appellant and Pangborn packed up the contents of
    the safe to take to his mothers house on the Oneida reserve.  According to the appellant, the safe only
    contained some marijuana and $3500.  According to Pangborn, they also packed up a gun, which looked like the
    gun from the shooting.  Pangborn
    testified that he had seen a gun at the appellants apartment on an earlier
    occasion.  The appellant explained that
    he took the items out of his apartment because he assumed the police would be
    coming as a result of the shooting and he did not think it would look good for
    them to find the marijuana and cash.

[11]

Antonucci testified that the following day, the
    appellant told him to burn his clothes.  The appellant denied this and testified that in fact Antonucci told him
    to get rid of his clothes.  Upon his
    arrest, the appellant gave a statement to the police in which he denied being
    at the scene of the shooting.  At trial,
    he testified that he lied because he was scared and had agreed with Antonucci
    not to give evidence against him.  For
    his part, Antonucci also lied to the police and originally identified an
    innocent person as the shooter.

[12]

Gunshot residue was found on the appellants and
    Antonuccis clothing.  It was not
    possible to know whether the residue was from holding the gun or being near to
    it when it was discharged.  The deceased
    suffered three gunshot wounds: one in the neck, chest and thigh. The gunshot
    wound to the neck was fatal.

THE GROUNDS OF APPEAL

[13]

The appellant raises the following grounds of appeal:

(1)

Misdirection with respect to post-offence conduct.

(2)

Failure to accurately summarize the evidence in support
    of the defence in the charge to the jury.

(3)

Misdirection with respect to the mental element for
    murder.

(4)

Misdirection with respect to the fault requirement for manslaughter.

(5)

Misdirection with respect to the weapons offences.

(6)

Failure to leave the defence of accident.

ANALYSIS

(1)       Misdirection
    with respect to post-offence conduct

[14]

There were significant pieces of post-offence conduct
    that the Crown relied upon to prove that the appellant had fired the fatal
    shots.  Depending upon the version of
    events accepted by the jury, that evidence included the flight from the scene,
    threats to Antonucci, disposal of the gun and the lies to the police.  The charge to the jury specifically dealing
    with post-offence conduct was brief:

Look at the evidence in this case that happened
    after the shooting, evidence of what a person did or said after the
    offence.  What Mr. Cornelius did, things
    like allegations that he threatened Justin [Antonucci], allegations that he
    disposed of items and so on, may indicate that it is what a person would do if
    they were guilty but it may not.  It may
    be consistent with a person who has committed the offence and inconsistent with
    the evidence of someone who did not, or there may be an explanation for it and
    in this case, Cornelius gave an explanation for the trip to the reserve and as
    I recall, he denied any threats.

[15]

In reviewing the appellants testimony, the trial judge
    touched upon the gun, noting that the appellant denied taking the gun back to
    his apartment.  He did not otherwise deal
    with the post-offence conduct.

[16]

The appellant submits that the charge to the jury
    concerning after-the-fact conduct was deficient in failing to explain:

·

the need to be cautious about drawing
    incriminatory inferences from such conduct;

·

the need to decide whether the conduct even
    occurred;

·

the need to consider alternate innocent
    explanations such as panic, fear or embarrassment;

·

the need to consider whether the conduct was
    referable to some other offence such as handling the gun or commission of drug
    offences;

·

the need to consider whether the conduct was
    referable only to culpability for the homicide, not murder.

[17]

While the appellant submits that the level of
    culpability was an issue in this case, i.e. whether the appellant was guilty of
    murder or manslaughter, the principal issue was whether the Crown proved that
    the appellant had fired the three fatal shots.  The appellant admitted firing the warning shot, in self-defence, but
    testified that it was Antonucci who fired the fatal shots.  The Crowns case was that it was the
    appellant that fired all of the shots, including the fatal shots.  The only items left to the jury by the trial
    judge on the issue of identity, or as the trial judge put it, may be
    consistent with a person who has committed the offence, were the threats to
    Antonucci and the disposal of the items.  None of the other potential pieces of evidence were left to the jury as
    post-offence conduct.  This is not
    surprising given that Antonucci also fled the scene and lied to the police.

[18]

The most recent decision from the Supreme Court of
    Canada on the directions to be given to the jury in cases where there is
    evidence of post-offence conduct is
R. v.
    White
(2011), 267 C.C.C. (3d) 452.  While there were three sets of reasons, the main issue dividing the
    members of the court was the application of the law to the particular set of
    facts.  As I read the decision, there was
    little dispute as to the legal principles.  The point that principally divided the members of the court was the use
    to be made of demeanour evidence as potentially giving rise to an inference of
    consciousness of guilt.  That issue does
    not arise in this case.

[19]

The principles relevant to this case were set out by
    Binnie J., writing for himself and McLachlin and Fish JJ.  While he was in dissent, Binnie J.s analysis
    of the legal principles was adopted by Charron J. writing for herself and
    Deschamps J.  For the purposes of this
    case, the important points are set out in paragraphs 137 to 140 of the reasons
    of Binnie J.  Charron J. expressed her
    agreement with those principles at paragraphs 105 and 107 of her reasons.  I would summarize the applicable principles
    as follows:

1.         It
    is not the case that anything done by an accused after the offence is subject
    to a special warning.

2.         The
    general rule is now, as in the past, that it is for the jury to decide, on the
    basis of the evidence as a whole, whether the post-offence conduct put in
    evidence against the accused is related to the commission of the crime before
    them rather than to something else, and if so, how much weight, if any, such
    evidence should be accorded in the final determination of guilt or innocence.
    For the trial judge to interfere in that process will in most cases constitute
    a usurpation of the jury's exclusive fact-finding role: para. 137.

3.         However, there may be cases where a
    warning is required because jurors may attach more weight to the post-offence
    conduct than is warranted.  This risk
    exists with respect to some types of post-offence conduct relied upon by the
    Crown and in those cases it only makes sense for the judges to alert the jurors
    to what the courts have collectively learned over the years, especially when
    that learning may for some jurors be counter-intuitive: para. 138.

4.         However,
    the bulk of so-called post-offence conduct will simply flow into the record as
    an unremarkable part of the narrative: para. 140.

5.         Like
    all other circumstantial evidence, evidence of post-offence conduct will be
    relevant and admissible depending on whether it has some tendency as a matter
    of logic, common sense, and human experience... to help resolve the issues in
    the case: para. 140.

[20]

In my view, the two items of evidence left to the jury in
    this case did not require a special caution.  The threats to Antonucci and removing the items for the safe do not fall
    within the category of evidence, like the flight evidence considered in
White
, where there was a risk that the
    jury would give it more weight than warranted, or as it was expressed by
    Rothstein J. at para. 23, the risk that the jury would jump too quickly from
    evidence of post-offence conduct to an inference of guilt.

[21]

I begin with the threats to Antonucci.  The appellants position on this issue was
    simple and straightforward.  He denied
    making the threats and, to the contrary, claimed that it was Antonucci who
    advised him to get rid of his clothing.  There was nothing remarkable about this evidence.  So far as the appellant knew, only he and
    Antonucci were witnesses to the shooting.  If he threatened Antonucci it was for only one purpose, to persuade
    Antonucci to cover-up for him.  This was
    the kind of evidence that could be safely left to the jury members to use their
    own experience and common sense to decide what weight to attach to it.

[22]

The removal of the items from the safe to hide them at
    the appellants mothers reserve falls within a similar category.  I begin with the appellants version.  The appellant testified that he took the money
    and the marijuana from the safe because he was concerned that the police would
    come to his apartment and it would not look good.  It might have been helpful had the trial
    judge reminded the jury of this explanation, but this case did not turn on the disposal
    of the marijuana and the money.  The real
    issue was the disposal of the gun.  And,
    the probative value of the evidence concerning the gun turned not on any
    inference of consciousness of guilt, but simply on whether the appellant had
    the gun in his possession after the shooting.  Again there was no risk that the jury would place undue emphasis on the
    question of disposal of the gun.  Their
    attention would be focused on the evidence of Pangborn, Antonucci and the
    appellant.  If the appellants version of
    the shooting was correct, he would not have had possession of the gun after the
    killing.  If Antonucci and Pangborn were
    telling the truth, and the appellant had possession of the gun, this was highly
    probative evidence supporting an inference that he had shot the deceased.

[23]

In my view, this was one of those cases, possibly rare,
    where no special cautionary instructions were required to enable the jury to
    properly deal with the post-offence conduct.  This evidence could be dealt with like the other circumstantial evidence
    in the case, leaving it for the jury to draw what inferences they thought
    proper.

[24]

I am also satisfied that this is not a case where it
    was necessary to instruct the jury expressly that this evidence could be
    relevant only to culpability for an unlawful homicide, not murder.  In the brief passage dealing with the
    post-offence conduct, the trial judge simply told the jury they could consider
    the evidence to decide whether it was consistent with a person who has
    committed the offence.  The passage
    about this evidence almost immediately followed the trial judges
W.D.
instruction where the trial judge
    reminded the jury that the appellant had testified and denied that he shot and
    killed the deceased.  The jury would not
    have had any difficulty understanding that the purpose of this evidence was to
    identify the killer.

[25]

I would not give effect to this ground of appeal.

(2)       Failure to accurately
    summarize the evidence in support of the defence in the charge to the jury

[26]

The appellant submits that the trial judge erred in
    failing to fully and accurately summarize the evidence favouring the defence in
    two respects: (1) the evidence of Heather-Anne Ference, the next-door neighbour,
    and (2) Tyler Pangborns evidence about the gun being removed from the safe.

[27]

The complaint about Ms. Ferences evidence turns on her
    description of the clothing worn by the shooter.  The appellant submits that the trial judge
    erred in failing to instruct the jury that Ms. Ference testified that the
    shooter was wearing a white shirt under a dark jacket.  According to the appellant, this was a
    significant omission because several witnesses testified that Antonucci was
    wearing a white shirt under a grey ski jacket whereas the appellant was wearing
    a red hooded sweatshirt.  In their
    submissions, counsel carefully reviewed Ms. Ferences evidence.  Having considered those submissions and
    reviewed Ms. Ferences testimony I am not satisfied that the trial judge erred.

[28]

Central to the appellants submission is the assertion
    that Ms. Ference described the shooter as wearing a white shirt.  To appreciate the nature of this submission,
    I need to expand somewhat on Ms. Ferences evidence as to what occurred that
    night.  She had gone to bed in her
    bedroom on the second floor of her house, which was next door to the Tardiff
    residence.  At some point, her attention
    was attracted by a noise like a door slamming.  She looked out the window and down onto the scene.  In her description of the events she referred
    to the three people she saw as A, B and C.  A is obviously the deceased.  She
    described A coming out of the house and confronting B who was directly in front
    of him, with C being over to the side.  B
    backed up towards a snow bank as A moved forward.  By this time she had lost track of C.  She then saw B bring his left hand up and she
    heard a bang and saw a flash.  As hand
    went up to his face and then there was another shot and A grabbed his stomach.  There was a third shot and A tried to run
    back to the Tardiff residence but he collapsed.  Ms. Ference immediately called 911.  She next saw C in a car apparently gesturing
    at B to come to the car.  B headed
    towards the car and at one point bent down and picked something up.

[29]

In examination-in-chief, Ms. Ference described B (the
    shooter) as having a pretty-boy haircut meaning messy on top and short on the
    sides.  He was wearing a black leather
    jacket, but not your typical jacket, it was more like a denim jacket with no
    collar and a zipper, with a light or light blue shirt underneath and some
    dark pants. Later, she also described the shirt as the white shirt, or the
    light blue, like it was a light coloured shirt. She was unable to give much of
    a description of C as she really wasnt paying attention to him.

[30]

In cross-examination, trial counsel for the appellant
    used diagrams to try to understand Ms. Ferences evidence.  It is in the use of these diagrams that the
    descriptions become a little more confusing.  Counsel put to Ms. Ference an exhibit from the preliminary inquiry in
    which she also used A, B and C but B at the preliminary was C at the trial and
    C at the preliminary was B at the trial.  To make the evidence less confusing, counsel had Ms. Ference mark a new
    exhibit in which the shooter is described as white shirt.  However, Ms. Ference maintained her
    description of the shooter as wearing a leather jacket with a light coloured
    shirt.  She adopted her preliminary
    inquiry evidence that the third person was wearing a jacket and a pair of
    jeans, which she described as darker clothes.  She also described the shooter as having a darker complexion than the
    third person.

[31]

The upshot of this evidence is that the shooter had the
    pretty-boy haircut, was of darker complexion than the third person and was
    wearing a dark jacket with a light coloured shirt.  The third person was wearing darker clothes,
    but Ms. Ference did not describe the colour of his shirt.  The jury was in the best position to compare
    the complexions of the appellant and Antonucci.  However, the photographs that were taken of both men shortly after the
    shooting show the appellant having a darker complexion than Antonucci, and his
    haircut matches the description of the shooter; Antonuccis haircut is
    different.  The other point that must be
    made about the photograph is that while the appellant claimed that he was hit
    in the face by the deceased, there is no sign of injury.  Finally, the shooter used his left hand and
    the appellant is left-handed. Mr. Antonucci is right-handed.

[32]

The evidence as to what the appellant and Antonucci
    were wearing is far from clear.  Descriptions of Antonuccis shirt vary from a white shirt to a black and
    white shirt, all black shirt, all white shirt, striped shirt.  The description of the appellants clothing
    was consistent as a red hooded sweatshirt.

[33]

It may be that Antonuccis clothing more closely
    resembled the clothing of the shooter as described by Ms. Ference, but it would
    not be correct to say that she unequivocally testified that the shooter was
    wearing a white shirt.  Thus, the trial
    judge was not required to charge the jury to that effect.  The jury was aware of the competing
    inferences to be drawn from Ms. Ferences evidence from counsels jury
    addresses.  The trial judges review of
    Ms. Ferences evidence was extensive and otherwise accurate, but for one
    matter.  In the charge to the jury he
    described the shooter as having a lighter complexion than the third
    person.  Following an objection from
    Crown counsel and review of the recording of the evidence, the trial judge
    corrected this error.  Defence counsel at
    trial (not Ms. Presser) did not object to the trial judges summary of Ms.
    Ferences evidence even when the issue concerning her description of the
    complexion was raised by Crown counsel.

[34]

The trial judges failure to refer to this single piece
    of evidence about the colour of the shirt of the shooter did not breach his
    duty to fairly put the evidence in support of the defence.

[35]

The complaint about the trial judges treatment of Mr.
    Pangborns evidence about seeing the appellant put the gun in a bag concerns an
    apparent admission by Mr.
Pangborn
that he saw a
    black object rather than a gun put in the bag.  During examination-in-chief, by adopting two
    statements he made to the police, Mr. Pangborn testified that he had seen the
    appellant with a handgun about a month before the shooting.  In the statements, Pangborn described the gun
    in some detail.  He further testified in
    chief that he saw the appellant pack that same gun in the bag along with the
    marijuana before they went to the Reserve.  In cross-examination he was referred to the testimony he gave at the
    preliminary inquiry, where he said that the gun the appellant put in the bag
    was not the one the appellant had shown him earlier.  While he maintained that his testimony at
    trial was correct, he conceded that it could have been a different gun.  He explained that he was not very familiar
    with guns.  Finally, while he stated on
    several occasions that he saw the appellant put a gun in the bag, he somewhat
    qualified that statement in this exchange with defence counsel:

Q.        Now,
    you say, sir, that at some point, you see Mr. Cornelius put a weapon into a
    bag, is that correct?

A.        Yes.

Q.        And
    if I were to suggest to you, sir, that that in fact, is not true and that that
    did not happen, what would you have to say to that?

A.        I
    dont know.

Q.        Well,
    is it possible that you didnt see that?

A.
No, I seen  well, I thought I seen the gun
    put in there.  Like, I see a black object
    put into the bag.

Q.        Now,
    its either you saw that or you think you saw that, so its one or the other.

A.
Okay, I think I seen the gun go into the bag
.

[Emphasis added.]

[36]

The cross-examination continued with a few more
    questions that simply demonstrated Mr. Pangborn was having difficulty
    understanding counsels questions and, in particular, in understanding how he
    was to respond to suggestions made by counsel with which he was to agree or
    disagree.  He did disagree with counsels
    suggestion that he had not seen a gun in the appellants possession on a
    previous occasion.

[37]

In his summary of Mr. Pangborns evidence, the trial
    judge accurately pointed out that Mr. Pangborn conceded in cross-examination
    that the gun he saw the appellant put in the bag may have been different from
    the one he saw on the earlier occasion.  The trial judge did not refer to Mr. Pangborns further concession when
    he referred to a black object being put in the bag.  In my view, the failure to refer to this
    piece of evidence did not deprive the appellant of a fair trial.  It is not at all clear that Mr. Pangborn
    resiled from his earlier and later testimony that he saw a gun put in the
    bag.  In context, this evidence was just
    not critical to the defence case.  Again
    no objection was taken by trial counsel to the trial judges summary of Mr.
    Pangborns evidence.

[38]

I would not give effect to this ground of appeal.

(3)       Misdirection
    with respect to the mental element for murder

[39]

This issue can be dealt with briefly.  On two occasions, in reciting the elements of
    murder as defined in s. 229(a)(ii) of the
Criminal
    Code
, the trial judge told the jury that they had to decide if the
    appellant meant to kill the deceased or meant to cause him bodily harm and knew
    that it was likely that it would kill Davis or [was] reckless as to whether or
    not he died.  The correct instruction
    using the word and instead of or was given before and after the erroneous
    instructions.  More importantly, the
    correct description of the elements of the offence was contained in the
    decision tree, copies of which were given to the jurors during their
    deliberations.  The trial judges mistake
    was harmless in the circumstances.

(4)       Misdirection
    with respect to the fault requirement for manslaughter

[40]

At the request of the defence, the trial judge told the
    jury that they could reach a verdict of manslaughter by two different routes.  The most obvious route was as an included
    offence to murder.  But, the defence also
    wanted manslaughter left to the jury on the theory that the warning shot, which
    the appellant admittedly fired, was an unlawful act that contributed to the
    death, even if it was Antonucci who fired the fatal shots.  The defence then argued that the jury could
    acquit even of manslaughter, on the basis that this unlawful act did not cause
    the death.  This ground of appeal
    concerns this alternative route to manslaughter.

[41]

The appellant submits that in dealing with this
    alternative route to manslaughter the trial judge failed to adequately define
    for the jury the fault element of unlawful act manslaughter.  In my view, there is no merit to this ground
    of appeal.  At trial, there was no
    dispute that shooting a firearm in the direction of an unarmed man was an
    unlawful act for the purpose of grounding liability for manslaughter.  The issue on this theory of manslaughter was
    whether the act of Antonucci in picking up the gun and shooting the deceased
    three times, broke the chain of causation.  The question of whether the shooting of the gun at the unarmed deceased
    in a warning shot was an unlawful act was simply never an issue in the
    case.  Defence counsel, who had requested
    that this theory of liability be left to the jury, raised no objection to the
    directions given.

[42]

Finally, it seems to me that even if the charge was
    deficient, there was no substantial wrong or miscarriage of justice.  The way that the charge to the jury was structured,
    the jury would only reach unlawful act manslaughter based on the warning shot
    if they had concluded that the appellant did not fire the fatal shots.  Having convicted of murder, it is apparent
    that the jury was satisfied beyond a reasonable doubt that the appellant fired
    the fatal shots.

[43]

This is not a case like
R. v. Haughton
, [1994] 3 S.C.R. 516, where the court was unwilling
    to reason back from the jurys verdict convicting of the full offence where an
    included offence was not left to the jury.  As Sopinka J. said in
Haughton
:

The application of s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    requires the court to consider whether a jury properly instructed could, acting
    reasonably, have come to a different conclusion absent the error.
In applying this test the findings of the
    jury in the case under appeal may be a factor in determining what the
    hypothetical reasonable jury would have done, provided those findings are not
    tainted by the error.
In cases in which an included offence is not left
    with the jury, a conviction by the jury of the more serious offence cannot
    generally be relied on by reason of the fact that it may very well be a
    reaction against a complete acquittal.
There
    is an apprehension that the jury convicted because they had no other
    alternative than acquittal and acquittal was unpalatable.
In this case, the
    jury had an alternative: they could have convicted of manslaughter. It cannot
    be said that it did not do so by reason of the failure to charge them by
    reference to the objective standard of liability with respect to manslaughter.
    In convicting of murder the jury must have found that the appellant had
    subjective foresight of death. It is impossible to hold that they came to this
    conclusion because they were unable to conclude the appellant had subjective
    foresight of bodily harm.  [Emphasis
    added.]

[44]

In my view the jurys verdict was not tainted by the
    alleged error.  In this case, the jury
    had two routes to manslaughter; two bases to avoid the unpalatable choice of a
    complete acquittal.  The complaint here
    really amounts to a submission that it would have been too easy for the jury to
    have convicted of manslaughter.  Since the
    jury convicted of murder, the alleged misdirection respecting the warning-shot
    route to manslaughter was of no moment.

(5)       Misdirection
    with respect to the weapons offences

[45]

This final ground of appeal relates to the summary manner
    in which the trial judge dealt with the weapons offences.  The appellant submits that the trial judge
    directed verdicts of guilty with respect to the weapons offences.  Like the previous ground of appeal, this
    ground of appeal is founded on the theory that the appellant did not fire the
    fatal shots.  The appellants submission
    on these counts rests on the proposition that the appellant did not bring the
    gun to the altercation, that he took the gun from Antonucci to keep the peace
    and that he did not fire the fatal shots.  The appellants own evidence that he drew the gun and fired on the
    unarmed victim coupled with the jurys finding that he fired the three fatal
    shots, renders any possible error of no consequence.

The Defence of Accident

[46]

In oral argument, counsel for the appellant raised a
    further ground of appeal; that the trial judge erred in failing to leave the
    defence of accident.  There are two
    concerns with this ground of appeal.  First, in my view, there is no air of reality to the defence of
    accident.  Second, in any event, based on
    the charge to the jury, if the jury had any doubt that the gun discharged
    accidentally, they would only have convicted of manslaughter.  Given that the jury rejected both routes to
    manslaughter, it can safely be said that the jury had no doubt that the
    appellant intentionally discharged the gun.

[47]

The defence of accident, raised for the first time on
    appeal, is based on the theory that even if the jury accepts that the appellant
    was the shooter of the fatal shots, it is possible that the gun went off
    accidentally as the appellant fought with the deceased.  That defence counsel did not seek to have
    this defence put to the jury is not, of course, fatal to this ground of appeal,
    provided there is an air of reality to the defence:
R. v.
    Mathisen
(2008), 239 C.C.C. (3d) 63 (Ont. C.A.) at para. 93.  However, there is no air of reality to this
    theory; it would require a finding that the gun discharged accidentally three
    times, into the deceased, during the course of this struggle.  It is inconsistent with all of the accounts
    given by all the witnesses, especially the independent witness, Heather-Anne
    Ference.

[48]

Counsel for the appellant relies upon the version of
    events given by Mr. Pangborn and Mr. Antonucci to support an accident defence. However,
    Mr. Pangborn only testified about a struggle before the appellant fired the
    warning shot.  There is nothing in his
    evidence that speaks to the manner in which the three shots that hit the
    deceased occurred. Mr. Antonuccis evidence also does not assist. He testified
    to hearing three shots. The first shot he heard may have been the warning shot.
    In examination in-chief, he testified that the second shot occurred during what
    he described to be a scuffle. But, the third shot went off when the scuffle
    was over and both men were standing. In cross-examination, he testified that
    the last two shots may both have occurred when the two men were standing after
    the scuffle. In fact, defence counsel suggested to Mr. Antonucci that both shots
    were fired when the two men were standing. Mr Antonucci said he was not sure.

[49]

In any event, any doubt that the shots were fired
    accidentally would have translated into a verdict of manslaughter.  The jury was charged that if the appellant
    did not have the intent for murder he could only be convicted of
    manslaughter.  If indeed the jury had a
    reasonable doubt that the appellant discharged the gun three times
    accidentally, he could not have had the intent for murder.

[50]

I would not give effect to this ground of appeal.

DISPOSITION

[51]

Accordingly, I would dismiss the appeal from
    conviction.

Signature:      M. Rosenberg J.A.

I
    agree R. G. Juriansz J.A.

I
    agree H. S.
LaForme
J.A.

RELEASED: MR AUGUST 10, 2011


CITATION: R. v. Ezard, 2011 ONCA 545

DATE: 20110805

DOCKET: C52066

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Feldman and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Scott Ezard

Appellant

John Hale and Anne-Marie McElroy, for the appellant

Leslie Paine, for the respondent

Heard: June 7, 2011

On appeal from conviction entered by Justice Michel Z.
          Charbonneau of the Superior Court of Justice, sitting without a jury, dated
          December 21, 2009.

Feldman J.A:

[1]

The appellant was convicted
    of possession of child pornography. Videos of child pornography were found on
    his computer and in areas that had been erased from the computer but remained
    available to forensic examination. The appellants wife alerted the police.
    Both he and his wife had access to the computer and there was no evidence
    identifying who had downloaded the child pornography. In their testimony, the
    appellant and his wife both denied being responsible for the presence of the
    material on the computer, and each pointed the finger at the other. The
    appellant appeals his conviction on the basis that the reasons of the trial
    judge are inadequate to explain why his testimony was rejected and his wifes
    testimony was accepted.

FACTS

[2]

At the time of the
    charges in June, 2008, the appellant was a 35 year old registered nurse. He
    worked as a surgical nurse in the Ottawa General Hospital, and lived with his
    wife in Cornwall Ontario, about an hours drive away. Wendy Ezard did not work.

[3]

In February, 2008,
    Mrs. Ezard suspected that her husband was having an affair and decided to
    investigate his computer for clues. While she found no evidence of an affair,
    she testified that she found evidence that her husband had visited computer
    sites that contained incest, bestiality and child pornography. She and her
    husband had previously viewed adult pornography together, but she refused to
    continue at one point and it resulted in some marriage counselling.

[4]

She recorded the sites
    she found in a notebook. She continued to do this through the end of May when
    she decided to go to the police. She first used a pretence that she was there
    for a friend, but soon acknowledged that she was talking about her own husband.
    She showed the officer her notebook and gave him copies of it. She also told
    him that she had been investigating pills that her husband stole from the
    hospital.

[5]

Mrs.
    Ezard described what she did in her testimony:

Q.        You
    indicated in your earlier evidence that around the middle of February you
    started, of 2008, you started this investigation. What steps did you take with
    respect to the notebook when that was

A.         Every time  uhm  like I said, my
    husband either went to work or went to visit his parents or even went to like Blockbusters
    or whatnot, Id go on his computer and check for the sites and write down all
    the sites as I saw them printed on the screen and I would go through  uhm

Q.        Okay. And can you just give the court a
    general idea of what types of things she wrote down?

A.        In general, it was  uhh  for example,
    the incest. His grandfather had sex with granddaughter. For the bestiality, it
    was  uhm  girl has sex on phone or  yeah girl has sex while on phone and it
    was a dog. So with all incest, bestiality, incest, bestiality and child porn.
    It would be preteen.net, - uhm  webs youngest.com. Uhm  he would purposely in
    the Google search bar, it was amateur porn.com that he looked for that.

Q.        Okay.

A.        So, it was

Q.        So it was recording those kinds of
    things?

A.        Yes.

Q.        Did you record anything besides the
    titles and search terms that you found?

A.        No, I did not want to open up what the
    sites actually were. There was only one that I actually  theres actually only
    one site that I saw of all this book and that turned my stomach and I didnt
    want to see anymore.

[6]

She later described in
    more detail how she conducted the computer investigation and exactly what she
    found and how she found it in the following portion of her examination-in-chief:

A.        Uhm  as I said, I would, as soon as I
    got an opportunity to get on his computer, - uhm  I would try to do that and
    uh  because I would go to bed, like, you know, 11  12 oclock at night or
    whatever and he would be on his computer till, you know, 2, 3, 4 oclock. Im
    not sure because I was fast asleep. So whenever he went away  went off to
    work, I would that morning after hes been on all night, I would go and check
    to see what I could find. See what I can find out what he was up to all night,
    because he wasnt there with me so, and thats what I used to do.

Q.        Okay. And what kind of things did you
    find?

A.        Uhm  uh  a 16 year old brother doing
    his  sorry, let me rephrase, a 17 year brother doing a 16-year-old sister,
    bestiality, you know, girl on phone having sex with dog. Incest, bestiality,
    like I said, child porn it would be, you know, 16 year old having sex with an
    orgy with many of people in a hotel room or it was just

Q.        And you indicated earlier that you only
    look at one of these things, so

A.        Yes.

Q.         what is the source of these
    descriptions?

A.        Our  some of it is, we had a program on
    the computer called LimeWire, and it was connected to my laptop as well,
    because we both share the same computer program, so when he was looking at a
    particular site it would show up on my computer, and I could see, not the
    pictures, but it would tell me like the description of the site, like you know,
    whatever the site may be, you know, webs youngest.com they show it and thats
    how come I just  programs like that LimeWire and that.

Q.        Okay. And how were your computers
    connected?

A.        We had a internet  uh  wireless router
    and  because I had a laptop. So thats how our computers connected were
    through the wireless router.

Q.        Okay. And the  please tell us how these
    descriptors would come up on your computer from your husbands?

A.        I  like Im not a technical person, but
    being that we both  both computers shared iTunes or iPod iTunes and we both
    I downloaded that other website, LimeWire, onto my computer as well for music
    that I was trying to look for particular music, that it with the router I was
    able to see. I dont know. Id have to get a technical person in but that I
    dont know but I was able to see it.

Q.        Okay. Did you have your copy of the
    program open?

A.        yes.

Q.        Okay. This happen when you did not, like
    if you were working on something else on your computer?

A.        No, I had to physically open up my
    program in order to see what he was doing on his.

[7]

Mrs. Ezard went to the
    police on May 27, 2008. Based on an investigation of the sites listed in her
    notebook and on her story of how she discovered this material on the computer,
    the police obtained a search warrant to search the computer and to search other
    areas of the house for the pills she had referred to. They executed the warrant
    on June 3, during the day when the appellant was at work, but while Mrs. Ezard
    was at home.

[8]

The forensic computer
    expert, Detective Coakley examined the desktop computer and found some child
    pornography on it. Mrs. Ezard asked the police to check her laptop to see if
    anything was on it. Another officer, Constable Spence, checked her computer and
    found nothing. It was not seized. Mrs. Ezard also directed the police to the
    master bedroom and pointed out several pills that she suggested her husband had
    taken from the hospital where he worked. The police seized the desktop
    computer, an external hard-drive and the pills. They checked on site some small
    memory sticks beside the main computer but these contained no child
    pornography.

[9]

When the appellant
    arrived home from work at around 8 p.m. that evening, he was arrested.

[10]

Detective Coakley conducted a forensic investigation of the hard drive
    in the appellants home computer as well as the external hard drive. He
    prepared a report that was filed as an exhibit at trial. He also testified as
    an expert witness at the trial. His examination disclosed thousands of images,
    none of which was child pornography. It also disclosed 8312 movies. Of those, between
    137 and 149 were identified or classified as child pornography. All but six of
    the child pornography movies that were found were in unallocated space, that
    is, they had been deleted or erased, but remained retrievable by a forensic
    examination. These were not dated. The six that had not been deleted were dated
    May 31, June 1 and June 2, 2008, after Mrs. Ezard had gone to the police.

[11]

The appellants defence was that either 1) the child pornography
    downloaded automatically as he had been experiencing pop-ups, he had seen what
    might have been child pornography and had taken the computer in to be fixed as
    a result, or 2) his wife had done it out of malice. He testified and denied the
    offence. He also called three friends or former friends who gave some evidence
    either against Mrs. Ezards character or in support of his character.

[12]

In his reasons for judgment, the trial judge referred to the charge and
    the law, the execution of the search warrant by the police, the expert evidence
    of Detective Coakley and his findings and conclusions which the trial judge
    accepted, the evidence of Mrs. Ezard about her discovery of the pornographic
    material, the keeping of the notebook, her struggle about what to do since her
    husband was her sole source of financial support, her decision to go to the
    police, the evidence of the appellant denying any involvement with child
    pornography and his two theories of how it could have come onto his computer.
    After referring to the burden of proof and the formulation from
W.(D.)
,
    the trial judge made the following finding regarding the guilt of the accused
    and the credibility of the two main witnesses, the appellant and his wife:

My review of the whole of the evidence convinces
    me, beyond a reasonable doubt, that Mr. Ezard is guilty as charged.

I find that Mrs. Ezard is a credible witness. It is
    clear that the marriage of Mr. and Mrs. Ezard had been in difficulty for
    several years. Mrs. Ezard, when she first started secretly examining the
    computer, believed or was suspicious that Mr. Ezard was cheating on her and I
    have no hesitation in believing that if she had found that he was cheating that
    she would have been able to do something about it.

However, I find that she never found proof of
    cheating, but rather found proof that Mr. Ezard was seriously involved with all
    types of pornography, being child, adult, bestiality. I find she was upset by
    this situation and it caused her substantial anguish to have to go to the
    police. She had nothing to gain, in fact, in going to the police, rather she
    had much to lose because Mr. Ezard had a very good job and had been the sole
    breadwinner for the duration of the marriage.

In the context of the whole evidence, there is
    really no evidence which supports the possibility, suggested by Mr. Ezard, that
    it is Mrs. Ezard that put this child pornography on the computer to get at him.

I find that Mr. Ezard was the main user of the
    computer. I accept the evidence of Det. Coakley concerning the very large
    quantity of child pornography material downloaded and/or viewed or previewed.
    The fact it was downloaded as far back as 2007 and the fact that no malware was
    responsible or outside agent could explain the presence of the child
    pornography on the computer.

I find that Mr. Ezard had actual control of the
    child pornography found on the computer.

His evidence viewed in the context of the overall
    evidence does not raise a reasonable doubt about his guilt. The possibilities
    that the child pornography could have been uploaded to the computer from
    another computer as the result of malware must be rejected in view of Det.
    Coakleys evidence.

Similarly, there is no evidence whatsoever that supports
    the proposition that Mrs. Ezard downloaded the child pornography in question.

The Crown has therefore established Mr. Ezards
    guilt beyond a reasonable doubt and I therefore find him guilty.

ISSUES

[13]

The appellant raises two central issues:

(1)       Were the reasons for judgment inadequate in that
    the trial judge did not adequately explain why he rejected the evidence of the
    appellant and accepted the evidence of the appellants estranged wife?

(2)       Did
    the trial judge fail to analyze credibility in accordance with
R. v. W.(D).,
insofar as he failed to assess the appellants evidence in the context of
    all the evidence?

[14]

As these issues are interrelated, I will deal with them together.

LAW AND ANALYSIS

[15]

In
R. v. Dinardo,
[2008] 1 S.C.R. 788, a decision of Charron J.,
    the Supreme Court of Canada again addressed how a Court of Appeal should assess
    the sufficiency of a trial judges reasons, especially where credibility is in
    issue, at paras 24-27:

In
R. v. Sheppard
, [2002] 1 S.C.R. 869, 2002
    SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons
    serve many purposes; in particular, they explain the courts disposition of the
    case and facilitate appellate review of findings made at trial. The content of
    the duty will, of course, depend upon the exigencies of the case. As this Court
    has noted, the requirement of reasons is tied to their purpose and the purpose
    varies with the context (
Sheppard
, at para. 24).

Sheppard
instructs appeal courts to adopt a
    functional approach to reviewing the sufficiency of reasons (para. 55). The
    inquiry should not be conducted in the abstract, but should be directed at
    whether the reasons respond to the cases live issues, having regard to the
    evidence as a whole and the submissions of counsel
(R. v. D. (J.J.R.)
(2006),
    215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient
    reasons will only be allowed where the trial judges reasons are so deficient
    that they foreclose meaningful appellate review:
Sheppard
, at para. 25.

At the trial level, reasons justify and explain
    the result (
Sheppar
d, at para. 24). Where a case turns largely on
    determination of credibility, the sufficiency of the reasons should be
    considered in light of the deference afforded to trial judges on credibility
    findings. Rarely will the deficiencies in the trial judges credibility
    analysis, as expressed in the reasons for judgment, merit intervention on
    appeal. Nevertheless, a failure to sufficiently articulate how credibility
    concerns were resolved may constitute reversible error (see
R. v. Braich
,
    [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in
R. v.
    Gagnon
, [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know
    why the trial judge is left with no reasonable doubt:

Assessing credibility is not a science. It is
    very difficult for a trial judge to articulate with precision the complex
    intermingling of impressions that emerge after watching and listening to
    witnesses and attempting to reconcile the various versions of events. That is
    why this Court decided, most recently in
H.L
., that in the absence of a
    palpable and overriding error by the trial judge, his or her perceptions should
    be respected.

This does not mean that a court of appeal can
    abdicate its responsibility for reviewing the record to see whether the
    findings of fact are reasonably available. Moreover, where the charge is a
    serious one and where, as here, the evidence of a child contradicts the denial
    of an adult, an accused is entitled to know why the trial judge is left with no
    reasonable doubt. [paras. 20-21]

Reasons acquire particular importance where the
    trial judge must resolve confused and contradictory evidence on a key issue,
    unless the basis of the trial judges conclusion is apparent from the record (
Sheppard
,
    at para. 55). Here, the complainants evidence was not only confused, but
    contradicted as well by the accused. As I will now explain, it is my view that
    the trial judge fell into error by failing to explain how he reconciled the
    inconsistencies in the complainants testimony on the issue of whether she
    invented the allegations. I also conclude that the trial judges failure to
    provide such an explanation prejudiced the accuseds legal right to an appeal.

[16]

And at para 35, she stated that [t]he words of this court bear repeating:
    [The] accused is entitled to know why the trial judge is left with no
    reasonable doubt. (
Gagnon
, at para. 21)

[17]

In this case, the presence of child pornography on the computer, both
    deleted and undeleted was admitted. The live issue was how it got there and who
    was responsible for its presence. On another record, the reasons that were
    delivered by the trial judge may well have been sufficient to meet the tests
    and obligations set out by the Supreme Court of Canada. Furthermore, the trial
    judge was entitled to accept the evidence of any witness and reject the
    evidence of any other.

[18]

However, on the record before him, which contained numerous
    contradictions, the trial judge failed to adequately explain how he reconciled
    the important ones in order to conclude that he believed the wife and
    disbelieved the husband. Furthermore, from his reasons for judgment and
    sentence, it appears that the trial judge misapprehended certain of the
    evidence and that his misapprehensions may well have affected his assessment.

[19]

I will use three examples to illustrate the first problem. The first
    example is Mrs. Ezards contradictory account of how and when she investigated
    her husbands computer.  She first said that it was when he went out, whether
    to work, or to visit his parents or to go to Blockbuster, that she would go on
    his computer, check for sites visited in the Google search bar, such as amateur
    porn.com, and write them down. She said that after she went to bed at 11 p.m.,
    he would be on his computer until two, three, or four in the morning. Then in
    the morning, she would go on his computer and see what she could find.

[20]

She wrote down descriptions in her notebook but except for one, she did
    not view the actual content of the sites. When asked what was the source of the
    descriptions, she said that they had a program called LimeWire, that it was
    connected to her laptop as well as to his computer, that they shared the same
    computer program, so when he was looking at a particular site it would show up
    on my computer, and I could see, not the pictures, but it would tell me like
    the description of the site, like, you know, whatever the site may be, you
    know When asked how the two computers were connected, she said it was by
    wireless router. She further explained that she had to open her program in
    order to see what he was doing on his.

[21]

In cross-examination, Mrs. Ezard was asked whether when both of them were
    on LimeWire, what she saw on her computer should also have been on the
    appellants. She said more than likely but she wasnt looking at his computer.
    She also confirmed again that she only opened one site. She was asked if she
    remembered her video police statement and she said she did. She said that
    although she physically opened only one site, when she was sitting in her
    lazyboy chair she would bend forward to kind of see what he was seeing and I
    got little glimpses or Id go to the washroom. She suggested that he would try
    to angle his screen so that she couldnt see it.

[22]

Finally, following Mrs. Ezards testimony, Detective Coakley was
    recalled for further expert evidence. He was asked in cross-examination whether
    two people in the same home on two computers but on the same wireless network
    could see the mirror image of what was on the others computer. Although he
    couched his answers in examples and other methodologies, he said that using the
    LimeWire program, one could not. Nor was there any evidence of any child
    pornography found on Mrs. Ezards laptop.

[23]

To summarize, Mrs. Ezard gave conflicting versions of both how and when
    she investigated the child porn sites she says she found on her husbands
    computer. She claimed that he was going to sites using the LimeWire program
    that was also on her computer and that she could see what he was doing while he
    was doing it. The expert said that was not possible. She first claimed that he
    downloaded child porn after she went to bed and that she searched his computer
    during the day when he wasnt home.  Later she said she saw what was on his
    computer while she followed on her computer using LimeWire  Then she said she
    saw him accessing sites while she was in her lazyboy chair.

[24]

The second example relates to the trial judges failure to consider
    evidence that was capable of supporting the appellants position. The
    appellants defence in part was that given that child porn was found on his
    computer, his wife was such a vindictive woman that she must have done it to
    frame him.  This motive was accompanied by unlimited opportunity on the part of
    Mrs. Ezard. Although the trial judge acknowledged that this was one of the
    appellants alternative explanations for the presence of the offending
    material, he concluded that he believed Mrs. Ezard without explaining how he
    resolved these discrepancies in the evidence, and further concluded, without
    explanation, that there was no evidence to support the proposition that she was
    the one who did it.

[25]

In regard to the latter point, there was evidence that the user names
    associated with the appellants computer included Wendy (her name), as well
    as mojolady. Mrs. Ezard testified that mojolady was also the name of a
    joint e-mail account belonging to herself and her husband. Again, the trial
    judge makes no reference to this evidence. He does not explain why it did not
    raise a reasonable doubt as to whether it was Mrs. Ezard and not the appellant
    who was the user who downloaded the child pornography.

[26]

As a third example, , in rejecting the motive of vindictiveness
    suggested by the appellant, the trial judge does not refer to Mrs. Ezards
    deliberate attempts to have the appellant face charges in respect of apparent
    prescription sleep medication she alleged he obtained improperly from the
    hospital where he worked. She told the police about the prescription medication
    and showed them the pills when they came to execute the search warrant,
    explaining to the officers that there was no prescription for them. Although
    they seized the pills, nothing came of her allegations.
[1]

[27]

The case law makes it clear that a trial judge need not refer to or deal
    with discrepancies in respect of every piece of contradictory evidence.
    However, the judge must explain how he reconciled at least some of the evidence
    that supported the theory of the appellant and his potential innocence, in
    concluding that he was satisfied of guilt beyond a reasonable doubt.

[28]

This proposition links with the application of the principle in
W.(D.)
,
    raised by the appellant as the second ground of appeal. That issue also arose
    in
Dinardo
where Charron J. explained at para. 23:

What matters is that the substance of the
W.(D.)
instruction be respected. In a case that turns on credibility, such as this
    one, the trial judge must direct his or her mind to the decisive question of
    whether the accuseds evidence, considered in the context of the evidence as a
    whole, raises a reasonable doubt as to his guilt. Put differently, the trial
    judge must consider whether the evidence as a whole establishes the accuseds
    guilt beyond a reasonable doubt. In my view, the substantive concerns with the
    trial judges decision in this case can better be dealt with under the rubric
    of the sufficiency of his reasons for judgment.

[29]

I would respectfully adopt the same approach in this case. Although the
    trial judge stated that [the appellants] evidence viewed in the context of the
    overall evidence does not raise a reasonable doubt about his guilt, as I have
    discussed, he did not adequately explain why not. It is the insufficiency of
    the reasons, rather than a failure to apply
W.(D.)
, that is the
    essential error in this case.

[30]

The trial judge also made a number of errors of fact based on the
    evidence, both in his reasons for judgment and in the reasons for sentence. In
R.
    v. Lohrer
, [2004] 3 S.C.R. 732, a decision of Binnie J., the Supreme Court
    of Canada endorsed Doherty J.A.s reasoning in
R. v. Morrissey
(1995)
,
22 OR (3d) 514 (C.A.),
on the issue of
    misapprehension of fact. In
Morrissey,
at p. 221, Doherty J.A., stated
    that:

[i]f an appellant can demonstrate that the
    conviction depends on a misapprehension of the evidence thenit must follow
    that the appellant has not received a fair trial, and was the victim of a
    miscarriage of justice.  This is so even if the evidence, as actually
    adduced at trial, was capable of supporting a conviction.

[31]

The first factual error was the trial judges finding, in both sets of
    reasons, that the expert witness identified in the computer approximately 8000
pornography
files. In fact, he identified 8312
movie
files. Of those, between 137
    and 149 were identified as child pornography (with 634 being identified as
    adult pornography, 551 as animal sex and 6978 as other).

[32]

Nor was the identification of non-child pornography relevant to the
    criminal conduct charged, as viewing or downloading adult pornography is not an
    offence. In that regard, the trial judge also referred to testimony by the
    expert witness that the LimeWire program was frequently used to download movies
    that had titles suggestive of pornography and that some 1500 such titles
    were found. He further noted Mrs. Ezards testimony that she secretly
    observed her husband from time to time looking at pornography on his computer.
[2]
It is unclear what relevance was placed by the trial judge on this evidence in
    his conclusion that it was the appellant who possessed the child pornography.

[33]

In
R. v. Morelli
, [2010] 1 S.C.R. 253, at para. 86, Fish J.
    suggested, in the context of considering the validity of a search warrant, that
    possessing a large quantity of legal adult pornography, could not be said to
    suggest any propensity to possess child pornography. In any event, propensity
    reasoning is improper except in clearly defined circumstances involving similar
    fact evidence.

[34]

The second factual error is in respect of what pornography Mrs.. Ezard
    claimed to have actually viewed.  Mrs. Ezard testified that she opened and
    viewed only one actual site from all the titles she found. She never described what
    she saw in her evidence, but Detective Carroll testified, as part of the
    narrative only, that Mrs. Ezard told him that she viewed an image where a young
    teenage girl was in a room being mounted and penetrated by a dog. In his
    reasons, however, the trial judge found that Mrs. Ezard viewed a movie which
    she said depicted or [sic] 17 year old teenagers involved in sexual activity,
    some kind of an orgy scene. In fact, this was one of the descriptive titles
    that Mrs. Ezard testified that she found on the computer, but she did not say
    that she viewed it. When the appellants trial counsel cross-examined Mrs.
    Ezard, he asked her specifically if she had seen this video, and she answered
    [n]o and said [t]hat was the title. Mrs. Ezard further testified that she
    did not know what the movie actually depicted.

[35]

The third factual error involved the contents of Mrs. Ezards notebook.  Much
    reference was made to the notebook that Mrs. Ezard made and turned over to the
    police. She was allowed to use the notebook for reference in giving her
    testimony, but it was not made an exhibit. Yet the trial judge found that the
    list compiled by Mrs. Ezard reflects a lot of the same titles that were
    ultimately found on the computer by Detective Coakley. It appears that the
    trial judge either misapprehended the evidence, or reviewed the notebook and
    made improper use of it in arriving at his decision, as if it had been made
    evidence in the case.

CONCLUSION

[36]

This court is required to take a functional approach to the trial
    judges reasons for decision in order to

determine whether they respond
    to

the live issues in the case, having regard to the record as a whole.
    Although

a

trial judge is not required to address all of the
    evidence and arguments, the judge must determine the live issues in a manner
    that explains to the accused why the judge was not left with a reasonable
    doubt.

[37]

In this case, the live issue was who was responsible for the child
    pornography found on the appellants computer. There was not

only

conflicting
    testimony as between the appellant and his wife, but Mrs. Ezards evidence
    contained significant internal inconsistencies as well as inconsistencies with
    the evidence of the expert forensic witness. Furthermore, the trial judge made
    a number of factual errors based on apparent misapprehensions of the evidence.

[38]

In my view, one cannot say in those circumstances that the reasons
    provide an adequate basis for appropriate appellate review, nor that the
    verdict, on a very serious charge, is a safe one. I would allow the appeal
,
set

aside the conviction and order a new trial.

RELEASED:

AUG -5 2011

KF                                                   K.
    Feldman J.A.

I
    agree D. OConnor A.C.J.O.

I
    agree H.S. LaForme J.A.

[1]
Detective Jeffrey Carroll, who was the officer that arrested Mr. Ezard,
    testified that there were no charges laid in connection with the prescription
    drugs that had been found.

[2]
This testimony was led by the Crown as part of its case for possession of child
    pornography, but Mrs. Ezard never clarified exactly what it was she observed
    her husband watching on his computer.