COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dickson, 2016 ONCA 665

DATE: 20160908

DOCKET: M46815 (C58692)

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party (Respondent)

and

Brian Dickson

Applicant (Appellant)

Eva Tache-Green, for the applicant

Grace Choi, for the responding party

Heard: August 23, 2016

ENDORSEMENT

[1]

Brian Dickson brings this application under s. 684 of the
Criminal
    Code
seeking an order requiring the Attorney General of Canada to pay for
  a lawyer to represent him in his appeal to this court from a conviction of
  first degree murder.  The Attorney General resists the application.

[2]

On April 15, 2011, Quan Liu was chatting via webcam with a friend in
Beijing. Mr. Dickson knocked on her door and forced his way into her room. The
friend on the webcam heard several bangs and heavy breathing. He then saw Mr.
Dickson - naked from the waist down  turn off the webcam feed. Ms. Liu was
found dead the next morning. Her laptop had been taken. Mr. Dicksons semen was
found on her thigh and abdomen. His DNA was found under her fingernails.

[3]

The Crowns theory was that Mr. Dickson came to Ms. Lius room to
sexually assault her and did so. The case for first degree murder rested on a
finding that Mr. Dickson killed Ms. Liu by choking her during or after the
sexual assault.

[4]

The defence agreed that Mr. Dickson assaulted Ms. Liu and accidentally
caused her death in the course of the assault and that therefore the appropriate
verdict was manslaughter.

[5]

Mr. Dickson was represented by privately-retained counsel at trial. The
trial lasted twelve days.

[6]

At the beginning of the pre-trial motions, Mr. Dickson was arraigned and
pleaded not guilty to first degree murder but guilty to manslaughter. The Crown
rejected the plea of guilty to manslaughter. Counsel for Mr. Dickson undertook
to enter the same plea before the jury and undertook that he would not tell the
jury that a verdict of not guilty was appropriate. Mr. Dickson did not admit
that he caused Ms. Lius death by way of the specific unlawful act of a sexual
assault and made no undertakings as to whether he would testify or call a
defence.

[7]

At trial, the Crown sought to adduce into evidence a formal statement
Mr. Dickson gave to the Toronto Police on April 19, 2011. The statement was
videotaped and audio recorded. It contained a false and innocent account of his
actions the night of Ms. Lius death.

[8]

The defence objected to the admission of the statement, taking the
position that once culpability for Ms. Lius death had been admitted, the
statement had no probative value, since the post-offence conduct of lying to
police was as consistent with manslaughter as it was with first degree murder. The
defence also argued that the prejudicial effect of the statement outweighed its
probative value. The Crown argued that since the plea and inherent admissions
had not been accepted, culpability was a live issue for the jury and Mr.
Dicksons statement was probative of a number of live issues relevant to
culpability, such as his general level of lucidity about the events of the
night in question, and, by extension, his level of intent.

[9]

The trial judge allowed the statement into evidence. On April 7, 2014,
Mr. Dickson was convicted of first degree murder arising out of Ms. Lius
death.

[10]

Mr. Dickson has appealed his conviction on the basis that the trial
judge erred by finding that the Crown properly refused to accept the factual
admissions underpinning Mr. Dicksons guilty plea. Alternatively, Mr. Dickson
appeals on the basis that the trial judge erred in admitting the statement as
its prejudicial effect exceeded its probative value.

[11]

Mr. Dickson applied for Legal Aid funding to retain counsel to act on
his behalf on the appeal. Legal Aid Ontario notified Mr. Dickson that his
request for funding had been refused. The Area Committee refused the request
because of its view that his appeal lacked merit. Mr. Dickson appealed this
decision. Legal Aid has affirmed the decision to deny funding on the basis of
lack of merit.

The Governing Legal Principles

[12]

Section 684(1) of the
Criminal Code

permits a single
judge or a panel of this court to assign counsel to act on behalf of an accused
who is a party to an appeal or to proceedings preliminary or incidental to an
appeal to this court. The judge or panel of judges must be satisfied that it
appears desirable in the interests of justice that an accused should have legal
assistance and it appears further that the accused has insufficient means to
obtain that assistance. These conditions are cumulative.

[13]

Section 684(2) controls where counsel is assigned and Legal Aid is not
granted. Where this occurs, the fees and disbursements of appointed counsel are
to be paid by the Attorney General who is a party to the appellate proceedings.

[14]

Several basic principles inform the exercise of discretion under s.
684(1).

[15]

First, the phrase the interests of justice signals the existence of a
judicial discretion that is to be exercised on a case-by-case basis:
R. v.
Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16. The phrase
the interests of justice must take cognizance of the broad access to
appellate review provided in s. 675, as well as the expansive remedial
authority of an intermediate appellate court under s. 686 of the
Criminal
Code
:
Bernardo
, at para. 20.

[16]

Second, the factors to be considered are closely related. Counsel should
be appointed where an accused cannot effectively present an appeal without a
lawyers help. Counsel should also be appointed where the court cannot properly
decide the appeal without the assistance of counsel. One or the other, on its
own, will justify the appointment:
Bernardo
, at para. 21.

[17]

Third, to determine whether counsel should be appointed, the first step
involves an inquiry into the merits of the appeal. As here, the merits
assessment is typically hampered by the incompleteness of the record. In the
result, the merits inquiry involves only the question of whether the appeal
raises arguable issues:
Bernardo
, at para. 22.

[18]

Finally, the applicant must show that counsel should be appointed under
s. 684(1) on a balance of probabilities.

The Arguments Advanced

[19]

Mr. Dickson argues that he is entitled to legal assistance and payment
of the costs associated with it, including payment for the transcripts of the
entire trial.

[20]

Mr. Dickson submits that he has insufficient means to retain counsel
privately. He adds that he is incapable of presenting his appeal, which
involves complex legal issues, without professional assistance.

[21]

Mr. Dickson further contends that his appeal from conviction has
significant merit. He says that the trial judge erred in permitting the Crown
to artificially keep an issue alive in order to introduce evidence that had
significant prejudicial effect and no probative value; namely, his statement to
the police.

[22]

The respondent resists the application primarily on the basis that the conviction
appeal has no merit. The respondent says Mr. Dicksons complaints about the
correctness of the trial judges pre-trial rulings are doomed to fail.

[23]

Moreover, says the Crown, Mr. Dickson, an intelligent man and relatively
sophisticated litigant himself, will have the assistance of experienced duty
counsel paid for by the state and aided by an adequate evidentiary record.

Analysis

[24]

Several reasons persuade me that this application must be dismissed.

[25]

First, it is conceded that Mr. Dickson does not have the means to retain
counsel.

[26]

However, even making generous allowance for grounds of appeal that are
capable of being expanded upon, I am not persuaded that there is an arguable
ground of appeal.

[27]

I do not see how it could be said that, in the circumstances of this
case, the trial judge erred by allowing the Crown to reject Mr. Dicksons
proposed plea of guilty to manslaughter and its inherent admissions. The
Crowns response to the proposed plea lies at the heart of prosecutorial
discretion.

[28]

I also do not see how it could be said that the trial judge committed
reversible error by exercising her discretion and allowing Mr. Dicksons
statement to police to go into evidence. This experienced trial judge provided
detailed reasons for her decision. In the light of the trial judges strong
caution in her instructions, the statement to the police, one that had some
relevance, could have little, if any, prejudicial effect.

[29]

The Crowns case against Mr. Dickson was very strong. As noted above,
among other things, it was supported by Mr. Dicksons admission that he caused
Ms. Lius death and by proof that his semen was found on her body and his blood
under her fingernails.

[30]

Moreover, the dismissal of his application does not mean that Mr. Dickson
will be deprived of legal assistance or required to make his submissions on the
basis of an inadequate evidentiary record. As a self-represented party, he is
entitled to the assistance of duty counsel, an experienced appellate lawyer
well qualified to assess the adequacy of any record compiled by the Attorney
General of Canada for the determination of the issues raised on appeal and to
make submissions on Mr. Dicksons behalf. This observation is particularly
compelling in this case given the narrow and discrete basis upon which Mr.
Dickson in challenging his conviction.

[31]

In addition, the record supports the conclusion that Mr. Dickson is a
capable and intelligent man. He has completed three quarters of the credits he
needs to graduate with an undergraduate degree from York University where he
was actively involved in activities such as Model UN, NATO and where he served
as vice-president of External Affairs for the undergraduate political science
student council and fundraising.

Conclusion

[32]

For these reasons, Mr. Dickson has not demonstrated, on balance, that it
is desirable in the interests of justice to allow this application. Mr. Dicksons
application is therefore dismissed.

Gloria Epstein
J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Dupe, 2016 ONCA 653

DATE: 20160902

DOCKET: C54443

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Dupe

Appellant

Philip Campbell, for the appellant

Roger A. Pinnock, for the respondent

Heard:  June 21, 2016

On appeal from the conviction entered by Justice Michael
    R. Dambrot of the Superior Court of Justice, sitting with a jury, on May 13,
    2011.

Doherty J.A.:

I

OVERVIEW

[1]

The appellant and Denna Smith lived next to each other in a rooming
    house in downtown Toronto.  Both regularly used crack cocaine, often together.
    On June 29, 2007, the appellant stabbed Ms. Smith several times.  Two of the
    wounds pierced her heart and proved fatal.  The appellant, still armed with the
    knife, rushed toward Myles Groulx, a friend of Ms. Smith, and chased him down
    the hall towards Ms. Smiths room.  Mr. Groulx managed to get through the door
    and barricaded himself inside the room.  The appellant entered the room, but
    left without harming Mr. Groulx.  The police arrived shortly afterward.  They found
    the appellant on the roof with the knife.  He told the police, I lost it and stabbed
    her  I hope she will be okay.

[2]

The appellant was charged with the first degree murder of Ms. Smith and
    the attempted murder of Mr. Groulx.  At the outset of the trial, the appellant
    entered a guilty plea to the included offence of manslaughter.  The Crown refused
    to accept the plea and the trial proceeded.

[3]

The jury acquitted the appellant on the charge of first degree murder,
    but convicted him on the included offence of second degree murder.  The jury
    acquitted the appellant on the attempted murder charge.  The trial judge
    imposed a sentence of life imprisonment without eligibility for parole for 14
    years.

[4]

The appellant appeals his conviction only.  The Crown does not appeal
    the acquittals on the first degree murder charge and the attempted murder
    charge.

[5]

There are three grounds of appeal:
[1]

·

Did the trial judge err in admitting hearsay evidence in support
    of the Crowns contention that Ms. Smiths death was motivated by the
    appellants anger and jealousy?

·

Did the trial judge err in limiting the scope of the surrebuttal
    evidence called by the defence in answer to the Crowns reply evidence?

·

Did the trial judge err in failing to leave the defence of
    provocation with the jury?

[6]

I would allow the appeal on the first ground.  I would hold that the
    Crown did not demonstrate that some of the hearsay evidence relied on by the
    Crown was sufficiently reliable to justify its admission under the principled
    exception to the rule against the admissibility of hearsay evidence.  The
    improperly admitted hearsay evidence was an important feature of the Crowns
    case as it related to the appellants alleged animus toward Ms. Smith.  That
    animus was, in turn, central to the Crowns case on the issue of intent.  It
    cannot be said that the verdict would necessarily have been the same had the
    evidence been excluded.  The appellant is entitled to a new trial on the charge
    of second degree murder.

II

The Positions at Trial

[7]

The appellant testified at trial and admitted that he stabbed and killed
    Ms. Smith, although he professed to have no recollection of doing so.  The defence
    argued that the Crown had failed to prove that the appellant had the intent
    required for murder under s. 229 of the
Criminal Code
, R.S.C., 1985,
    c. C-46, or alternatively that if the Crown had proved murder, the Crown had
    not proved that the murder was planned and deliberate.  The defence also argued
    that the trial judge should put the defence of provocation to the jury.  He
    declined to do so.

[8]

The Crowns case in support of the murder allegation included the
    following:

·

evidence of Mr. Groulx, who testified that he saw the appellant
    stab Ms. Smith;

·

evidence of the interactions of the appellant with Ms. Smith and
    Mr. Groulx on the day of and shortly before the homicide;

·

evidence that the appellant and Ms. Smith often argued primarily
    because the appellant believed that Ms. Smith would use the appellants money
    to purchase cocaine and not give the appellant his share of the cocaine;

·

evidence that the appellant had a sexual/romantic interest in Ms.
    Smith, but that she wanted no part of that kind of relationship with the
    appellant; and

·

evidence that the appellant became jealous when Ms. Smith partied
    with other men and that he was angry and jealous when Ms. Smith was partying
    with Mr. Groulx on the day she died.

[9]

The defence relied on the following:

·

evidence that the appellant consumed a great deal of alcohol and
    cocaine on the day of the homicide;

·

the appellants history of mental disorder, drug addiction and
    alcoholism;

·

evidence that the appellant was not taking his prescribed
    medication;

·

evidence that the appellant suffered from a sleep disorder;

·

evidence that the appellant was aroused suddenly from a deep
    sleep immediately before he attacked Ms. Smith; and

·

the psychiatric evidence of Dr. Julian Gojer.

[10]

The
    Crown also led evidence in reply from Dr. Lisa Ramshaw to refute the opinion
    that had been advanced for the defence by Dr. Gojer.

III

The Relationship between the
    Appellant and Ms. Smith

[11]

The
    Crown argued that on the evening of Ms. Smiths death, the appellant was angry
    with her and jealous because she had rejected him in favour of Mr. Groulx.  On
    the Crowns theory, the appellants anger grew during the evening and finally,
    around midnight, he attacked and murdered Ms. Smith in the hallway between
    their rooms.  He then chased Mr. Groulx, attempting to kill him as well.  The
    Crown sought to lead evidence of the nature of the relationship between the
    appellant and Ms. Smith to support its theory of the case.  Although the
    defence did not challenge the admissibility of much of that evidence, it did
    maintain that some of the evidence proffered by the Crown was inadmissible
    hearsay.  Before turning to the contested hearsay evidence, I will briefly
    review the other evidence relevant to the Crowns theory that the appellants
    anger and jealousy led him to murder Ms. Smith.

[12]

The
    appellant and Ms. Smith lived in the same rooming house for about two years.
    They were both crack cocaine addicts.  They often drank and smoked cocaine
    together.  The appellant considered Ms. Smith a friend.  They helped and
    supported each other.

[13]

Several
    witnesses testified that although the appellant and Ms. Smith were friendly and
    spent time together, they often argued, sometimes very loudly.  The arguments
    followed a typical pattern.  The appellant would show up at Ms. Smiths door
    angry because he believed Ms. Smith had cheated him.  He had given her money to
    purchase cocaine for the two of them, but she had either not given him his fair
    share of the cocaine, or had not given him any of the cocaine, but instead had
    shared it with others.  The arguments would get very loud with Ms. Smith
    insisting that the appellant could not come into her room and the appellant
    crying and banging on Ms. Smiths door.  The same pattern would recur the next month
    when the appellant received his monthly disability cheque and had money to buy
    cocaine.

[14]

The
    landlord of the rooming house the appellant and Ms. Smith lived in testified
    that Ms. Smith complained about the appellant constantly yelling at her door
    and kicking it.  The landlord spoke to the appellant, who promised that he
    would stop bothering Ms. Smith.  Inevitably, however, the appellant would end
    up back at Ms. Smiths door arguing loudly with her.

[15]

In
    his evidence, the appellant agreed that he would give money to Ms. Smith to
    purchase cocaine and sometimes end up receiving less cocaine than he should
    have from Ms. Smith.  He would complain to Ms. Smith and they would argue,
    usually at her door.  Nonetheless, the appellant testified that he continued to
    give Ms. Smith money for cocaine.  He also testified that he sometimes ended up
    crying at her door.  According to the appellant, he was crying because he was drunk
    and when he was drunk he sometimes became sad.

[16]

Donna
    Farmer lived with Ms. Smith for a time.  She described the appellant and Ms.
    Smith as friends who saw each other almost every day.  She said they often
    argued.  Ms. Farmer believed that the appellant had a sexual or romantic
    interest in Ms. Smith.  Ms. Smith made it clear to Ms. Farmer that she had no
    such interest in the appellant.  Ms. Smith told Ms. Farmer that the appellant
    was always bothering her and that he wanted to get laid.  Ms. Smith also
    described the appellant as harmless.

[17]

The
    appellant testified that at one time he had a sexual interest in Ms. Smith.  He
    insisted, however, that when she told him she was not interested in having sex
    with him, he no longer had a sexual interest in Ms. Smith but remained her
    friend.

[18]

The
    appellant sometimes complained to the landlord about Ms. Smith having men in
    her room.  He testified that he complained not out of any sense of jealousy,
    but because of the noise.  Other residents in the rooming house also complained
    for the same reason.

[19]

The
    appellant testified that on one occasion, he learned that Ms. Smith and
    Elsworth Pointer, another resident in the rooming house, had sex in the
    appellants room without his permission.  The appellant became very angry when
    he found them.  He grabbed each by the shirt.  He testified that he became
    angry with Mr. Pointer and Ms. Smith because they were sneaking around on him
    and using his room without his permission.  He was not angry because Ms. Smith
    was having sex with Mr. Pointer.  The appellant testified that Ms. Smith had
    sex with many men.

[20]

Mr.
    Groulx met Ms. Smith two or three weeks before her death.  They were partying
    and smoking cocaine together on June 28 and June 29.  Mr. Groulx first met the
    appellant outside of the rooming house on June 29.  He saw the appellant on
    three occasions during the evening of the 29
th
, once in the
    appellants apartment, and twice in Ms. Smiths apartment.

[21]

On
    one of the appellants visits to Ms. Smiths apartment, he asked Mr. Groulx who
    he was and why he was in the apartment.  Mr. Groulx told him that he was a
    friend of Ms. Smith and that they were partying.  Ms. Smith became angry and
    told the appellant it was none of his business why Mr. Groulx was in the
    apartment.  Ms. Smith gave the appellant a piece of cocaine, but would not allow
    him to smoke the cocaine in her apartment with her and Mr. Groulx.  The
    appellant left.  He was upset.

[22]

Mr.
    Groulx testified that the appellant returned to Ms. Smiths apartment about
    one-half an hour before her death.  Ms. Smith would not let the appellant into
    her room.  He could see Mr. Groulx standing in Ms. Smiths room.  The appellant
    left.  He was angry.

[23]

The
    appellant also described encounters with Ms. Smith and Mr. Groulx on the
    evening of her death.  He testified that he was angry with Mr. Groulx because
    Mr. Groulx took something from his apartment.  He also agreed that he was very
    upset later in the evening, but claimed that it was because of his cocaine
    consumption and mental state and not because he was angry or jealous that Ms.
    Smith was partying with Mr. Groulx and wanted no part of the appellant.

[24]

Mr.
    Groulx testified that about one-half an hour after the appellants last visit
    to Ms. Smiths room, she left to feed another residents cat.  About 15 seconds
    later, Mr. Groulx heard a scream.  He ran to the door and looked out.  Ms.
    Smith was lying on the floor in the hall and the appellant was standing almost
    on top of her holding a knife.  Mr. Groulx could see a great deal of blood.  He
    screamed at the appellant.  The appellant looked at Mr. Groulx, smirked, said
    nothing and plunged the knife into Ms. Smiths chest.

[25]

The
    appellant testified that sometime after he went to bed, he awoke to see a
    shadow passing back and forth in the hall in front of his door.  The appellant
    was nervous and agitated.  He thought someone was trying to get into his room
    to rob him.  He got up and armed himself with a knife.  He opened the door.  He
    saw a lady in a long black gown with dark hair and he saw Mr. Groulx with a
    board in his hand.  He chased Mr. Groulx into Ms. Smiths apartment.  The
    appellant was standing over Mr. Groulx with a knife when he suddenly thought
    what the fuck am I doing?  He turned and walked out of the apartment.  As the
    appellant left Ms. Smiths apartment, he saw a great deal of blood in the
    hallway.  He did not recall stabbing Ms. Smith.

IV

The Challenged Hearsay Evidence

[26]

At
    trial, the Crown sought a ruling on the admissibility of various hearsay
    statements, most of which consisted of utterances made by Ms. Smith to various
    people.  The trial judge was asked to rule on the statements based on the
    transcript of the evidence from the preliminary inquiry, Mr. Groulxs statement
    to the police and the evidence of Detective Sergeant Browne.  The trial judge
    admitted the evidence.  On appeal, the appellant challenges the trial judges
    ruling as it pertains to statements allegedly made by Ms. Smith to Mr. Groulx
    on the day of her death and statements made by Mr. Pointer to the police a few
    days after Ms. Smiths death.

(i)

Ms. Smiths statements to Mr. Groulx

[27]

Mr.
    Groulx testified that he and Ms. Smith were partying in her room on June 28.
    The party continued the next day.  Sometime in the afternoon of June 29, they
    went outside and happened to meet the appellant.  Mr. Groulx did not know the
    appellant, but it was clear to him that the appellant and Ms. Smith knew each
    other.

[28]

Ms.
    Smith did not introduce Mr. Groulx to the appellant.  Mr. Groulx and Ms. Smith returned
    to her building.  As they were walking up the steps to her room, Ms. Smith began
    to talk about her relationship with the appellant.  Ms. Smith told Mr. Groulx
    that the appellant had asked her out on a couple of occasions, but she was not
    interested.  He then stalked her and  had beaten her.  Mr. Groulx asked why
    she talked to the appellant and Ms. Smith indicated she did not have much
    choice as she lived down the hall from him and had to live there as it was hard
    to find a place that she could afford.  Ms. Smith seemed upset when she was
    talking about the appellant.

[29]

On
    the
voir dire
, the Crown also led evidence of a statement made by Mr.
    Groulx to the police in which he reported that Ms. Smith had told him that the
    appellant had never made any advances towards her, but that he was just
    obsessed with her, like nuts.

(ii)

Mr. Pointers statement to the police

[30]

Detective
    Sergeant Browne interviewed Mr. Pointer on July 2, 2007 as part of the
    investigation into Ms. Smiths death.  Mr. Pointer told him that he lived in
    the building and that he had known the appellant and Ms. Smith for about three
    years.  Mr. Pointer described the appellant as being possessive with [Ms.
    Smith] and jealous if [Ms. Smith] spoke to other men.  Detective Sergeant Browne
    also testified that Mr. Pointer recalled a specific conversation with Ms. Smith
    about a week before her death.  She told Mr. Pointer that the appellant, who
    was angry, had come into her room and thrown her VCR at the wall.

[31]

Detective
    Sergeant Browne acknowledged on cross-examination that Mr. Pointers belief
    that Mr. Dupe was possessive could have come from anywhere.  Detective
    Sergeant Browne suspected that Mr. Pointer got that information from Ms. Smith
    but he did not know.

[32]

Mr.
    Pointer died before the trial.

(iii)

The
    trial judges ruling (
R. v. Dupe
, 2010 ONSC 6423)

[33]

The trial judge characterized both Ms. Smiths statement to Mr. Groulx
    and Mr. Pointers statement to the police as hearsay.  He considered their
    admissibility under the necessity/reliability criteria governing admissibility
    under the principled exception to the rule excluding hearsay evidence.

[34]

The
    necessity criterion was clearly met.  Ms. Smith and Mr. Pointer were deceased
    at the time of trial.

[35]

The
    trial judge concluded that Ms. Smiths statement to Mr. Groulx met the
    threshold reliability requirement.  He held, at para. 47:

In my view, Ms. Smiths statements were made spontaneously and
    without prompting to a person she was apparently attracted to and with whom she
    was prepared to spend time and share drugs, without any motive to lie.  In my
    view, it was perfectly natural for her to have truthfully shared her problems
    with Mr. Groulx.  The possibility that the reliability of her statements was
    affected by her ingestion of drugs is more than offset by the consistency of
    her statements with other evidence, some of which is not summarized in this
    ruling.  While not everything that Mr. Groulx said is confirmed by other
    extrinsic evidence, it must be remembered that the essential core of the
    statement is that the relationship between the accused and the deceased was
    acrimonious.  Such evidence has been held to be highly relevant because it may
    afford evidence of the accuseds
animus
or intention to act against the
    victim. [Citation omitted.]

[36]

The
    trial judge ruled that Mr. Pointers statement to Detective Sergeant Browne was
    also admissible hearsay.  The trial judge recognized that Mr. Pointers
    statement describing the appellant as possessive and jealous had evidentiary value
    only insofar as it was the product of Mr. Pointers firsthand observations of
    that relationship.  The trial judge addressed that issue, at para. 53:

But Detective Browne believed that Mr. Pointer was speaking from
    personal knowledge, and it would be open to the jury to reach the same
    conclusion having regard to the fact that Mr. Pointer did not say otherwise,
    and had been Mr. Dupes neighbour for several years in a seven unit apartment
    building where everyone helped each other out and knew each others business.
    I am of the view that Mr. Pointers reliability is sufficient to be
    admissible.

[37]

The
    trial judge then considered Mr. Pointers statement that Ms. Smith told him the
    appellant threw her VCR at the wall in anger. In holding that Mr. Pointers
    statement was sufficiently reliable to warrant its admissibility, the trial
    judge concluded, at para. 54, that:

It was a statement made to a long-standing neighbour in
    circumstances where she had no motive to lie and which is consistent with other
    extrinsic evidence.

[38]

The
    trial judge completed his analysis of the hearsay evidence by weighing the probative
    value of that evidence against its prejudicial effect.  He determined that the
    evidence logically and properly supported an inference of an existence of
    animus or motive for the appellant to do harm to Ms. Smith and that it did not
    carry any significant risk of moral or reasoning prejudice.

(iv)

Ms. Smiths statement to Mr. Groulx should not have been admitted

[39]

Before explaining why Ms. Smiths alleged statement to Mr. Groulx was
    inadmissible, I will address one preliminary evidentiary issue.  The hearsay
    evidence adduced before the jury differed in one material respect from the
    evidence considered by the trial judge on the
voir dire
.  On the
voir
    dire
, the Crown relied on a statement made by Mr. Groulx to the police in
    which he indicated that Ms. Smith told him that the appellant was obsessed with
    her.  At trial, Mr. Groulx testified that Ms. Smith made that statement to
    him.

[40]

On
    the
voir dire
record, the maker of the out-of-court statement that the
    appellant was obsessed with Ms. Smith was Mr. Groulx and not Ms. Smith.  I have
    serious doubts about the admissibility under the principled exception to the
    hearsay rule of Mr. Groulxs statement to the police as evidence of the truth
    of what Ms. Smith is alleged to have said to Mr. Groulx.  Those concerns do not
    apply to Mr. Groulxs trial evidence and specifically his testimony that Ms.
    Smith told him that the appellant was obsessed with her.  I will address the
    admissibility of Ms. Smiths alleged statements on the basis of Mr. Groulxs
    trial evidence.

[41]

Ms.
    Smiths alleged statement to Mr. Groulx was an out-of-court statement offered
    by the Crown to prove the truth of its contents.  The Crown argued that the
    evidence was admissible to show that the appellant had previously assaulted Ms.
    Smith, stalked Ms. Smith and was obsessed with Ms. Smith.  The statement was
    hearsay: see
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras.
    35-36.

[42]

Ms.
    Smiths statement, if admissible for its truth, was clearly relevant to the
    case for the Crown.  The Crown argued that if the jury accepted the contents of
    Ms. Smiths statement to Mr. Groulx as true, that evidence in combination with
    other evidence described an acrimonious and violent relationship between Ms.
    Smith and the appellant.  On the Crowns theory, the existence of that kind of
    relationship afforded evidence of the appellants animus toward Ms. Smith on
    the day he killed her.  That animus, in turn, constituted evidence that the
    appellant had the intention required for murder under s. 229 at the time he
    killed Ms. Smith: see
R. v. Griffin
, 2009 SCC 28, [2009] 2 S.C.R. 42,
    at para. 63.

[43]

There
    is no suggestion that Ms. Smiths statement to Mr. Groulx falls within any of
    the traditional exceptions to the rule against hearsay evidence.  Her statement
    is presumptively inadmissible.  The onus falls on the Crown to establish admissibility
    under the necessity/reliability criteria of the principled exception to the
    rule against hearsay: see
Khelawon
,

at paras. 42, 59.  Only
    reliability is in issue here.

[44]

Hearsay
    evidence is presumptively inadmissible primarily because, absent contemporaneous
    cross-examination of the declarant, the party against whom the evidence is
    offered cannot effectively test the reliability and veracity of the
    out-of-court statement.  Hearsay evidence is excluded both to protect the
    integrity of the truth seeking function of the trial and to preserve the
    fairness of the trial: see
Khelawon
, at paras. 48, 63; and
R. v.
    Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 77.

[45]

The
    principled exception to the rule excluding hearsay evidence recognizes that
    some hearsay is sufficiently reliable to warrant its admissibility and
    consideration by the trier of fact even though the declarant of the statement
    was not subject to cross-examination when the statement was made.  The case law
    identifies two lines of inquiry relevant to the assessment of the reliability
    of hearsay evidence.  The first line of inquiry asks whether there are
    sufficient other means available to test the reliability of the hearsay
    statement so as to render unnecessary the requirement of contemporaneous
    cross-examination of the declarant.  For example, the availability of the
    declarant for meaningful cross-examination at trial can go a long way to
    providing an adequate substitute for contemporaneous cross-examination of the
    declarant:
Khelawon
, at paras. 63, 76; and
R. v. Devine
, 2008
    SCC 36, [2008] 2 S.C.R. 283, at paras. 22-28.

[46]

The
    second line of inquiry looks to determine whether the circumstances in which
    the hearsay statement was made provide sufficient comfort of its truth to
    justify its consideration by the trier of fact despite the absence of
    contemporaneous cross-examination of the declarant.  Records made in the usual
    and ordinary course of business provide a good example of inherently
    trustworthy hearsay declarations.  In determining whether hearsay is
    sufficiently inherently trustworthy to warrant its admission, the court may
    consider not only the circumstances surrounding the making of the statement but
    other evidence properly before the trier of fact supporting or undermining the accuracy
    of the out-of-court statement: see
Khelawon
, at paras. 4, 56-63;
R.
    v. Blackman
2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35;
Couture
,
    at para. 80;
Devine
, at para. 22; and
R. v. S.S.
, 2008 ONCA
    140, (2008) 232 C.C.C. (3d) 158, at paras. 24-25.

[47]

The
    two lines of inquiry described above are not mutually exclusive, but are considered
    together in assessing the reliability of hearsay evidence for the purposes of
    determining its admissibility: see
Blackman
, at para. 35.  There is,
    however, one important distinction between the two inquiries.  If the hearsay
    evidence is said to be reliable because there are other suitable substitutes
    for contemporaneous cross-examination, the truth of the contents of the hearsay
    statement is irrelevant to the reliability inquiry: see
Couture
, at
    para. 87.  If, however, the evidence is said to be sufficiently reliable
    because of the circumstances in which it was made or the other evidence before
    the trier of fact, the reliability assessment requires a consideration of the
    truth of the hearsay statement.  The court will admit the hearsay statement
    only if satisfied that the circumstances provide sufficient confidence of the
    truth of the statement to justify admitting the statement even though it will
    go largely, if not entirely, untested.  As explained in
Couture
, at
    para. 99:

Because there are no adequate substitutes for testing the
    evidence on the facts of this case, there must be some compelling feature about
    the statement that commands sufficient trust in its truth and accuracy to
    warrant its admission regardless.

[48]

In
    this case, there were no alternative means available to test the reliability of
    the contents of Ms. Smiths alleged statement to Mr. Groulx.  She has never
    been and can never be cross-examined on the statement.  Ms. Smith was not under
    oath or any equivalent when she made the statement and there was no record of any
    kind made of her statement.

[49]

What
    were the compelling features of Ms. Smiths statement that allowed the court
    to place sufficient trust in its truth to admit the statement despite the
    inability to test its reliability and veracity?  The trial judge referred to
    two: the absence of any motive on Ms. Smiths part to lie to Mr. Groulx about
    her relationship with the appellant and extrinsic evidence tending to confirm
    her description of the nature of her relationship with the appellant.

[50]

I
    appreciate that the trial judges ruling on the admissibility of hearsay
    evidence is owed deference by this court: see
Blackman
, at para. 36.   However,
    deference ends if the trial judge materially misapprehends evidence that is
    central to his ultimate assessment of the reliability of the hearsay
    statement.  With respect, the trial judge fell into that error.

[51]

The
    trial judges finding that Ms. Smith had no motive to lie to Mr. Groulx about
    the nature of her relationship with the appellant was based on the trial
    judges finding that Ms. Smiths statement to Mr. Groulx was spontaneous and
    the trial judges description of the relationship between Ms. Smith and Mr.
    Groulx as one which would engender candour and honesty between the two.
    Neither feature of the evidence can support an inference of an absence of any
    motive to lie.

[52]

Ms.
    Smiths statement was spontaneous in the sense that she volunteered the
    information about her relationship with the appellant and Mr. Groulx.
    Spontaneity will in some circumstances provide a badge of reliability: see e.g.
R. v. Khan
, [1990] 2 S.C.R. 531.  In my view, however, the sparse
    evidence adduced in this case permits no inference supporting reliability from
    the mere fact that it was Ms. Smith who raised the topic of her relationship
    with the appellant.  I can see no connection between the fact that Ms. Smith
    initiated the discussion about her relationship with the appellant and the
    reliability of what she said about that relationship.

[53]

Similarly,
    I see no connection between the nature of Ms. Smiths relationship with Mr.
    Groulx and the presence or absence of any motive she may have had to
    misrepresent the nature of her relationship with the appellant when speaking to
    Mr. Groulx.  Ms. Smith and Mr. Groulx had known each other for a couple of
    weeks.  They had a casual relationship that revolved around the consumption of
    crack cocaine.  Nothing in the nature of that relationship suggested any
    likelihood that Ms. Smith would be candid with Mr. Groulx about anything.  A
    person in Ms. Smiths position might well lie to her new boyfriend to make it
    appear as though she had other men who were very interested in her.  Equally, a
    person in Ms. Smiths position might take advantage of her new friendship to
    honestly unburden herself about a difficult ongoing relationship she had with
    another man.  There is nothing in the relationship which makes one more likely
    than the other.

[54]

Rosenberg
    J.A. described the relevance of motive to fabricate to the reliability of
    hearsay evidence in
R. v. Czibulka
(2004), 189 C.C.C. (3d) 199, at
    para. 43 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] 1 S.C.R. xiv:

It seems to me the record will disclose some variation on three
    scenarios where the Crown seeks to tender a hearsay statement under the
Khan/Smith
model of the principled approach.  First, the Crown may be able to show that
    the declarant had no known motive to fabricate the hearsay story to this
    witness about this accusedConversely, the circumstances may be such that
    either because of direct evidence or logical inference it is apparent that the
    declarant did have a motive to fabricate this story
Or,
    the case may be one where there is simply no evidence and no logical inference
    that the declarant had no motive to lie.  In the last scenario, motive is in
    effect a neutral consideration
.  [Italics in original; underlining added.]

[55]

I
    would place this evidence in the third scenario described by my late colleague.
    The evidence permits neither an inference of motive to lie nor an inference of
    no motive to lie and, as such, cannot assist the Crown in demonstrating the
    reliability of Ms. Smiths statement.

[56]

The
    trial judge also materially misapprehended the evidence when he described Ms.
    Smiths description of her relationship with the appellant as consistent with
    the other evidence describing that relationship.  The other evidence did not
    give one description of the relationship but rather gave different
    descriptions.  That evidence described a relationship that was turbulent, both
    friendly and acrimonious at times, but not physically violent.
[2]
Ms. Smiths alleged statement to Mr. Groulx, if accepted for its truth,
    supported the inference that the appellant had previously assaulted and stalked
    Ms. Smith.  Without cross-examination, the jury could be left to speculate
    about the nature and number of prior assaults and stalking incidents.  If Ms.
    Smiths statement was accepted as true, the jury could infer a significantly
    higher level of violence in the relationship between Ms. Smith and the
    appellant than suggested by the other evidence.  If the jury took that view of
    Ms. Smiths statement, it fueled the Crowns theory that the appellants animus
    explained the killing.

[57]

The
    other evidence available to the jury describing the relationship between Ms.
    Smith and the appellant did not make Ms. Smiths statement to Mr. Groulx more
    reliable, but rather revealed the inherent ambiguities in that statement.  Ambiguities
    connote unreliability absent an opportunity to cross-examine: see e.g.
R.
    v. Baldree
, 2013 SCC 25, [2013] 2 S.C.R. 520, at paras. 31-32.  To take
    one example, Ms. Smith told Mr. Groulx that she was stalked by the
    appellant.  Her statement is devoid of any detail or context that would provide
    any insight into her meaning.  When she spoke of being stalked, was she referring
    to the appellants repeated appearances at her door to complain about being cheated
    by Ms. Smith, or was she referring to some more menacing conduct that would
    typically be associated with stalking?  The difference between those two
    scenarios could be very important when assessing the Crowns claim that the
    appellants animus toward Ms. Smith precipitated the killing.  Without
    cross-examination, there could be no way of knowing what Ms. Smith meant when
    she said that the appellant stalked her.  These and other ambiguities speak
    against the admissibility of Ms. Smiths statement to Mr. Groulx.  The statement
    should have been excluded.

[58]

The
    curative proviso cannot be applied to the improper admission of Ms. Smiths
    statement to Mr. Groulx.  The appellants state of mind was the only live issue
    at trial.  The alleged animus between Ms. Smith and the appellant on the day
    she was killed was central to the Crowns case that the appellant had the
    intent required by s. 229 of the
Criminal Code
.  Ms. Smiths
    statements that the appellant had assaulted and stalked her, if accepted as
    true by the jury, provided potentially strong evidence to support the Crowns
    case on intent.  No doubt, there was other cogent evidence of intent, including
    certain statements made to the police by the appellant.  However, it cannot be
    said that the jurys verdict would necessarily have been the same had they not
    been told that they could accept Ms. Smiths statement to Mr. Groulx that the
    appellant had assaulted and stalked her as true.

(v)

Mr. Pointers statement to the police should not have been admitted

[59]

My
    conclusion that the statement by Ms. Smith to Mr. Groulx should have been
    excluded and that its improper admission may have affected the result is enough
    to require the ordering of a new trial.  I will, however, address the
    admissibility of Mr. Pointers statement to the police.  As outlined above,
    there were two components to that statement.  Mr. Pointer offered his opinion
    as to the nature of the relationship between the appellant and Ms. Smith, and
    Mr. Pointer told Detective Sergeant Browne that Ms. Smith had told him about an
    incident in which the appellant threw her VCR at the wall.

[60]

Mr.
    Pointers evidence that the appellant was possessive of Ms. Smith and jealous
    of her activities with other men amounted to an opinion as to the nature of the
    relationship between Ms. Smith and the appellant.  Had Mr. Pointer been
    available to testify, he could have offered his opinion of the nature of the
    relationship only if that opinion was based on personal knowledge of the facts underpinning
    it: see
R. v. Graat
, [1982] 2 S.C.R. 819, at pp. 836-37.  That opinion,
    when offered by way of an out-of-court statement allegedly made by Mr. Pointer,
    must meet the same precondition to admissibility: see
Couture
, at
    para. 75.

[61]

There
    was no evidence on the
voir dire
of the basis for Mr. Pointers
    opinion about the nature of the relationship between Ms. Smith and the
    appellant.  Detective Sergeant Brownes assumption about the basis for that
    opinion was not evidence.  Absent that evidence, Mr. Pointers opinion about
    the nature of the relationship between the appellant and Ms. Smith was
    inadmissible apart entirely from its hearsay character.  To put the same point
    somewhat differently, regardless of whether the evidence was hearsay, it had no
    probative value absent evidence of the basis upon which Mr. Pointers opinion
    about the relationship was formed.  The mere fact that Mr. Pointer and Ms.
    Smith were friendly neighbours did not permit the inference that what Mr.
    Pointer said about the relationship between the appellant and Ms. Smith was
    based on his personal observations as opposed to what others may have told him.

[62]

The
    second part of Mr. Pointers statement to the police did involve a statement
    allegedly made to him by Ms. Smith.  Its admissibility hinges on the same
    reliability inquiry outlined in my analysis of the admissibility of Ms. Smiths
    statement to Mr. Groulx.

[63]

There
    is little, if anything, to commend the inherent reliability of Ms. Smiths
    statement to Mr. Pointer.  Neither the declarant (Ms. Smith), nor the person to
    whom the statement was made (Mr. Pointer) are available for cross-examination.
    While it may be arguable that the fact that Mr. Pointer made the statement to
    the police in the course of an investigation of the death of his friend lends
    some reliability to Mr. Pointers assertion that Ms. Smith told him about the
    VCR incident, it does nothing to address the more important question of the
    reliability of what Ms. Smith said to Mr. Pointer.

[64]

The
    trial judge found that Ms. Smiths statement to Mr. Pointer was reliable
    because she had no motive to lie.  There was no basis for this finding.  As
    with Ms. Smiths statements to Mr. Groulx, the circumstances did not permit any
    inference as to the existence or non-existence of a motive to lie.  Their
    relationship  they had been neighbours for three years  could not reasonably
    justify the inference that Ms. Smith had no motive to lie to Mr. Pointer about
    the VCR incident.

[65]

Neither
    Mr. Pointers opinion about the nature of the relationship between the
    appellant and Ms. Smith, nor his evidence about Ms. Smiths statement
    concerning the VCR qualified as admissible hearsay under the principled
    exception to the rule against hearsay evidence.  Like the improperly admitted
    hearsay evidence from Mr. Groulx, this evidence supported the Crowns case on
    the issue of animus.

[66]

The
    improper admission of Mr. Pointers statement to the police may or may not have
    amounted to reversible error on its own.  However, its improper admission
    serves to exacerbate the prejudice suffered by the appellant through the
    improper admission of Ms. Smiths statement to Mr. Groulx.

V

the other grounds of appeal

(i)

The ruling on the scope of surrebuttal evidence

[67]

The
    defence called Dr. Gojer, a psychiatrist.  He testified about the appellants
    psychiatric condition and offered an opinion as to his state of mind when he
    stabbed Ms. Smith.  The Crown called Dr. Ramshaw in reply.  The defence sought
    to recall Dr. Gojer in surrebuttal.

[68]

The
    defence outlined some 14 issues (some closely related) on which it proposed to
    question Dr. Gojer.  The trial judge allowed surrebuttal evidence on four of
    the issues.  On appeal, the appellant submits that the trial judge should have
    allowed surrebuttal on an additional four issues.

[69]

As
    I would order a new trial on the hearsay ground, and there is no prospect that
    the admissibility of the proposed surrebuttal evidence from Dr. Gojer could become
    an issue on the retrial, I do not propose to examine the ruling at length.  The
    trial judge understood that he had the discretion to permit surrebuttal
    evidence.  He considered the relevance of the proposed surrebuttal testimony
    and whether the appellant had had a full opportunity to address the issues which
    were the subject of the proposed surrebuttal with Dr. Gojer when Dr. Gojer testified
    as part of the defence:  see D. Watt,
Watts Manual of Criminal Evidence
,
    2016 ed. (Toronto: Thompson Reuters Canada, 2016), at para. 23.01.

[70]

I
    see no error in principle in the trial judges exercise of his discretion.  He
    carefully reviewed the evidentiary record.  Nor did he act unreasonably in
    drawing the surrebuttal line where he did.  Some judges, having decided that
    some surrebuttal evidence was appropriate, may have allowed more leeway in the
    evidence to be called than did the trial judge.  It is not, however, the role
    of this court to micromanage the decisions made by the trial judge in the
    exercise of his power to manage the conduct of the trial.

[71]

The
    trial judges ruling did not deny the appellant the opportunity to fully and
    fairly present his defence and, specifically, the evidence of Dr. Gojer as it might
    assist his defence.

(ii)

The refusal to leave the defence of provocation

[72]

At
    trial, the defence maintained that the Crown had failed to prove beyond a
    reasonable doubt that the appellant had either of the intents required for
    murder under s. 229 of the
Criminal Code
.  There was no other defence
    advanced.  Specifically, the defence of provocation as defined in s. 232 of the
Criminal Code
was not put forward.  That defence assumes the existence
    of the required intention for murder and creates a partial defence for those
    who kill with that intention.

[73]

In
    submissions before the trial judge delivered his final instructions to the
    jury, counsel for the defence took the position that the evidence gave rise to
    the defence of provocation and that the trial judge was obliged to put the
    defence to the jury.  The trial judge rejected that submission and did not
    leave the defence of provocation with the jury.  He later gave reasons for his
    refusal to leave the defence:
R. v. Dupe
, 2011 ONSC 3316, 94 W.C.B.
    (2d) 714.

[74]

In
    his reasons, the trial judge correctly observed that he was required to put
    provocation to the jury if the evidence, considered in its totality, gave an
    air of reality to that defence even though the defence had not been advanced
    at trial (at para. 24).  The trial judge also identified the essential
    elements of the provocation defence by framing four questions, at para. 29:

·

Is there evidence of a wrongful act or insult?

·

Is there evidence that the wrongful act would deprive an ordinary
    person of self-control?

·

Is there evidence that the wrongful act actually deprived the
    accused of his self-control?

·

Is there evidence that the accused reacted to the wrongful act
    quickly and before there was time for his passion to cool?

[75]

The
    defence was only available if the jury, on a reasonable view of the entirety of
    evidence, could have a doubt on each of the factual findings implicit in the
    four questions posed by the trial judge.  He concluded that there was some
    evidence upon which a jury could have a doubt on the first question.  The
    appellant testified that Mr. Groulx came at him with a board, although on the
    appellants evidence, it is unclear whether this happened after or before the
    appellant had killed Ms. Smith.  On a generous reading, Mr. Groulxs actions
    could constitute a wrongful act or insult for the purposes of the provocation
    defence (at para. 31).  The trial judge went on to hold that there was no evidentiary
    basis upon which the jury could have a doubt in respect of the facts underlying
    any of the other three elements of the provocation defence (at paras. 37-55).  Accordingly,
    he declined to leave the defence with the jury.

[76]

Nothing
    in the appellants testimony suggested he acted under provocation as defined in
    s. 232 of the
Criminal Code
when he killed Ms. Smith.  The expert
    evidence called by the defence claimed that the appellant did not have the
    capacity to form the intent required for murder.  That evidence contradicts a
    provocation defence which presumes the intent required for murder.  There can,
    however, be an air of reality to a provocation defence even when that defence
    runs inconsistent with the position advanced in the defence evidence at trial:
    see
R. v. Buzizi
, 2013 SCC 27, [2013] 2 S.C.R. 248; and
R. v. Gill
,
    2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 18-21.  The position of the defence
    is, however, part of the context in which the air of reality test should be
    applied to the totality of the trial evidence:  see
R. v. Faid
, [1983]
    1 S.C.R. 265, at pp. 278-79; and
R. v.

Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53.

[77]

In support of the claim that provocation should have been left with the
    jury, counsel relies heavily on the appellants statement to the police after he
    killed Ms. Smith.  The appellant told the police that he lost it.  Counsel
    combines this utterance with the appellants trial evidence that Mr. Groulx
    approached him holding a piece of wood over his head to produce a wrongful act (Mr.
    Groulxs conduct) and a loss of control by the appellant (the appellants
    statement to the police).  However, nothing in the evidence is capable of
    connecting any loss of control by the appellant to Mr. Groulxs alleged misconduct.

[78]

Counsels
    argument focuses on individual pieces of evidence considered in isolation.  The
    availability of the defence of provocation requires an examination of the
    totality of the evidence in the context of the entire trial.  It is not enough that
    a minute parsing of the evidence reveals bits and pieces of evidence that are
    consistent with some aspects of the provocation defence:  see
Cinous
,
    at paras. 47-61; and
R. v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420, at
    para. 21.

[79]

As
    explained in
R. v. Thibert
, [1996] 1 S.C.R. 37, at para. 33, a trial
    judges decision not to leave a defence with a jury is entitled to some
    deference on appeal.  The trial judges careful analysis of the evidence and
    the governing legal principles fully support his conclusion that there was no
    air of reality to the defence of provocation.  I would not interfere with his
    ruling.

VI

conclusion

[80]

For
    the reasons set out above, I would allow the appeal and direct a new trial on
    the charge of second degree murder.

Released: DD  SEP 02 2016

Doherty J.A.

I agree K. Feldman J.A.

I agree David Brown J.A.

[1]

Counsel in oral argument abandoned a fourth ground of appeal
    relating to the
Vetrovec
 instruction to the
    jury.

[2]

The appellant, in his evidence, admitted to grabbing Ms. Smith
    by the shirt on one occasion (
supra
, para. 19).
    The trial judge was of course unaware of that evidence when he ruled on the admissibility
    of the hearsay evidence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gill, 2016 ONCA 667

DATE: 20160909

DOCKET: C62153

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Bradley Gill

Appellant

Jason Bradley Gill, acting in person

Andrew Faith, duty counsel for the appellant

Geoffrey Roy, for the respondent

Heard: September 7, 2016

On appeal from the conviction entered on March 21, 2016
    by Justice Fletcher Dawson of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the trial judge erred in failing to consider
    whether his arrest and detention was arbitrary apart from a failure to comply
    with section 495(2) of the
Criminal Code
. It is not clear that this
    argument was advanced to the trial judge. There is no basis in the record to
    conclude that the conduct of the officer was arbitrary in the sense described
    in
R. v. Cayer
, [1988] O.J. No. 1120 (C.A.), capricious, despotic or
    unjustifiable.

[2]

She found the appellant out of it lying on a median beside a busy
    roadway, and he volunteered that he was in possession of marihuana. Appeal
    dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ghorashi, 2016 ONCA 664

DATE: 20160908

DOCKET: C60098

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fakhrolsadat Ghorashi

Appellant

Fakhrolsadat Ghorashi, in person

Yoni S. Rahamin, duty counsel

Hannah Freeman, for the respondent

Heard: September 6, 2016

On appeal from the conviction entered on October 30, 2014
    and the sentence imposed on February 10, 2015 by Justice D. Grace of the
    Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of operating a motor vehicle in a manner
    dangerous to the public thereby causing bodily harm.  She received a one month
    sentence.  She appeals from conviction and sentence.

[2]

The trial judge was able to rely on a video camera that recorded what
    occurred in the taxi and on two eye witnesses.  He concluded that on three
    occasions, the taxi was set in motion by the appellant despite the fact that
    the rear door was open, the victim was sitting just inside with no seatbelt,
    and was in a drunken state.  He found that the appellant knew the victim was
    trying to exit as the appellant drove away and that her actions caused the
    victim to lose her balance, fall and sustain the injuries depicted in the
    photographs introduced into evidence.

[3]

The record fully supported these factual findings.

[4]

The trial judge made no legal error.  He did not misapprehend the
    evidence and clearly considered the manner of the appellants driving.

[5]

Before this court, the appellant did not press the request for leave to
    appeal sentence but in any event the sentence was fit.

[6]

The appeal of her conviction is dismissed.  Leave to appeal sentence is
    granted but the sentence appeal is dismissed.


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.S., 2016 ONCA 670

DATE: 20160909

DOCKET: C59135

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.

Appellant

Bradley Burgess, for the appellant

Jessica Smith Joy, for the respondent

Heard and released orally: September 2, 2016

On appeal from the conviction entered on April 4, 2014 by
    Justice
Thomas R.
Lofchik of the Superior Court of
    Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was charged with 12 counts of physical and sexual abuse of
    his common law wife. The trial judge acquitted him on ten of the counts and
    convicted him of two counts. The appellant submits that the convictions are
    unreasonable, that the trial judge misapplied
W.(D.)
, and that his
    reasons were insufficient.

[2]

We do not accept this submission. There was a crucial distinction in the
    evidence pertaining to the counts on which the appellant was acquitted and
    those on which he was convicted. On the counts that the trial judge acquitted
    the appellant, the medical evidence of the complainants injuries was not
    consistent with her allegations. On the convictions, the evidence of A.S.
    confirmed the very injuries the complainant alleged. The trial judge was
    entitled to rely on Ms. Steins evidence as confirmatory evidence of the
    complainants allegations. The acceptance of A.S.'s  evidence together with
    the complainants evidence provided a reasoned explanation for the rejection of
    the appellants evidence.

[3]

Accordingly, the appeal is dismissed.

John Laskin J.A.

Robert J. Sharpe J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2016 ONCA 654

DATE: 20160902

DOCKET: C59776

Doherty, van Rensburg and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Johnson

Appellant

Daniel C. Santoro, for the appellant

Ghazala Zaman, for the respondent

Heard and orally released:  August 18, 2016

On appeal from conviction entered by Justice D.T. Vyse of
    the Ontario Court of Justice on July 21, 2014.

ENDORSEMENT

[1]

The appellant was convicted of unlawfully producing marijuana and the
    possession of marijuana for the purposes of trafficking.  He was found by the
    police in a residence located at Thirty Road North in Beamsville, Ontario.  The
    residence was being used as a marijuana grow-op.  When he was arrested, the
    appellant immediately told the police that his boss had a licence to produce
    marijuana at that residence.  He was there to meet a water truck, presumably to
    water the plants.  In fact, although his boss had a licence for another nearby location,
    he did not have a licence to grow marijuana at Thirty Road North.

[2]

The appellant did not testify.  He did, however, rely on his statements
    to the police to support a defence at trial that he honestly believed that his
    boss had a licence making the grow-op a lawful operation.

[3]

On appeal, Crown counsel submits that there were two distinct bases upon
    which the appellant could be convicted of the two charges.  First, on the basis
    that he assisted his boss in cultivating the marijuana.  According to the
    Crown, the appellants statement that he believed his boss had a licence to
    grow marijuana at the residence could not, standing alone, give an air of
    reality to the claim of an honest belief that the grow-op was lawful.  Second,
    the Crown submits that as the appellant was involved in the cultivation of the marijuana,
    he had to be personally licensed under the applicable legislation and was, by
    his own admission, not personally licensed.

[4]

Whatever the merits of the second basis put forward by the Crown on
    appeal, it was not the basis upon which the case was decided at trial.  The
    trial judge convicted on the basis that the appellant aided and abetted his
    boss in the cultivation of the marijuana.  The trial judge focused not on
    whether the appellant was licensed to cultivate marijuana, but rather on his
    belief that his boss was licensed to cultivate marijuana at the residence.

[5]

We are satisfied that the trial judge erred in law in holding that the defence
    had an onus to establish the honest belief defence.  The trial judge found that
    the defence could not be made out by the appellant unless he had seen a
    licence.  In our view, the trial judge was wrong to place any onus on the
    appellant and she was wrong to hold that the defence could only be made out by
    evidence that the appellant had seen a licence.  The Crown was required to
    prove beyond a reasonable doubt that the appellant knew his boss did not have a
    licence.  This was an essential finding before the appellant could be found
    liable as an aider and abetter.  The trial judge was obliged to consider the
    appellants statement to the police just as he was obliged to consider the
    other evidence, including the evidence that his boss had a licence to grow at
    another residence and had applied for a licence at the Thirty Road North
    residence.

[6]

In our view, on a consideration of the totality of the evidence viewed
    through the lens of the Crowns burden of proof, the trial judge may or may not
    have rejected the honest belief defence.  We cannot say.  There must be a new
    trial on both charges.

[7]

The appeal is allowed, the convictions are quashed and a new trial is
    ordered.

Doherty J.A.

K.M. van Rensburg
    J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2016 ONCA 690

DATE: 20160920

DOCKET: C61702

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Lewis

Appellant

Catriona Verner, for the appellant

Luke Schwalm, for the respondent

Heard: September 14, 2016

On appeal from the conviction entered on April 1, 2016
    and the sentence imposed on April 24, 2016 by Justice Ronald J. Richards of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted on several counts relating to an alleged
    assault and robbery of the complainant during a drug transaction: assault
    causing bodily harm; robbery; uttering a death threat; and breach of a
    probation order.

[2]

The appellant appeals only his conviction for robbery. His argument is a
    narrow one  the insufficiency of the trial judges reasons.

[3]

The appellant contends the trial judge must not have accepted certain
    parts of the complainants evidence because he did not convict the appellant on
    the charge of aggravated assault, but only on the lesser included offence of
    assault causing bodily harm. In light of that, the appellant argues the trial
    judge was obligated to explain in his reasons how he dealt with the complainants
    conflicting evidence relating to the robbery count, specifically the
    complainants confusing evidence about what sum of money was taken from him
    during the assault.

[4]

The appellant submits the trial judge failed to do so, stating only in
    his reasons:

In respect to the count of robbery, while the court accepts
    that some money was handed over to Mr. Lewis voluntarily as part of the attempt
    to obtain his pill, the court also accepts that other monies, while not
    specifically stated, were obtained through the violent attack and threats by
    Mr. Lewis, and thus the count of robbery has been proven beyond a reasonable
    doubt.

[5]

The appellant submits those reasons are insufficient to support the
    conviction for robbery, and that conviction should be set aside.

[6]

We do not agree. The trial judges reasons provided a sufficient
    explanation of the basis for convicting the appellant on the robbery count and
    responded to the theory of the defence that the complainant was an unreliable
    witness who was confused about matters concerning the essence of the robbery
     where he kept the money on his person and the denominations taken from him.

[7]

The complainant testified that on the day in question he had pawned his
    X-box for $150 before embarking on his search to purchase drugs. The Crown
    filed a receipt from the pawnshop for that transaction. The complainant
    testified he received from the pawnshop a $50 bill and five $20 bills.

[8]

The complainants testimony was inconsistent about the amount of money he
    voluntarily handed over to the appellant to purchase drugs, the precise
    denominations he used, and where he had kept the money on his person. The trial
    judge was alive to the inconsistencies. As he noted in his reasons: [t]here is
    confusion over the amounts of money and where they were kept on his person.

[9]

However, the complainant was consistent in his evidence that during the
    assault the appellant forced him to hand over more money. This led the trial
    judge to conclude: [o]ne thing certain from his testimony is that he had $150
    from the X-Box sale and some of that money was handed over voluntarily for
    drugs and some was not voluntarily handed over. The amount really does not
    matter. Although the trial judge acknowledged imperfections in the
    complainants evidence, he held that these areas of imperfection would not
    affect his reliability or his credibility. Having accepted the complainants
    evidence that the appellant forced him to hand over money, the trial judge
    concluded that other monies, while not specifically stated, were obtained
    through the violent attack and threats by Mr. Lewis.

[10]

These reasons on the robbery count were sufficient in the circumstances.
    They clearly explained why the trial judge found the complainant reliable and accepted
    the complainants consistent evidence that he did not voluntarily hand over all
    his cash to purchase drugs, but had retained some, only to be forced to part
    with some of it as a result of the appellants assault. Read in their entirety
    and in the context of the evidence, the reasons show why the judge decided as
    he did:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.

[11]

Finally, the trial judges decision to dismiss the charge of aggravated
    assault and convict of the lesser and included offence of assault causing
    bodily harm did not, as the appellant suggests, show that the trial judge
    disbelieved parts of the complainants testimony. The trial judge explained
    that some of the complainants injuries were caused by a fall he suffered
    subsequent to the assault and it was not possible to conclude, with the
    requisite degree of certainty, which injuries were caused by the assault and
    which were caused by the subsequent fall.

[12]

The appeal is dismissed.

E.E. Gillese J.A.

Paul Rouleau J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Logue, 2016 ONCA 659

DATE: 20160902

DOCKET: C60725

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Logue

Appellant

Solomon Friedman, for the appellant

Michael Fawcett, for the respondent

Heard and released orally: August 30, 2016

On appeal from the conviction entered on April 15, 2015
    by
Michel Z. Charbonneau
of the Superior Court of
    Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for impaired driving causing bodily
    harm. He submits that the trial judges finding was unreasonable. As part of
    his overall submission he makes two specific arguments. First, the trial judge
    misapprehended the evidence surrounding the appellants refusal to provide a breath
    sample because he did not take into account that the appellant was distraught
    over his girlfriends injuries. Second, the trial judge impermissibly relied on
    the appellants lie to the firefighter that he had not been drinking.

[2]

We do not agree with the appellants submission. Four considerations
    taken together reasonably supported the trial judges finding that the
    appellants ability to operate a motor vehicle was impaired by alcohol: first
    his evidence of alcohol consumption; second the accident was unexplained; third
    the appellants obstructive behaviour in the ambulance; and fourth the
    statutory inference available from the appellants refusal to give a breath
    sample. In our view, there was evidence that supported the trial judges
    findings underlying these four considerations.

[3]

On the appellants two specific arguments we conclude as follows. First,
    at para. 108 of his reasons, the trial judge took account of the appellants
    emotional state when he refused to give a breath sample. Still, the trial judge
    found that the appellant was conscious and coherent when he said no. That
    finding was available to the trial judge on Officer Bruneaus evidence. Second,
    we agree with the Crown that the appellants no answer to the question
    whether he was drinking was admissible. The appellant was not detained at the
    time and he answered without feeling compelled to do so.

[4]

Accordingly, the appeal is dismissed.

John
    Laskin J.A.

Robert
    J. Sharpe J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marton, 2016 ONCA 691

DATE: 20160920

DOCKET: C62258

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Daniel Marton

Respondent

Jennifer McKee, for the appellant

No one appearing for the respondent

Heard: August 30, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated April 4, 2016 by Justice D.K. Gray of the Superior Court of
    Justice, dismissing the appellants application for substituted service in
    connection with the appeal from the conviction entered on February 3, 2016 by
    Justice Forsyth of the Ontario Court of Justice.

B.W. Miller J.A.

A.

overview

[1]

At issue in this appeal is whether a summary conviction appeal court has
    the jurisdiction to order substituted service of a notice of appeal. For the
    reasons that follow, I conclude that it does.

[2]

After a trial in the Ontario Court of Justice, the respondent was convicted
    of stunt driving contrary to s. 172 of the
Highway Traffic Act
, R.S.O. 1990, c. H.8,
and acquitted of
    two offences under the
Criminal Code
,
    R.S.C. 1985, c. C-46
: dangerous operation of a motor vehicle (s.
    249(1)(a) and flight from a peace officer (s. 249.1(1)). The Crown seeks to
    appeal the two acquittals and has attempted to serve the respondent with a
    notice of appeal.

[3]

After numerous failed attempts to serve the respondent personally, the
    Crown concluded that he was evading service and applied to the Superior Court
    of Justice for an order for substituted service. The application was brought on
    an
ex parte
basis before Gray J., acting as summary conviction appeal
    court (SCAC). The Crown relied on rule 5.04(1) and 40.06(3) of the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, which permit
    an order of substituted service. The application judge dismissed the
    application on the basis that an SCAC does not have the jurisdiction to order
    substituted service. Although rules 5.04(1) and 40.06(3) purport to authorize
    substituted service, the application judge found the rules to be ineffective,
    on the basis that there is no express provision in the
Code
authorizing substituted service for summary conviction appeals and that the
    rules are therefore inconsistent with the
Code
.

[4]

The Crown has sought leave to appeal that decision to this Court, and if
    leave is granted, seeks an order allowing the appeal and remitting the matter
    to the SCAC with directions to order substituted service of the notice of
    appeal of the acquittals, and to hear the appeal on its merits.

[5]

I would grant leave to appeal and would allow the appeal. The SCAC has the
    jurisdiction and the authority to order substituted service.

B.

analysis

(1)

Leave to appeal

[6]

This court has jurisdiction to hear the case because it involves a
    question of law alone. It is appropriate to grant leave to appeal under s.
    839(1)(a) of the
Code
. The appeal involves a question of law which is of
    significance to the general administration of justice beyond the present case.
    This is a matter of practice that should be clarified province-wide.

(2)

Appeal

[7]

The Application Judge concluded that the SCAC has no jurisdiction to
    order substituted service. This conclusion rests on the absence of a
Code
provision expressly authorizing a SCAC to permit substituted service, in light
    of the express authorization for substituted service that the
Code
provides for the appeals of indictable matters in s. 678.1:

678.1 Where a
    respondent cannot be found after reasonable efforts have been made to serve the
    respondent with a notice of appeal or notice of an application for leave to
    appeal, service of the notice of appeal or the notice of the application for
    leave to appeal may be effected substitutionally in the manner and within the
    period directed by a judge of the court of appeal.

[8]

The absence of an analogue to s. 678.1 governing substituted service in
    summary conviction appeals led the application judge to conclude that rules
    5.04(1) and 40.06(3) are, to the extent that they authorize substituted service
    in summary conviction appeals, inconsistent with the
Code
and therefore
    of no effect.

[9]

Against this, the Crown argues that the application judge drew the wrong
    conclusion from the existence of s. 678.1. The Crown argues that s. 678.1 was
    enacted to address a jurisdictional problem facing the Court of Appeal that did
    not apply to SCACs. Unlike in SCACs, the Crown argues that there were  and are
     no rules explicitly authorizing the order of substituted service in appeals
    to this court. There is some question as to whether s. 678.1 was entirely
    necessary, as there is support at common law for the proposition that this
    court has authority to order substituted service (
R. v. Gruener
,
    [1979] O.J. No. 421 (H.C.J.).

[10]

The Crown and the application judge, then, start from different
    background propositions. The application judge takes as a starting point that an
    explicit
Code
provision is necessary to ground orders of substituted
    service in summary conviction appeals, and that nothing less than an express
    provision will suffice.

[11]

Whatever the circumstances faced by this court at the time of the
    adoption of s. 678.1, it seems to me that the authority of the courts to make
    rules regarding service of a notice of appeal in a summary conviction matter
    including an order for substituted service  is solidly anchored in the
Code
.

[12]

Section 482(1) authorizes every court of criminal jurisdiction to make
    rules of court, provided that they are not inconsistent with the
Code
or any other federal statute:

482 (1)
Every superior
    court of criminal jurisdiction and every court of appeal may make rules of
    court not inconsistent with this or any other Act of Parliament, and any rules
    so made apply to any prosecution, proceeding, action or appeal, as the case may
    be, within the jurisdiction of that court, instituted in relation to any matter
    of a criminal nature or arising from or incidental to any such prosecution,
    proceeding, action or appeal.

[13]

More specifically, the
Code
directs that in summary conviction
    appeals, the manner of service of a notice of appeal is governed by rules of
    court. Section 815(1), addressing summary conviction appeals, provides that:

815
(1) An appellant
    who proposes to appeal to the appeal court shall give notice of appeal in such
    manner and within such period as may be directed by rules of court.

[14]

On the reading given to it by the application judge, however, s. 815(1)
    is not a power-conferring rule that authorizes the making of rules respecting
    notice. It is rather merely a direction to appellants that they must conform to
    whatever rules exist with respect to notice, and the authority for making those
    rules must reside elsewhere. I disagree with this reading.

[15]

Section 482(1) is sufficient authority to ground rules 5.04(1) and
    40.06(3), governing substituted service in summary conviction appeals. The
    application judge erred in dismissing s. 482(1) as a source of authority on the
    basis that rules permitting substituted service in summary conviction appeals are,
    by implication, inconsistent with the
Code
. As no such implication can
    be drawn from the existence of s. 678.1, s. 482(1) is sufficient authority for
    rules 5.04(1) and 40.06(3) governing substituted service.

C.

dISPOSITION

[16]

I would allow the appeal, set aside the order refusing substituted
    service, and remit the matter back to the SCAC for a determination of whether
    substituted service shall be ordered.

Released: BW SEP 20 2016

B.W. Miller J.A.

I agree. John Laskin
    J.A.

I agree. Robert J.
    Sharpe J.A


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohammed, 2016 ONCA 678

DATE: 20160912

DOCKET: C61478

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allan Mohammed

Appellant

Allan Mohammed, acting in person

Andrew Faith, duty counsel

Hannah Freeman, for the respondent

Heard: September 6, 2016

On appeal from the sentence imposed on January 6, 2015 by
    Justice Robert J. Nightingale of the Superior Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his sentence on the grounds that the global
    sentence of 42 months was excessive and has uncontemplated negative immigration
    consequences.

[2]

The global sentence was not excessive.  Some of the offences taken alone
    and all of the offences taken together constitute a major and serious fraud
    worthy of a penitentiary sentence: see
R. v. Bogart,
2002 CanLII 41073
    (ONCA
)
and
R. v. Dobis
, 2002 CanLII 32815 (ONCA).  It is not surprising
    that trial defence counsel took the position that a global sentence of three
    years imprisonment was appropriate.

[3]

The appellants second submission, flowing from the negative immigration
    consequences, is that his appeal should be allowed to the extent of imposing
    seven sentences of six months each.  We are not prepared to do this.  It would
    be an artificial way of avoiding Parliaments intent with respect to serious
    crimes committed by persons who immigrated to Canada: see
R. v. Pham,
2013
    SCC 15.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murphy, 2016 ONCA 705

DATE: 20160927

DOCKET: C58016

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Murphy

Appellant

Timothy E. Breen, for the appellant

Nadia Thomas, for the respondent

Heard: September 22, 2016

On appeal from the conviction entered on December 5, 2012
    by Justice E. Eva Frank of the Superior Court of Justice.

ENDORSEMENT

[1]

At the outset of his trial on charges of attempted murder, aggravated
    assault and assault, the appellant applied for a ruling allowing him to
    cross-examine the victim of a stabbing on his propensity for violence.  The
    victim had a criminal record with in excess of 50 convictions.

[2]

Defence counsel advised the trial judge that he planned to put
    self-defence before the jury and that he expected that a third-party witness
    would be available to support the claim that the victim had instigated the
    confrontation.

[3]

In our view, the trial judge was correct in ruling that at that stage in
    the proceeding, there was no evidentiary basis on which to permit
    cross-examination on propensity for violence.  While the victim could be
    cross-examined on his criminal record, the right to cross-examine is not
    unlimited.  Applying the rule in
R. v. Scopelliti
(1981), 63 C.C.C.
    (2d) 481 (Ont. C.A.), there must be some other appreciable evidence of the
    [victims] aggression on the occasion in question to ground cross-examination
    on propensity.  In the absence of such evidence, the trial judge was correct to
    rule that the request to cross-examine on propensity was premature.

[4]

We also note that the trial judge invited the appellant to renew his
    application if a basis to cross-examine on propensity arose later in the
    trial.  However, for his own strategic reasons, the appellant chose not to do
    so.

[5]

In any event, no prejudice ensued to the appellant.  Ultimately details of
    the victims convictions and his propensity for violence were put to the jury.

[6]

For these reasons, the appeal is dismissed.  The appellant abandoned his
    sentence appeal.

Doherty J.A.

S.E. Pepall J.A.

C.W. Hourigan J.A.