COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Haniffa, 2021 ONCA 326

DATE: 20210517

DOCKET: C64988

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erhard Haniffa

Appellant

Boris Bytensky, for the appellant

Tracy Kozlowski, Katie Doherty and Lisa
    Fineberg, for the respondent

Heard: January 12-13, 2021 by
    videoconference

On appeal from
    the convictions entered by Justice Joseph F. Kenkel of the Ontario Court of
    Justice on June 13, 2017, with reasons reported at 2017 ONCJ 525, and the
    ruling on multiple convictions dated October 2, 2017, and the ruling on
    entrapment dated November 8, 2017, with reasons reported at 2017 ONCJ 780, and the
    rulings on s. 11(b) dated November 8, 2017 and September 4, 2018, with reasons
    reported at 2017 ONCJ 781 and 2018 ONCJ 615, and the sentence imposed on
    October 29, 2018, with reasons reported at 2018 ONCJ 960.

Juriansz J.A.:

[1]

This appeal was argued together with two other
    defence appeals,
R. v. Jaffer
and
R. v. Dare
, and a Crown
    appeal,
R. v. Ramelson
. All the appeals arose out of arrests and
    prosecutions pursuant to Project Raphael of the York Regional Police (YRP). Project
    Raphael was an undercover YRP investigation that began in 2014 with the
    objective of reducing the demand for sexual services from juveniles in the
    region by targeting the buyer side.

[2]

As part of the investigation, the police posted
    fake advertisements in the escorts section of the online classified
    advertising website Backpage. When persons responded to the ads, an undercover officer
    posing as the escort would disclose in the ensuing text chat that she was underage.
    Individuals who continued the chat and arranged sexual services and a price
    were directed to a hotel room to complete the transaction and were arrested and
    charged on their arrival.

[3]

The common issue in the four appeals is whether
    the individuals who were arrested and prosecuted pursuant to Project Raphael
    were entrapped by the police. The appellant also appeals his convictions, the
    dismissals of his s. 11(b) applications, the trial judges refusal to stay the
    third count with which he was charged on the
Kienapple
principle, and
    his sentence.

[4]

For the reasons that follow, I would dismiss the
    appeal of all the appellants post-trial applications. I would allow the
    sentence appeal.

A.

THE FACTS IN THIS CASE

[5]

In this case, the ad the police placed on the escorts
    section of Backpage purported to have been placed by Jamie. Jamie described
    herself as YOUNG shy FRESH and NEW. The ad included photographs of a female
    police officer, whose face was not shown, posing as Jamie. The ad indicated
    Jamie was 18 years old, the minimum age allowed by Backpage.

[6]

On March 22, 2016, the appellant texted Jamie
    and asked if she was working. The undercover officer, Truong, responded and after
    exchanging a number of preliminary messages, texted r u okay if im not quite
    18 yet?. The appellant asked, Is this like a cop thing or something? and
    then asked Jamie how old she was. Truong responded, Im 15 to be hones but i
    look older hun. The appellant was wary and said in several texts Not getting
    a good feeling about this, No r u [a cop], and Dont even know if I am
    talking to the person I am seeing [in the ad]. Truong sent additional texts
    referring to Jamies age as 15. Despite his skepticism, the appellant continued
    the text chat and eventually proceeded to the hotel to meet Jamie for the
    sexual services negotiated in the text chat.

[7]

When the appellant arrived at the room, he was
    arrested and charged with the following three counts:

Count 1: Communicating via telecommunication
    with a person he believed to be under the age of 18 years for the purpose of
    facilitating an offence under s. 286.1(2) (obtaining sexual services from a minor)
    contrary to s. 172.1(2) (child luring under 18).

Count 2: Communicating via telecommunication
    with a person he believed to be under the age of 16 years for the purpose of
    facilitating an offence under s. 152 (invitation to sexual touching) contrary
    to s. 172.1(2) (child luring under 16).

Count 3: Communicating for the purpose of
    obtaining for consideration the sexual services of a person under the age of 18
    years contrary to s. 286.1(2) (communicating to obtain sexual services from a
    minor).

[8]

While the information references s. 171.1(2), counts
    1 and 2 relate to the offences under ss. 172.1(1)(a) (child luring under 18)
    and 172.1(1)(b) (child luring under 16). Section 172.1(2) sets out the
    punishment for these offences.

[9]

The appellants defence at trial was that he did
    not believe the person with whom he was communicating was younger than 18. He
    said he did not believe he was even speaking to a woman based on the speech
    patterns used in the messages. He said he thought he was speaking either to a
    police officer or a pimp trying to set him up for extortion. The appellant
    testified that because of his experience as a child victim of a serious sexual
    assault he would never want to have sex with a minor.

[10]

The trial judge found the appellant guilty on
    all three counts.

[11]

On October 2, 2017 the judge ruled on whether
    some of the convictions should be stayed according to
Kienapple v. R.
, [1975]
    1 S.C.R. 729. The Crown agreed that one of the two counts under s. 172.1 should
    be stayed. The appellant submitted that, in addition, count 2 (child luring
    under 16) and count 3 (communicating to obtain sexual services from a minor) contained
    substantially the same elements and that one of those convictions should also
    be stayed. The judge entered a stay only on count 1 (child luring under 18).

[12]

The appellant also applied for a stay of
    proceedings on the basis he had been entrapped. The application was denied.

[13]

The appellant also brought two applications for
    a stay of proceedings claiming delay in violation of his s. 11(b) right under
    the
Canadian Charter of Rights and Freedoms
to a trial within a
    reasonable time. Both applications were denied.

[14]

He brought the first application submitting that
    the entrapment hearing was scheduled beyond the 18-month presumptive ceiling
    set in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. In a decision
    released on November 8, 2017, the trial judge dismissed the application on the
    basis that the presumptive ceiling in
Jordan
did not apply to
    proceedings after the verdict. He stated that the principles underlying
Jordan
did not support extending the framework to include post-trial applications.

[15]

The appellant brought the second application primarily
    based on a delay in disclosure before sentencing and a Crown application with
    respect to mandatory minimum sentences. In a decision dated September 4, 2018,
    the trial judge stated that the ultimate question was whether the case had
    taken markedly longer than what was reasonably required and concluded that the
    matter had moved quickly at every stage. He found each of the nine post-verdict
    applications were brought and heard efficiently and could not have moved along
    much more quickly than they did.

B.

arguments on appeal

[16]

The appellant submits
    the trial judge made five errors:

1.

by finding the appellants testimony did not
    raise a reasonable doubt without considering his good character evidence;

2.

by failing to apply the
Kienapple
principle to conditionally stay count 2 (child luring under 16), in addition to
    count 1 (child luring under 18);

3.

by failing to find that the appellants right to
    be tried within a reasonable time as guaranteed by s. 11(b) of the
Charter
was violated; and

4.

by concluding Project Raphael was a bona fide
    inquiry and failing to find that the investigative scheme constituted
    entrapment; or

5.

in the alternative, by failing to find that the
    police conduct constituted entrapment for the s. 172.1(1)(b) (child luring
    under 16) offence.

The appellant
    also appeals his sentence on the basis that COVID-19 has rendered his sentence
    unfit.

C.

analysis

(1)

Appellants good character testimony

[17]

The appellant complains that the trial judge did
    not mention his testimony that he would not have committed any sexual offence
    involving a minor because he had been a victim of sexual assault as a child. He
    argues that the trial judge was obliged to consider this evidence and, if he
    rejected it, explain why it did not leave him with a reasonable doubt.

[18]

This was a trial before a judge alone. The trial
    judge stated he had considered all the evidence, he gave cogent reasons for his
    determinations of credibility, and he concluded the appellants evidence did
    not leave him with a reasonable doubt. He described the appellants evidence as
    internally contradictory and illogical to the point of being nonsensical on
    the central points. He said the appellants testimony was contradicted by
    credible external evidence including the text messages he sent and his actions
    on the day in question.

[19]

The trial judges reasons for rejecting the
    appellants evidence were sufficient. The trial judge did not commit any
    reversible error by failing to avert to the evidence the appellant led to
    support his good character.

(2)

Kienapple

[20]

The
    trial judge held, and the Crown conceded, that counts 1 and 2, the two child
    luring charges, shared a sufficient factual and legal nexus such that one
    should be stayed. He stayed count 1 (child luring under 18).

[21]

The trial judge noted, as the parties agreed, that there was a sufficient
    factual nexus between counts 2 (child luring under 16) and 3 (communicating to
    obtain sexual services from a minor) to satisfy the
Kienapple
principle.
    However, relying on in
R. v. Prince
, [1986] 2 S.C.R. 480, he found a lack
    of legal nexus between counts 2 and 3 because s. 172.1 and s. 286.1(2) have
different and distinguishing elements
that showed different
    statutory purposes. The luring offence in count 2 was directed towards the use
    of telecommunication which enables adults to engage in anonymous, low
    visibility contact with vulnerable children. The offence in count 3 was aimed
    at commercialized prostitution involving persons under 18 years of age.
Therefore, he concluded that the
Kienapple
principle did not
    apply to counts 2 and 3.

[22]

The appellant submits the trial judge erred by conditionally
    staying only count 1 under the
Kienapple
principle. Count 1 charged the
    appellant under s.172.1 with luring a person under 18 to facilitate the
    commission of the s. 286.1(2) offence.

[23]

The appellant submits count 3 (communicating to
    obtain sexual services from a minor) should have been stayed as well. He points
    out that, in this case, all three counts arose from one conversation by text
    message, by one person, on one occasion, with one person believed to be
    underage, for the purpose of engaging in one specific sexual encounter. This,
    he submits, shows it is clearly the same delict.

[24]

The appellant submits that if the purpose
    behind the legislation was sufficient reason to avoid the application of the
    rule against multiple convictions, the trial judge should not have
    conditionally stayed either of the luring charges because they were both
    enacted for the same statutory purpose.

[25]

Finally, the appellant claims to demonstrate the
    error by submitting that had the appellant been tried and convicted of the two
    luring counts only, he would be able to plead
autrefois convict
if the Crown
    subsequently sought to try him on the s. 286.1(2) count.

[26]

I see no error in the trial judges reasoning.
    The two counts do indeed have the different and distinguishing elements he
    identified. I also agree that the two offences have the different statutory
    purposes he stated.

[27]

The appellants observation that count 1 (child
    luring under 18) also has a different statutory purpose to count 3
    (communicating to obtain sexual services from a minor) is not on point. The
    trial judge stayed count 1 (child luring under 18) because of its factual and
    legal nexus to count 2 (child luring under 16), and not count 3 (communicating
    to obtain sexual services from a minor). The remaining question is related to
    the relationship of count 2 and count 3.

[28]

I reproduce the two counts:

Count 2: Communicating via telecommunication
    with a person who he believed to be under the age of 16 years for the purpose
    of facilitating an offence under s. 152 (invitation to sexual touching)
    contrary to s. 172.1(2) (child luring under 16).

Count 3: Communicating for the purpose of
    obtaining the sexual services of a person under the age of 18 years contrary to
    s. 286.1(2) (communicating to obtain sexual services from a minor).

[29]

Count 2 requires communication via
    telecommunication and the communication in count 3 must be to obtain sexual
    services for consideration. As Leibovich J., put it in
R. v. Faroughi
,
    2020 ONSC 780, [s]ection 286.1(2) seeks to protect against the evils of
    child prostitution, while section 172.1 seeks to protectthe criminal use of
    the internet and other similar devices to sexually exploit children.

[30]

I am not persuaded there is any basis to
    interfere with the trial judges decision.

(3)

Section 11(b)

[31]

The trial judge dismissed both of the
    appellants applications for a stay pursuant to s. 11(b).

[32]

The appellant acknowledges that the
Jordan
presumptive ceilings do not typically apply to post-verdict delay. However, he
    points out that trial judges can refuse to enter a conviction if they find
    entrapment:
R. v. Mack
, [1988] 2 S.C.R. 903, at p. 972. This, he submits,
    makes entrapment applications unlike other post-trial motions. In entrapment
    applications, the question whether the accused will be convicted remains unresolved.

[33]

I do not accept that entrapment hearings are
    exceptional post-trial proceedings that should be included in the
Jordan
presumptive ceilings. The Supreme Court in
R. v. K.G.K.
,

2020 SCC
    7, 443 D.L.R. (4th) 361, held that the presumptive ceilings established in
Jordan
do not apply to the trial judges deliberation time, and said the ceilings apply
    from the charge to the end of the evidence and argument, and no further: at
    para. 33. The Supreme Court explicitly rejected the possibility that
Jordan
ceilings apply from the charge to the conclusion of post-trial motions:
K.G.K.
,
    at para. 33.

[34]

While the
Jordan
ceilings do not apply, I
    must still consider whether the post-trial delay infringed the appellants
    rights under s. 11(b). The protections afforded by s. 11(b) encompass the time
    up to and including the date when a sentence is imposed:
K.G.K.
, at
    para. 3;
R. v. MacDougall
, [1998] 3 S.C.R. 45, at para. 19.

[35]

In
R. v. Charley
, 2019 ONCA 726, 147 O.R.
    (3d) 497, Doherty J.A. set a presumptive five-month ceiling, subject to the
    same exceptions and principles as the
Jordan
presumptive ceiling, that
    applies to sentencing delay. I do not accept the appellants submission that this
    presumptive five-month ceiling applies to both post-trial motions and
    sentencing. In
Charley
the issue was sentencing delay. The delay was due
    to a Crown application to have the offender declared a dangerous offender. I am
    satisfied the five-month presumptive ceiling was intended to apply to the
    sentencing process alone.

[36]

The time required to deal with post-trial
    motions unrelated to sentencing must be considered separately as it is not
    possible to prescribe a presumptive ceiling for the completion of post-trial
    motions. Obviously, the number and complexity of post-trial motions will vary
    with each case. The time taken for post-trial motions should not be
    unreasonable considering the number and complexity of the motions in the
    specific circumstances of the particular case.

[37]

The time taken for post-trial motions in this
    case was not unreasonable. The verdict was rendered on June 13, 2017 and the
    final ruling on the post-trial motions was delivered on September 4, 2018,
    approximately 14 months and 27 days later. From November 8, 2017 to December 6,
    2017, the parties were dealing with a Crown application related to mandatory
    minimum sentences, which should be included in the time taken for sentencing.
    Defence counsel agreed that he was responsible for the delay from May 1, 2018
    to August 28, 2018, which results in a deduction of 4 months. This leaves 9 months
    and 23 days that were taken to deal with 8 post-trial motions.

[38]

The trial judge found that the post-verdict
    applications were necessary and had been brought and heard in an efficient way.
    He found that the overall time for the trial, including the post-verdict
    applications, was reasonable in all the circumstances. I agree with his
    assessment.

[39]

It remains to consider the sentencing delay
    subject to the
Charley
presumptive ceiling. The sentencing process began
    on November 8, 2017, when the Crown made an application related to mandatory
    minimum sentences and ended on October 29, 2018, when a sentence was imposed.
    The total length of this period is 11 months and 22 days.

[40]

On February 20, 2018, the appellant asked for an
    adjournment because of a late disclosure made by the Crown a week prior, which
    the appellant believed could impact the entrapment decision. Sentencing was
    adjourned to May 1, 2018. This period of delay amounts to 2 months and 12 days.
    The respondent submits that this should be counted as a discrete exceptional
    circumstance that should be deducted from the sentencing delay.

[41]

Defence counsel sought a further adjournment
    from May 1, 2018, to August 28, 2018 due to another trial he was involved with
    and agrees this period should not be counted. This amounts to a deduction of 3
    months and 28 days.

[42]

The appellant asked for another adjournment from
    September 5 to 28 to get his affairs in order. These three weeks and two days should
    be deducted.

[43]

Accounting for the periods that should be
    deducted, there was 4 months and 20 days of sentencing delay, which falls below
    the
Charley
presumptive ceiling.

[44]

In the above calculations a month was treated as
    30.5 days.

[45]

I conclude there was no breach of the
    appellants s. 11(b) rights.

(4)

Entrapment

[46]

Counsel for the respondent in
Ramelson
adopted the submissions made by this appellant's counsel on the issue of
    entrapment. The comprehensive reasons in
Ramelson
included the analysis
    and rejection of the two entrapment grounds in this appeal. For the reasons set
    out in
Ramelson
, I would reject this appellants argument that he was entrapped.

(5)

Sentence

[47]

The trial judge imposed a sentence of 12 months
    imprisonment on count 1 (child luring under 18) and a concurrent term of 6
    months imprisonment on count 3 (communicating to obtain sexual services from a
    minor). The problem with this is that the trial judge had stayed count 1 based
    on the
Kienapple
principle. In his
Kienapple
ruling he said, Count
    1 is stayed. The Information reflects this as it is marked Ct.1 Stayed
    Kienapple. He then failed to sentence the appellant on count 2 (child luring
    under 16), a charge that had not been stayed and for which the appellant had
    been found guilty.

[48]

The Crown submits not much turns on the fact the
    trial judge sentenced the appellant on count 1 (child luring under 18) instead
    of count 2 (child luring under 16), as the judges analysis on sentencing and
    the punishment he imposed would have been the same for either count 1 or count
    2.

[49]

I disagree. The mistake in this case is not a
    mere clerical or administrative error. The mistake is not simply referring to
    the numeral 1 rather than the numeral 2. The trial judge left no doubt he
    was purporting to exercise jurisdiction to sentence the appellant on count 1
    instead of count 2. In his sentencing reasons he stated that the respondent was
    convicted of Communicating via telecommunication to facilitate a s. 286.1(2)
    offence (child prostitution)  s. 172.1(2), but the trial judge had stayed
    that charge. He then added that a further count of Invitation to Sexual
    Touching s. 152 was stayed pursuant to the rule in
R v Kienapple
, but
    that is not the charge that he had stayed. When he imposed the sentence, the
    trial judge referred expressly to count 1 by stating, On the 172.1(2) charge
    of communicating via telecommunication to facilitate a s. 286.1(2) offence, Mr.
    Haniffa is sentenced to 12 months imprisonment.

[50]

The differences between these two offences could
    well have affected the sentence imposed. Count 1 criminalizes communicating
    with a person the accused believed to be under 18 years of age by
    telecommunication for the purpose of facilitating the offence of obtaining
    sexual services from a person under 18 of age for consideration. Count 2
    criminalizes communicating with a person the accused believed to be under 16
    for the purpose of facilitating an invitation to sexual touching.

[51]

The trial judges imposition of 12 months
    imprisonment on count 1 is without effect because further proceedings on count
    1 had been stayed earlier. The question arises whether this court should impose
    a sentence on count 2, the charge the appellant should have been sentenced on.

[52]

In sentencing the appellant on count 2, the
    constitutionality of the mandatory one-year minimum sentence stipulated in s.
    172.1(2) would necessarily arise because several Superior Court and Ontario
    Court decisions have held that the mandatory minimum one-year sentence is
    unconstitutional:
Faroughi
;
R. v. C.D.R.
, 2020 ONSC 645;
R. v.
    Saffari
, 2019 ONCJ 861;
R. v. Alekozai
, [2020] O.J. No. 1162. Furthermore,
    sentences of less than one year of imprisonment have been imposed in a number
    of Project Raphael cases:
Faroughi
,
Saffari
,
Alekozai
. In
    these grouped appeals Mr. Jaffer was sentenced to six months imprisonment, and
    Mr. Dare was sentenced to three months imprisonment to be served
    intermittently. Project Raphael cases may be distinguished from the fact
    situations in
R. v. Morrison
, 2019 SCC 15, [2019] 2 S.C.R. 3, and
R.
    v. Ghotra
, 2020 ONCA 373, for example, where the offender has taken the
    initiative in seeking sexual relations with an underage person.

[53]

The parties did not advance argument before us
    on the question of the constitutionality of the mandatory one-year minimum
    sentence stipulated in s. 172.1(2). Consequently, it would be inappropriate for
    the court to exercise its discretion to sentence the appellant on count 2.

[54]

I recognize the appellant was sentenced on
    October 29, 2018, before the onset of the COVID-19 pandemic. I take judicial notice
    that the pandemic is in its third wave, that younger healthy persons are succumbing,
    and that the provincial government has taken strong measures to reduce close
    human contact. That said, I am not persuaded this court should intervene in a
    fit sentence without any evidence about the appellants particular
    circumstances and the current conditions within correctional facilities. These
    are considerations that can be taken into account when this matter is remitted
    to the trial judge for sentencing on count 2.

D.

Conclusion

[55]

I would dismiss the appellants appeal of
    conviction, the ruling on multiple convictions, the entrapment application, and
    the s. 11(b) applications. I would allow his appeal of sentence, set aside the
    sentence imposed on count 1, and remit his sentence on count 2 to the trial
    judge.

Released: May 17, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Tulloch J.A.

I agree. David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hakimzadah, 2021 ONCA 389

DATE: 20210603

DOCKET: C68524

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammed Hakimzadah

Appellant

Craig Zeeh, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: May
    27, 2021 by video conference

On appeal from the sentence imposed on April
    27, 2020 by Justice Robert F. Goldstein of the Superior Court of
    Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of five counts of
    counselling the commission of an offence that was not committed; one count of counselling
    the murder of his wife; one count of counselling the transfer of a firearm; one
    count of counselling trafficking in cocaine; one count of counselling commission
    of public mischief; and one count of counselling the murder of his wifes
    family law lawyer.

[2]

The appellant was sentenced to a total of nine
    years imprisonment less six years credit for pre-sentence custody, leaving a
    remaining sentence of three years imprisonment. He seeks leave to appeal
    sentence.

[3]

We reject the appellants submission that the
    sentencing judge failed to sufficiently alert counsel of his intention to
    consider imposing a longer sentence than the seven-and-a-half-year sentence proposed
    by the Crown or that he failed to adequately explain his reasons for imposing a
    nine-year sentence.

[4]

The sentencing judge alerted counsel that he was
    considering imposing a sentence higher than that sought by the Crown. In doing
    so, the sentencing judge indicated his concern that this was not simply a case of
    counselling murder in a domestic context. Rather, it was a case in which the
    appellant also wanted his wifes lawyer to be murdered on University Avenue in
    front of the courthouse. In our view, that was sufficient notice that the
    sentencing judge considered both the range and the specific sentence proposed
    inadequate.

[5]

As for his explanation for exceeding the
    sentence suggested, the sentencing judge explicitly rejected any suggestion by
    counsel that the appellant had abandoned his plans to arrange that two murders
    be committed.

[6]

Moreover, the sentencing judge concluded,
    correctly in our view, that the range identified by counsel did not account for
    the significantly aggravating feature of counselling not only the murder of his
    wife but also the murder of his wifes counsel.

[7]

We also reject the appellants submission that the
    sentence imposed was demonstrably unfit, being outside a well-established three-to-eight-year
    range of sentences for counselling murder in the domestic context, or that it
    failed to account for the fact that the appellant was a first offender.

[8]

As we have said, these offences put multiple persons
    at risk, including a justice system participant. They were egregious offences
    that merited the sentence imposed.

[9]

Leave to appeal sentence is granted but the
    sentence appeal dismissed.

Janet
    Simmons J.A.

E.E.
    Gillese J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hayman, 2021 ONCA 242

DATE: 20210414

DOCKET: C67731

Fairburn A.C.J.O., Doherty and
    Sossin JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Joyce Rita Hayman

Appellant

James Lockyer, for the appellant

Elise Nakelsky, for the respondent

Heard and released orally: April 12, 2021 by
    video conference

On
    appeal from the conviction entered by Justice John Fraser Hamilton of the Ontario
    Court of Justice (General Division) on June 5, 1998.

REASONS FOR DECISION

Overview

[1]

As set out below, the appellant has suffered an
    egregious miscarriage of justice. Where the ultimate responsibility lies is not
    a question before this court. Where the harm has fallen is crystal clear. The
    appellant is truly the victim of a failed criminal process.

[2]

The appellant faced a four-count indictment. On
    June 5, 1998, she was convicted after a judge alone trial of administering a
    noxious substance to her own five-year-old child, with the intent to endanger his
    life. The noxious substance was said to be cocaine. She was also found guilty
    of criminal negligence, despite a finding that bodily harm was not established.
    A stay of proceedings was later entered on that count. She was acquitted on the
    other two counts.
[1]

[3]

On July 22, 1998, the appellant was sentenced to
    the maximum reformatory term of two years less a day.

[4]

The trial judges findings were rooted in
    evidence relating to the now discredited work of the Motherisk Drug Testing
    Laboratory (MDTL).

[5]

While the appellant originally appealed from
    conviction and sentence, the conviction appeal was later abandoned. On April
    22, 1999, the sentence appeal was granted on the basis of errors in principle
    having been made. The sentence was reduced to one of time served, the
    equivalent of about nine months, and three years of probation:
R. v. Hayman
(1999), 135 C.C.C. (3d) 338 (Ont. C.A.), at paras. 25-26.

[6]

In his reasons for reducing the sentence,
    Rosenberg J.A. noted, at para. 2, that the offence was difficult to comprehend,
    in part because it appeared that the appellant bore
[
no
]
ill will towards
    her child. These were prescient words.

[7]

On November 28, 2019, this court made an order
    on consent of the parties that the appellant be permitted to reopen her
    conviction appeal. Almost 23 years following her conviction, this is her
    conviction appeal. She asks that both the conviction and stay be set aside and
    acquittals entered. The Crown joins the appellant in her request for this
    relief.

[8]

These are our reasons for granting that relief.

History of this Matter

[9]

It would be a serious understatement to suggest
    that the appellant has had a tragic life.

[10]

She was born into a family that could not
    properly care for her. Her childhood was marked by serious emotional and
    physical neglect, as well as physical violence.

[11]

By her early teen years, the appellant was
    abusing drugs and alcohol. The appellants mother eventually gave her over to
    the Childrens Aid Society (CAS), and while the appellant was living in a
    group home, her brother died in a house fire. She started living with a man in
    an abusive relationship before she even reached adulthood. This resulted in her
    wardship with the CAS being terminated.

[12]

The appellants addictions grew in size. By the
    time she was 23 years of age, she was bringing her first child into the world,
    while at the same time facing the challenges of being a heavy user of crack
    cocaine.

[13]

The appellant was a single mother, grappling
    with incredible addiction issues and raising a son who was presenting
    significant behavioural challenges, including aggression toward his mother. To
    confront those behavioural issues, the appellant started purchasing the drug
    Ritalin from an acquaintance. She had learned of the benefits of this drug in
    dealing with behavioural issues by watching a television program.

[14]

The situation came to the attention of the
    authorities when, one weekend, the appellants child was taken to the hospital
    by a babysitter as a result of a suspected overdose of Ritalin. While he was
    fine, this hospital interaction eventually led to the appellant and child
    coming into contact with the Hospital for Sick Children (HSC). The appellant
    did not hide from the medical professionals how she had obtained the Ritalin or
    the amounts she had been administering to her child. While the doctor she
    consulted at HSC determined that the administered amounts were too high, the
    doctor thought a prescription was necessary and simply reduced the dosage. That
    doctor was of the view that the appellant was sincerely  seeking assistance
    for her son and she was sincerely wish
[
ing
]
to follow
    through on
[
the hospitals
]
recommendations.

[15]

At the appellant and childs next HSC visit on
    June 5, 1996, a urine sample was taken from the child. It was found to contain
    cocaine metabolites. No evidence was led at trial about the nature of the urine
    screening process or its reliability.

[16]

As a result of that urine test, though, the
    child was apprehended by the CAS and placed into a foster home, and a police
    investigation ensued. During that time, the appellant was permitted
    unsupervised visits with the child once a week. According to CAS records, she
    was very consistent with her visits and the child seemed happy and content
    to see his mother. This is consistent with how the appellant and childs
    relationship was described by others, including the childs biological father. The
    biological father said that the appellant was a very, very good mother to the
    child, and a babysitter described her as a very loving and caring mother.

[17]

Two samples of the childs hair were taken while
    he was in foster care. Those samples were sent to the MDTL. At that time, Dr.
    Gideon Koren was the director of the laboratory and Julia Klein was the laboratory
    manager. They were qualified to testify as experts at trial. Neither explained
    the methodology they used when examining the childs hair.

[18]

Ms. Klein was qualified as an expert in
    chemistry and hair analysis. She testified that the childs hair contained the
    presence of cocaine and its metabolites in amounts that are high enough to kill
    a child and that are
[
n
]
ormally what one would see in adult
    chronic users of cocaine. In her view, it was unlikely that one single
    exposure would give such a level in the hair of a child and it was not [from]
    external deposition but [from] the consumption of cocaine. She reached the
    scientific conclusion that the child had been given cocaine, used cocaine.

[19]

As for Dr. Koren, qualified as an expert
    pediatrician and toxicologist, he maintained that the level of cocaine found in
    the childs hair made it much more likely that cocaine was incorporated in the
    hair through the bloodstream that nourished the hair and much less likely from
    the environment.

[20]

The appellant testified. As she had from the
    outset and to this very day, she denied administering cocaine to her child.
    While she did not shy away from acknowledging her addiction issues, she
    explained the significant precautions she took to ensure that her child was not
    exposed to her smoking crack cocaine, including the safe storage location she
    used for the drugs, the precautions she took when she would consume the drugs,
    and the steps she took to ensure that her child was not exposed to the smoke
    from the drugs.

[21]

The trial judge delivered brief oral reasons for
    judgment. He pointed to two pieces of evidence in support of his conclusion
    that the appellant had administered crack cocaine to her child: the urine
    analysis; and the expert evidence of Dr. Koren and Ms. Klein at the MDTL.

[22]

While there was some evidence of cocaine found
    in the childs urine, as detected at HSC, the Crown on appeal does not dispute
    the lack of probity attaching to that evidence, particularly because there was
    no evidence at trial as to the nature of the urine screening process or its
    reliability.

[23]

This left the MDTL evidence, about which the
    trial judge said this:

[T]he cocaine metabolite was found in [the
    childs] hair. Dr. Koren and Ms. Klein, both experts in detecting cocaine from
    hair, amongst other things, said that the reading  was not through a one time
    use but more likely obtained from sustained use over a 3 month period; that is
    the cocaine that was found in the hair samples that they tested.  [The reading
    they testified to] indicates the use [of cocaine] is a chronic use of at least
    3 times a week for a period of 3 months. This reading was not obtained from accidental
    exposure. The amount found in the hair indicates numerous usages to obtain this
    reading.

[24]

Ultimately, the trial judge concluded, based
    upon that expert evidence, that the appellant must have administered the
    drug to [her child].

[25]

Eventually, the child was adopted by another
    family. The appellant and her child have had one contact since 1998: a
    telephone call in 2018.

[26]

In 2003, about four years after she was released
    from prison, the appellant gave birth to her second child. He was immediately
    apprehended by the CAS at the hospital and adopted by another family. The
    appellant has never had contact with her second child.

[27]

In an affidavit filed before this court, the
    appellant says the following:

From my childhood on, I have not had a good
    life and I am not proud of my drug addictions. If I can get rid of this unjust
    conviction, I will be able to hold my head high for the first time in a long
    time. I never gave cocaine to [my child] and I never left  any in a place
    where he could access it.

[28]

The appellant has no criminal record other than
    the conviction under appeal. She has maintained her innocence from the outset.

The Fresh Evidence

[29]

The parties come to this court on a united
    front. They rely upon fresh evidence that we need not explore in detail. The
    fresh evidence rests most heavily on two reports: The Honourable Susan E. Lang,
Report of the Motherisk Hair Analysis Independent Review
(Toronto:
    Ministry of the Attorney General, 2015); and The Honourable Judith C. Beaman,
Harmful
    Impacts: The Reliance on Hair Testing in Child Protection  Report of the
    Motherisk Commission
(Toronto: Ministry of the Attorney General, 2018). These
    are highly probative and critically important pieces of work. There is no
    dispute that the conclusions reached in both reports, as they pertain to the
    MDTL, are unassailable. Most importantly for this appeal, the reports reveal
    that the work done at the MDTL was seriously flawed and that the testing was
    inadequate and unreliable for use in child protection and criminal proceedings:
Report of the Motherisk Hair Analysis Independent Review
, at p. 4.

[30]

Being highly cogent, admissible evidence that
    was not available at the time of the trial, the two reports easily meet the
    criteria for the admission of fresh evidence:
Truscott (Re)
, 2007 ONCA
    575, 225 C.C.C. (3d) 321, at para. 92.

[31]

Crown counsel correctly acknowledges that the
    record in this case reveals little information as to the details of the testing
    completed on the childs hair and that there was no evidence at trial about any
    confirmatory testing having been done, the absence of which leads to a
    reasonable basis upon which to question the validity of the conviction due to
    the courts reliance on the
[MDTL]
evidence adduced at trial. We agree.

[32]

Without the MDTL evidence, the appellant would
    not have been found guilty. We admit the fresh evidence. We set aside the
    conviction for administering cocaine and enter an acquittal on that count. We
    set aside the stay on the criminal negligence cause bodily harm count as, on
    the trial judges own findings, the appellant was entitled to an acquittal on
    that count at that time.

Publication
    Ban

[33]

This leaves one matter left to be addressed: the
    publication ban.

[34]

On November 28, 2019, when this court allowed
    the appellant to reopen her conviction appeal, a publication ban was made in
    relation to her name, as well as her sons name. She asks that the publication
    ban on her name be set aside. The Crown takes no objection to this request. In
    our view, it is appropriate to do so.

[35]

There was considerable publicity in and around
    the time of the appellants trial. The appellant was always identified by name
    in the media. Indeed, it is as a result of the still existing, archived
    newspaper articles that a reporter, Rachel Mendleson, brought to the attention
    of counsel in 2018 this matter and expressed concern over the appellants case.
    Given the date of conviction, it would not have come to the attention of the
    earlier inquiries.

[36]

In light of the wrongful nature of the conviction
    in this case, resting on what can only be described as faulty science, the
    least that can be done is to allow the appellant the dignity to have this
    matter now corrected in the media should they choose to report on it.
    Therefore, the publication ban on the appellants name is set aside. To be
    clear, the publication ban remains in respect of her sons name.

Conclusion

[37]

Correcting this matter has taken the effort of a
    number of people, all of whom we acknowledge for their dedication to justice.
    In particular, we recognize Rachel Mendleson of the Toronto Star for
    identifying this case and bringing it to the attention of counsel, as well as Mr.
    Lockyer and Ms. Nakelsky for their diligence in pursuing the matter.

[38]

The appellant has faced a life of challenges. At
    every turn, she needed help, and at every turn she did not receive it. Despite
    the fact that she was a young, single mother who struggled with a history of
    mistreatment, poverty, and serious addictions, the record reveals strong
    attempts on her part to deal with what she faced. This was true at the time
    that she was raising her young child and it is true today. Indeed, the fresh
    evidence indicates that the appellant stopped consuming crack cocaine several
    years ago.

[39]

We cannot right everything for this now 53-year-old
    appellant. In addition to many other life challenges, she lost her children,
    she served time in prison, and she has carried the burden of a very serious
    criminal conviction for almost a quarter of a century.

[40]

What we can do today is to bring a conclusion to
    the criminal justice systems impact on her life. She deserves to, as she says,
    hold her head high for the first time in a long time. We express our sincere
    hope that today will constitute one step toward that end.

Fairburn
    A.C.J.O.

Doherty
    J.A.

L.
    Sossin J.A.

[1]

The appellant had been charged with criminal negligence
    causing bodily harm through the administration of cocaine. The trial judge
    found no evidence of bodily harm. Therefore, he found the appellant not guilty
    as charged, but guilty of what he described as the lesser and included offence
    of criminal negligence
simpliciter
.

By the time of sentencing,
    the parties agreed that this finding had been made in error because criminal
    negligence
simpliciter
is not an offence known to law. While the trial
    judge accepted that the erroneous finding had been made, he rejected the
    defence request to find the appellant not guilty on that count, instead
    choosing to stay the proceedings.

The other two counts related to allegations pertaining
    to the administration of the drug Ritalin. The appellant was acquitted on these
    counts.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Herdman, 2021 ONCA 294

DATE: 20210504

DOCKET: C68137

Doherty, van Rensburg and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor Jesse Herdman

Appellant

Cara Barbisan, for the appellant

Michael Dunn, for the respondent

Heard: April 29, 2021 by video conference

On appeal from the conviction entered on June 17, 2019,
    and the sentence imposed on November 29, 2019, by Justice David L. Edwards of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

This appeal was dismissed with reasons to follow. These are our reasons.

[2]

The appellant appeals his conviction for three counts of the possession
    of stolen property, and one count each of possession of stolen property under
    $5,000, possession of cocaine for the purpose of trafficking, and failure to
    comply with a recognizance. He does not appeal his convictions for certain
    other offences. If successful in the appeal, he seeks to reduce the global
    sentence he received and is currently serving.

[3]

There is only one ground of appeal. The appellant submits that the trial
    judge erred in dismissing his challenge under s. 8 of the
Charter
, to
    the validity of a telewarrant issued under the
Criminal Code
, which
    led to the seizure of stolen property and drugs from his residence.

[4]

The appellant contends that, contrary to the conclusion of the trial
    judge, there were no reasonable grounds to believe that the power tools listed
    in the Information to Obtain (ITO) would be found at the place of the
    proposed search because the ITO was based on a tip from a confidential
    informant (CI) that did not meet the
Debot
criteria (
R. v. Debot
,
    [1989] 2 S.C.R. 1140).

[5]

The investigation of the appellant began when a CI told the police that
    the appellant had stolen an ATV. The CI provided the make and license plate
    number for the ATV, as well as its location (in a parking lot behind an
    apartment building on Cleveland St. in Thorold). The police searched the
    license plate and contacted the registered owner of the ATV, who, after
    checking his barn, told them that his ATV and a number of power tools (which he
    listed) had been stolen. The police attended at the Cleveland St. address where
    they saw the ATV and some of the missing power tools in the parking lot. They
    also observed the appellant drive past them slowly, then speed away. CPIC
    inquiries revealed that the appellant had a significant history of prior
    convictions, and that he was bound by a recognizance with a condition that he
    live either at the Cleveland St. address or another address, and was prohibited
    from driving. The property manager at the Cleveland St. address advised that
    the appellant was on the lease for apartment Unit 1 at the Cleveland St.
    address.

[6]

Based on this information, the police applied for a telewarrant pursuant
    to s. 487.1 of the
Criminal Code
to search Unit 1 of the
    Cleveland St. address. The ITO listed the stolen tools as the items to be
    seized in the search and the suspected offences as break and enter and
    possession of stolen property.

[7]

Upon execution of the warrant, the police seized 60.6 grams of cocaine,
    21 oxycodone pills, and the remainder of the missing power tools from Unit 1. A
    subsequent search warrant was obtained and executed to search the appellants
    cell phone.

[8]

The question for the trial judge, in considering the appellants
Charter
application, was not whether he would have issued the telewarrant, but
    whether it was open to the issuing justice to have done so. The question was
    whether the ITO, in its redacted form, disclosed reasonable grounds to believe
    that there was evidence respecting the commission of an offence at the location
    to be searched:
R. v. Herta
, 2018 ONCA 927, 143 O.R. (3d) 721, at
    para. 20. This court will not interfere with a decision made in a
Garofoli
application
    absent an error in law, a misapprehension of the evidence or a failure to
    consider relevant evidence:
R. v. Grant
(1999), 132 C.C.C. (3d) 531
    (Ont. C.A.), at para. 18, leave to appeal refused, [1999] S.C.C.A. No. 168.
    There is no such error here. Essentially, the appellant invites this court on
    appeal to reweigh the
Debot
factors.

[9]

The trial judge properly found that the CI rated low in terms of
    credibility: confidential information about the CI had been redacted from the
    ITO, so that the only available information was that the CI may or may not
    have a criminal record and that, while the CI was believed to be truthful, the
    police had never before acted upon information that the CI had provided. The
    trial judge went on to consider whether the tip was compelling and
    corroborated. He reminded himself that the totality of the circumstances must
    meet the standard of reasonableness, and that strengths in one area may
    compensate for weaknesses in another:
Debot
, at p. 1168;
Herta
,
    at para. 34.

[10]

Contrary
    to the appellants argument, there was no error in the trial judges conclusion
    that the information provided by the CI was highly compelling and
    significantly corroborated.

[11]

Whether
    a CIs tip is compelling depends on the quality of the information provided.
    A more detailed tip will be more compelling, as will a tip that is more recent:
Herta
, at para. 42;
R. v. Rocha
, 2012 ONCA 707, 112 O.R. (3d)
    761, at para. 18. In this case, as the trial judge observed, the tip was
    specific regarding the person, item and time; that is, that the appellant
    stole an ATV bearing a particular license plate number, and that the ATV could
    be found at the rear of the Cleveland St. address.

[12]

As
    for corroboration, the trial judge identified the investigative steps that were
    taken by the police that confirmed the currency of the information provided by
    the CI, that the specific ATV identified by the CI had in fact been stolen and
    that it was located where the CI said it was, in a parking lot at the Cleveland
    St. address.

[13]

In
    any event, the issue was whether reasonable grounds existed for the issuance of
    the search warrant. There was no question that the police had reasonable
    grounds to believe that an offence had been committed as the owner of the ATV
    confirmed that the ATV as well as various tools had been stolen. Whether there
    were reasonable grounds to believe that evidence would be found at Unit 1 of the
    Cleveland St. address depended on the entirety of the ITO, which contained not
    only the compelling and corroborated information from the CI, but also the
    other information provided by the police investigation: the fact that some of
    the tools were located in the same parking lot as the stolen ATV, confirmation
    that the appellant lived in a particular unit at that address, information
    about the appellants criminal record, including for possession of stolen
    property, and the appellant speeding away after he was seen by the police.
    Based on all the circumstances disclosed in the ITO, it was reasonable to
    believe that evidence of the offence, such as the other stolen tools, would be
    found in the appellants unit.

[14]

The
    appellant demonstrated no error in the trial judges determination of his
Charter
application. For these reasons the appeal was dismissed.

Doherty J.A.

K. van Rensburg J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Howley, 2021 ONCA 386

DATE: 20210607

DOCKET: C64789

Strathy C.J.O., Rouleau and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Todd Howley

Appellant

Delmar Doucette, Angela Ruffo and Zahra Shariff, for the
    appellant

Gregory Tweney and Rebecca Schwartz, for the respondent

Heard: November 25, 2020 by video
    conference

On appeal from the conviction entered
    on April 9, 2016 by Justice R. Cary Boswell of the Superior Court of Justice,
    sitting with a jury.

By the Court
:

OVERVIEW

[1]

The appellant appeals his conviction for first-degree murder. He
    challenges the trial judges admission of certain internet searches carried out
    on the appellants computer, as well as the appropriateness of the Crowns
    closing submissions before the jury. He seeks to have the conviction for
    first-degree murder quashed or stayed and a conviction for second-degree murder
    substituted. In the alternative, he asks that a new trial be ordered. For the
    reasons that follow, we dismiss the appeal.

FACTS

[2]

The appellant and Paul Maasland were business partners. By mid-June
    2010, Mr. Maasland had advanced the appellant over $100,000 in business loans
    relating to a commercial process for using algae to convert carbon dioxide to
    clean energy. The appellant, however, had spent much of these funds on his own
    personal expenses.

[3]

Two tests of the technology being developed by the appellant had produced
    inconclusive results and it was agreed that a third and final test was needed.
    The appellant and Mr. Maasland arranged to conduct the test at the appellants
    Oakville warehouse on Sunday, August 29, 2010.

[4]

According to video evidence, Mr. Maasland left his Toronto apartment for
    the scheduled meeting at the appellants warehouse just after 9:00 a.m. on
    August 29. He was expected back by 12:30 p.m. for a prearranged lunch date with
    his mother, but he never returned.

[5]

Early the next morning, Mr. Maaslands body was found at the end of a
    boat launch in Bracebridge. He was wearing the same clothes he had been wearing
    when he left for his meeting with the appellant. His head and feet were covered
    in garbage bags and a white nylon rope was tied around his chest. He had
    obviously been badly beaten. The post-mortem examination revealed extensive
    lacerations, fractures and bruising all over his body. The pathologist
    concluded his death was caused by blunt force injuries.

[6]

Just a week after the murder, police in Bracebridge received an
    anonymous letter from someone claiming to have knowledge of the circumstances
    leading to Mr. Maaslands death. The letter claimed that Mr. Maasland was
    murdered in Bracebridge by two unidentified women who knew Mr. Maasland and his
    spouse through their interest in Boxer dogs. The letter contained details that
    only the killer could know. A subsequent forensic examination of the
    appellants computer revealed that this letter had been drafted on September 1,
    2010, just two days after the murder.

[7]

At trial, the Crown tendered considerable circumstantial evidence
    pointing to the appellant as the murderer. This evidence included an extensive
    compilation of surveillance video showing the movement of people and vehicles
    around the appellants warehouse on the day of the murder, forensic evidence
    including DNA analysis connecting the appellant to the crime scene and details
    concerning the appellants internet activity suggesting that the murder had
    been planned.

[8]

The trial lasted six weeks. The Crown called nearly 40 witnesses,
    including numerous experts, and filed 158 exhibits. The appellant called no
    evidence. After a day of deliberations, the jury found the appellant guilty of
    first-degree murder.

ISSUES

[9]

On appeal, the appellant concedes that the Crown led a compelling case
    identifying him as the killer. He maintains, however, that the evidence of
    planning and deliberation was weak. He advances two grounds of appeal as
    follows:

1.

The trial judge erred in admitting the evidence about the appellants
    internet searches regarding nail guns made several weeks before the murder;
    and

2.

The trial judge erred in failing to declare a mistrial after the Crowns
    closing address, in which she referred to certain after-the-fact conduct
    evidence the trial judge had ruled was irrelevant to the issue of planning and
    deliberation. Alternatively, the Crowns submissions constituted an abuse of
    process requiring a stay of proceedings.

(1)

The admissibility of the nail gun internet searches

[10]

An
    expert on computer forensics and data recovery examined two computers seized
    from the appellants warehouse and residence. He discovered that the following
    internet browsing activity had been conducted in the month before the murder:

·

Internet searches conducted on August 2, 2010 relating to nail guns;

·

Internet searches conducted on August 8 and 19, 2010 relating to Mr. Maasland,
    his spouse, London and Boxer dogs;

·

Internet searches conducted on August 26, 2010 using Google maps
    to access locations in Barrie, Norland and Bracebridge;

·

Internet searches conducted on August 28, 2020 relating to
    transportation in and around Bracebridge.

[11]

The
    August 2 internet activity relating to nail guns consisted of the following:

·

Google query for Nail Gun Massacre at 12:04:19 p.m.

·

Wikipedia article titled Nail Gun Massacre accessed at 12:04:45
    p.m.;

·

Google query for nail gun safety at 12:06:34 p.m.;

·

Wikipedia article for nail gun accessed at 12:06:45 p.m.;

·

Google query for nail gun operation at 12:22:48 p.m.;

·

Google query for
nail gun modified at 12:23:11
    p.m.;

·

Second page of search results for nail gun modified at 12:24:11
    p.m.

[12]

In
    a pretrial motion, the appellant challenged the admissibility of the nail gun
    search evidence on the basis that its probative value was outweighed by its
    prejudicial effect. He argued that the searches had no probative value absent
    improper speculation because Mr. Maasland was not killed with a nail gun. In
    particular, the appellant submitted that the Nail Gun Massacre query and
    article carried a high potential for moral prejudice. The Crown took the
    position that the searches provided early evidence that the appellant was
    conducting research on how to kill Mr. Maasland. The trial judge rejected the
    appellants arguments and admitted the evidence.

[13]

On
    appeal, the appellant renews his complaint about the nail gun searches but does
    so on a somewhat different basis. He argues that the evidence amounted to
    needless cumulative evidence and that the trial judge erred in failing to take
    into account the fact that its probative value was diminished by the existence
    of other extensive evidence of planning and deliberation. In the appellants
    submission, the prejudice remained substantial.

[14]

In
    balancing the probative value of evidence against its prejudicial effect, courts
    have come to recognize two well established sources of prejudice: moral
    prejudice and reasoning prejudice. As the Supreme Court explained in
R. v.
    Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, moral prejudice refers to the risk
    associated with evidence that could paint the accused with the stigma of bad
    personhood and cause the jury to assess the accuseds guilt or innocence on
    the basis of general propensity or disposition: at paras. 42, 100, and 139. By
    contrast, reasoning prejudice refers to the risk that evidence will distract
    the jury from its proper focus on the facts as charged:
Handy
, at paras.
    100, 144 and 146. See also
R. v. Lo
, 2020 ONCA 622, 393 C.C.C. (3d) 543,
    at paras. 111-116.

[15]

Needless
    cumulative evidence carries a risk of both moral prejudice and reasoning
    prejudice. As this court explained in
R. v. Candir
, 2009 ONCA 915, 250
    C.C.C. (3d) 139, at para. 60, leave to appeal refused [2012] S.C.C.A No. 8:

Th[e] forensic piling on of evidence by the acre unnecessarily
    lengthens trials, diffuses their focus and diverts the attention of the trier
    of fact. Cumulative evidence, whether testimony, exhibits or both, often
    occupies a borderland around the periphery of the case, adding nothing to the
    contested issues, preferring instead to suffocate the trier of fact with the
    uncontroversial or marginal.

[16]

Beyond the concerns for trial efficiency raised in
Candir
,
    a trial judges discretion to exclude cumulative evidence may also serve to
    prevent the prejudicial effect which the sheer volume and repetition of
    [certain] evidence would have on the jury:
R. v. Parsons
(1996)
,

146 Nfld. &
    P.E.I.R 210 (Nfld C.A.), at para. 42
. Thus, for example, once a
    fact has been admitted, a trial judge has discretion to exclude further evidence
    that proves the same fact by more prejudicial means:
R. v. Foreman
(2002), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 29, leave to appeal refused
    [2003] S.C.C.A. No. 199.

[17]

However, evidence is
    not prejudicial merely because it increases the chances of conviction:
R. v.
    McMorris
, 2020 ONCA 844, at para. 124. The Crown will not necessarily be
    piling on by building a strong case. In deciding whether or not to exclude
    cumulative evidence, the question is not whether the accused could be convicted
    with less, but rather whether the prejudicial effect of additional evidence
    outweighs its probative value, keeping in mind that probative value may
    diminish with repetition. As with any such balancing of probative value and
    prejudicial effect,
the trial judges determination is entitled
    to a high degree of deference on appeal:
R. v. Araya
, 2015 SCC 11,
    [2015] 1 S.C.R. 581.

[18]

In
    this case, the appellant argues that the moral prejudice associated with the
    internet searches flows from the fact that a search for Nail Gun Massacre was
    highly inflammatory, evoking images of mass killing and extraordinary violence.
    This would suggest that the person carrying out the search had a propensity for
    violence. It would follow that the appellant was a bad person with a violent
    disposition, independent of any evidence in relation to the murder. The jury
    might use that evidence in improper propensity reasoning.

[19]

The
    appellant also submits that there was reasoning prejudice not known to the
    trial judge at the point when he made his ruling. The ruling had been made
    before all of the evidence had been heard. In cross-examination at trial, the
    expert conceded that he could not tell whether the queries had been typed by
    the user or had been auto-populated when the user began to type a different query.
    This meant that the jury would be required to speculate whether the user
    intended to type in Nail Gun Massacre or whether, after typing in nail gun
    the search engine auto-populated nail gun massacre as an option to be
    searched, which the user clicked on out of curiosity, leading him to the
    Wikipedia article about the movie Nail Gun Massacre.

[20]

In
    the appellants submission, the trial judge failed to measure the probative
    value of the evidence, as attenuated by the already substantial evidence of
    planning and deliberation adduced at trial, against the substantial moral and
    reasoning prejudice, including the need to speculate as to how the search was
    carried out. Had he done so, the probative versus prejudicial value of the
    evidence considered in light of the other evidence led at trial shifted in
    favour of its exclusion.

[21]

We
    disagree. The trial judge properly admitted the evidence and gave thorough
    reasons for his decision to do so. The trial judge rejected the defence
    submission that there was significant prejudice associated with the use of the
    word massacre. The evidence was not offered to show that the appellant had a
    propensity for violence, and any concerns in this regard could be addressed by
    a jury instruction. The trial judge concluded that, based on the number and
    content of the searches it would be open to the jury to find that the appellant
    was not interested in movies but rather was interested in how a nail gun operates
    and whether it could be modified for use as a weapon. The evidence therefore
    had relevance to planning and deliberation.

[22]

The
    internet searches were relevant because, four weeks before the killing, the
    appellant was investigating nail guns and their use, not because the word
    massacre was either part of his search or was auto-populated by the search
    engine as the defence suggested. Even if the jury were to conclude that the
    appellant himself typed Nail Gun Massacre, we see little likelihood of either
    moral prejudice or reasoning prejudice given the purpose for which the evidence
    was tendered.

[23]

The
    suggestion that the evidence of planning was so strong that the admission of
    the internet search evidence amounted to unfair piling on was not a
    submission made by experienced defence counsel at trial. In our view there is
    little merit in the submission.

[24]

When
    the trial judge made his ruling, he had before him a detailed synopsis
    outlining the anticipated evidence in this case, including the other evidence
    relevant to planning and deliberation. It is apparent from his ruling that he
    considered the probative value of the nail gun searches in the context of the
    anticipated evidence as a whole. He correctly observed that planning and
    deliberation was a very significant issue in this case.

[25]

The
    appellant argues that there is no temporal nexus linking the internet search on
    nail guns to the murder because the search was carried out some 27 days
    before the murder. Again, this was for the trial judge to weigh in reaching his
    decision. It is equally plausible to read the internet search evidence as extending
    the temporal nexus to a point earlier in the genesis of the murder.
    Significantly, the search was carried out some four minutes after the appellant
    had agreed to conduct a third test on the project being funded in part by Mr. Maasland.
    This third test was the reason for Mr. Maaslands attendance at the appellants
    premises on the day he was killed. In addition, it was the first in a series of
    four internet searches led by the Crown that were relevant to different aspects
    of the planned killing of Mr. Maasland. The nail gun searches therefore had significant
    probative value as they expanded the length of the planning and deliberation
    alleged by the Crown and showed a constant period of internet activity in the
    period commencing with the arranged visit and ending with the murder. The mere
    fact that there were additional incriminating internet searches does not constitute
    a needless piling on of the evidence.

[26]

In
    any event, the fact that the same purpose may be achieved by the introduction
    of fewer pieces of evidence does not mean that a judge should exercise the
    discretion to exclude relevant evidence. As explained in
Candir
, at paras.
    81-85: The line between enough and too much is not always easy to fathom even
    with hindsight. In this case, while the Crowns case for planning and
    deliberation was strong, it was not so strong that the evidence of the nail gun
    searches created redundancy or repetition. Indeed, the appellant argues
    elsewhere in his factum that while the Crown had a strong case on identity, it
    did not have such a strong case that he had committed a planned murder.

[27]

As
    a result, we agree with the Crowns submission that the line in this case has not
    been crossed.

(2)

The Crowns closing address
    to the jury

[28]

The
    second ground of appeal relates to the Crowns jury address. In the final hours
    of its three-day closing jury address, the Crown referred to certain elements
    of the appellants after-the-fact conduct as being relevant to the question of
    whether the murder was planned and deliberate. Defence counsel sought a
    mistrial on the basis that the Crowns submission violated the trial judges
    ruling that only a limited portion of the appellants after-the-fact conduct could
    be used as evidence of planning and deliberation. In the alternative, defence
    counsel urged that the judge find that the Crowns disobedience of the court
    ruling on this issue amounted to an abuse of process and that dismissal of the
    jury was the appropriate remedy.

[29]

The
    trial judge rejected both requests, finding that a curative instruction was
    sufficient to address concerns arising from the Crowns remarks. The appellant
    submits that the trial judge erred in dismissing the application for a mistrial
    and rejecting the abuse of process claim.

[30]

To
    properly address this issue, some background is required. After the evidentiary
    portion of the trial had concluded, the trial judge provided the parties with a
    draft of his charge. It contained a section summarizing the appellants after-the-fact
    conduct and its relevance to the issue of identity. It also provided that there
    was another use that some of the after-the-fact evidence could be put to. He
    explained that sometimes evidence as to what a person does after a crime has
    been committed can constitute circumstantial evidence of a pre-existing plan.
    He gave as examples the fact that the body being dumped in Bracebridge could be
    seen as having a connection with the internet searches of locations in
    Bracebridge and Gravenhurst, and taxicabs servicing Bracebridge and
    Gravenhurst.

[31]

The
    draft charge did not contain a limiting instruction prohibiting the jury from
    considering other aspects of the appellants after-the-fact conduct on the
    issue of whether the murder was planned and deliberate.

[32]

At
    a pre-charge conference on March 29, 2016 the Crown expressed concern that the
    charge should not foreclose the jurys consideration of additional examples of
    after-the-fact conduct potentially relevant to the issue of whether the murder
    was planned. The Crown invited the judge to include more examples of
    after-the-fact conduct for the jury to consider as evidence that the murder was
    planned and deliberate. Specifically, the Crown gave six examples as follows:

a.

The suggestion that the appellant drove to Bracebridge shortly after the
    murder and while there used the victims phone to place a call to the
    appellant;

b.

The sand from Muskoka Falls beach deposited inside the victims car;

c.

The staging of the scene where the body was dumped;

d.

The quick return to Oakville after dumping the body;

e.

The content of the anonymous letter blaming the murder on two
    unidentified women connected to Mr. Maasland through Boxer dogs, and which said
    his death occurred at Muskoka Falls beach; and

f.

The complete and thorough clean up of the appellants warehouse.

[33]

Two
    days later on March 31, 2016 the trial judge sent counsel a revised charge. In
    a covering email, he indicated as follows: I believe that my decisions in
    terms of the issues raised during the pre-charge conference will be manifest in
    the revised document. He also said he intended to provide brief written
    reasons for his decision with respect to three areas, one of which was a
    decision he made with respect to post-offence conduct.

[34]

The
    revised charge provided by the trial judge contained one additional example of
    after-the-fact conduct relevant to whether the murder was planned and
    deliberate. He cited the anonymous letter prepared after the murder and its
    connection to the appellants pre-offence internet searches of Paul Maasland, his
    spouse, London and Boxer dogs. The revised charge was not revised to contain a
    limiting instruction prohibiting the jury from considering any other after-the-fact
    conduct when deciding whether the murder was planned and deliberate.

[35]

The
    Crowns closing address commenced the following Monday, April 4, 2016. At the
    end of the first day of the Crown closing, the judge advised counsel that his
    written reasons on the issues raised at the pre-charge conference were
    finished. He said he did not hand them out at the start of the day because he
    did not want to distract anyone. He went on to say I dont think anything in
    them would be an advantage to one person or another  It just explains why I
    did what I did. The judge indicated he was prepared to release the reasons at any
    time but was also willing to hold on to them until after the closings were
    complete. Both sides were content to leave the timing of the distribution of
    the reasons up to the judge.

[36]

The
    reasons were in fact distributed the next morning prior to the commencement of
    the Crowns second day of her closing address to the jury. In his reasons, the
    trial judge referred to the six additional items of after-the-fact conduct that
    the Crown argued were relevant to the issue of planning and deliberation. The
    judge explained that it was a close call but, in the end, he concluded that the
    majority of these items of after-the-fact conduct were equally consistent with
    a plan conceived before or after the killing. He would not, as a result,
    instruct the jury that these additional items of post-offence conduct were capable
    of supporting the assertion that the murder was planned and deliberate.

[37]

In
    the final hour of the third and final day of the Crowns closing address, the
    Crown addressed the jury on the issue of planning and deliberation. The Crown
    started by noting that the judge would instruct them on the law relating to
    both planning and deliberation and the use that could be made of the
    appellants after-the-fact conduct as it might bear on that issue. The jury was
    to take their instructions from the trial judge.

[38]

After
    reviewing the pre-offence conduct relevant to the issue of planning and
    deliberation as well as the circumstances of the killing itself, the Crown
    concluded her closing address with a review of the after-the-fact conduct which
    the Crown argued was relevant to planning and deliberation. Included in this
    part of the closing was a reference to each of the six items of after-the-fact
    conduct the Crown had advanced during the pre-charge conference and which the
    judge had since ruled were not relevant to the issue of planning and
    deliberation.

[39]

As
    soon as the jury was released for the day, defence counsel objected to the
    Crowns reference to the items of after-the-fact conduct the judge had ruled
    were irrelevant to planning and deliberation. The next morning defence counsel filed
    a notice of application seeking a mistrial.

[40]

Both
    Crown counsel apologized to the court and to the appellant for running afoul of
    the courts ruling on the scope of after-the-fact conduct evidence relevant to
    the issue of planning and deliberation. The Crown assured the court that its
    conduct was not intentional but simply the result of not having read the
    courts ruling prior to concluding its closing submissions.

[41]

After
    hearing submissions on the application, the trial judge dismissed the
    appellants application and indicated that he would provide an immediate
    curative instruction to the jury. A draft of it was provided to counsel for
    their review and input. The curative instruction was delivered that same day
    before defence commenced its closing. It clearly spelled out the after-the-fact
    conduct the jury could consider on the issue of planning and deliberation and
    that which it could not.

[42]

In
    addition, the charge delivered the next day contained the same curative
    instruction on after-the-fact conduct. A hard copy of the instructions was provided
    to the jury for their review during deliberations.

[43]

With
    that background we turn to the issue on appeal. The appellant argues that the
    trial judge erred in denying the mistrial application. He argues that Crown
    counsels closing address showed an egregious disregard for an express ruling.
    The closing on the issue of planning and deliberation was passionately and
    strongly made on a central issue in the case. Although the Crown had a
    strong case that the appellant had committed the murder, it did not have such a
    strong case that the murder had been planned.

[44]

In
    the appellants submission, when viewed in context, Crown counsels egregious
    and improper use of after-the-fact conduct could not be corrected. Through an
    impermissible step by step line of argument, the Crown had improperly linked
    and thus embedded in the jurys mind a combination of relevant after-the-fact
    conduct and irrelevant conduct, some of which the Crown counsel said was so
    powerful it could not be overstated.

[45]

The
    appellant suggests that the jury may well have been convinced by the
    painstakingly detailed and powerful climactic conclusion of the Crowns closing
    address where it focused on the issue of planning and deliberation. Any instruction
    telling them to disregard parts of the combined evidence that had convinced
    them was not about to unconvince them. As trial defence counsel stated in her
    application for a mistrial, it was impossible to unring the bell.

[46]

We
    disagree. Counsel acknowledged that the trial judges decision to refuse a
    mistrial and give a corrective instruction is a discretionary one, and that a
    corrective instruction will usually be sufficient to ensure trial fairness:
R.
    v. Rose
, [1998] 3 S.C.R. 262, at para. 126. The declaration of a mistrial
    is a drastic remedy and only appropriate as a measure of last resort in the
    clearest of cases where there is a real danger that trial fairness has been
    compromised:
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79;
R.
    v. Chiasson
, 2009 ONCA 789, at para. 14. Even in cases where the Crowns
    improper closing is not promptly corrected, this court has held that a mistrial
    is not necessarily warranted:
R. v. Mallory
, 2007 ONCA 46, 217 C.C.C.
    (3d) 266, at paras. 342-343.

[47]

It
    is also well established that the trial judges decision not to grant a
    mistrial is entitled to a high degree of deference having particular regard to
    his appreciation of the context and the impact of the submissions on the jury
    and the suitability of a corrective instruction to negate that impact:
Khan
,
    at paras. 79-80;
R. v. Zvolensky
, 2017 ONCA 273, 352 C.C.C. (3d) 217, at
    paras. 185-186, leave to appeal refused, [2017] S.C.C.A. No. 403. When the
    alleged unfairness arises in the context of counsels closing address to the
    jury, a timely and focussed curative instruction will be a sufficient remedy in
    the vast majority of cases. The central question is whether what was said
    deprived the accused of a fair trial:
R. v. Romeo
, [1991] 1 S.C.R. 86,
    at p. 95.

[48]

In
    choosing to provide a curative instruction, the trial judge clearly understood
    and was guided by the relevant principles and his reasons disclosed no error in
    principle nor can they be said to be clearly wrong.

[49]

As
    the Crown points out, the trial judges corrective instruction was timely and
    complete. It was also repeated as part of his charge. Our faith in the jury
    system is grounded in the firm belief that juries will follow the instructions
    they are given by trial judges:
R. v. Corbett
, [1988] 1 S.C.R. 670, at
    p. 695. The judges instructions here were firm and clear, and the jury could
    not have misunderstood them. There is no basis on which to conclude they would
    not follow them.

[50]

The
    appellant further argues that the trial judge erred in failing to find that the
    Crown conduct in this case constituted an abuse of process. In his submission,
    what Crown counsel did, whether intentionally or through willful blindness, falls
    into both categories of abuse of process recognized by the courts, as it was
    both an attack on the appellants right to a fair trial and an attack on the
    integrity of the justice process. Consequently, the appellant submits that a
    stay of proceedings is necessary and appropriate in the circumstances. We would
    not give effect to this submission.

[51]

As
    the Supreme Court stated in
R. v. Babos
, 2014 SCC 16, [2014] 1 S.C.R.
    309, at para. 31, there are generally two categories of abuse of process: cases
    in which state conduct compromises the fairness of an accuseds trial, and
    cases in which state conduct creates no threat to trial fairness but risks
    undermining the integrity of the judicial process. In the most drastic cases,
    an abuse of process may justify a stay of proceedings. In order to apply a
    stay, the court must be satisfied: 1) that the prejudice to the accuseds fair
    trial rights will be manifested, perpetuated, or aggravated through the
    conduct of the trial, or by its outcome; 2) that there is no alternative
    remedy capable of redressing the prejudice; and 3) where there is still
    uncertainty over whether a stay is warranted after steps (1) and (2), the court
    is required to balance the interests in favour of granting a stay, such as
    denouncing misconduct and preserving the integrity of the justice system,
    against the interest that society has in having a final decision on the
    merits:
Babos
, at para. 32, citing
R. v. Regan
, 2002 SCC 12,
    [2002] 1 S.C.R. 297.

[52]

Applying
    this framework, we do not find that the Crowns error in this case rises to the
    level of an abuse of process, much less an abuse of process requiring a stay of
    proceedings.

[53]

It
    is apparent that the Crown made a mistake for which it apologized. The Crown
    who delivered the closing address accepted responsibility for not reviewing the
    judges written reasons on the charge-related issues before concluding her
    address. In the way the matter unfolded, it would not have necessarily been
    apparent to Crown counsel that the judges ruling required immediate attention
    and would impact on what the Crown could say in its closing submissions. In
    fact, the trial judge even offered to delay its release until after the closing
    addresses were complete. In addition, and contrary to the appellants
    submission, we do not believe the changes the trial judge made to the draft
    charge would have clearly alerted the Crown to the importance of reviewing the
    reasons for his ruling or as signalling the trial judges view that five of the
    six elements of post‑offence conduct discussed at the pre-charge
    conference could not be put forward as post-offence conduct relevant to the
    issue of planning and deliberation.

[54]

Even
    if we were to conclude that the trial judges email and draft charge should
    have alerted the Crown to the important changes contained in the trial judges ruling,
    the Crowns error does not provide a basis to find an abuse of process. In his
    ruling on the mistrial application, the trial judge made strong findings of
    fact that this was a one off" mistake at the tail end of a trial in
    which, of the many things that could go wrong  none did. There is no basis
    to interfere with that finding.

[55]

The
    fairness of the trial was not irreparably compromised by the impugned portion of
    the Crowns closing address. As we have explained, the curative instruction
    crafted in response to the mistrial application appropriately delineated which
    elements of the appellants after-the-fact conduct could be considered by the
    jury on the issue of planning and deliberation and which could not. There is no
    basis to conclude that the jury would not have followed the judges
    instructions. Nor was the integrity of the judicial process undermined. This
    was simply one misstep in a lengthy and complex murder trial otherwise
    characterized by exceptional collaboration, professionalism, advocacy and
    courtesy by counsel on both sides of the case. There is no evidence that the
    Crowns submissions were a deliberate attempt to defy the courts ruling or to
    mislead the jury. The Crown readily accepted responsibility for its mistake.
    Finally, the impugned submissions did not denigrate the appellants fundamental
    procedural rights, such as the presumption of innocence, the right to remain
    silent or the burden of proof.

CONCLUSION

[56]

For
    these reasons, we dismiss the appeal.

Released: June 7, 2021 G.R.S.

George R. Strathy C.J.O.

Paul Rouleau J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2021 ONCA 76

DATE: 20210122

DOCKET: M52132 (C65962) & M52143 (C68428)

Fairburn A.C.J.O.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacinda Hudson

Appellant

AND BETWEEN

Her Majesty
    the Queen

Respondent

and

Justice
    Okojie

Appellant

Maija Martin, Iman Amin and David Reeve,
    for the appellant, Jacinda Hudson

Chris Sewrattan, Ashley Sewrattan, and
    Raj Vijan, for the appellant, Justice Okojie

Sarah Shaikh, Christopher Walsh, and
    Jonathan Geiger, for the respondent

Owen Goddard and Rick Frank, for the proposed
    intervener, the Criminal Lawyers Association of Ontario

Emily Marrocco, for the proposed
    intervener, the Attorney General of Ontario

Heard: January 22, 2021 via
    videoconference

REASONS FOR DECISION

[1]

The appeals in
R. v. Hudson
(C65962)
    and
R. v. Okojie
(C68428) are scheduled to be heard before a five-judge
    panel on February 23, 2021. The respondents factum is due on February 5, 2021.

[2]

The appellants will argue that the decision in
Bell
    v. The Queen
,
[1983] 2 S.C.R. 471 made clear that the crime of
    importing is complete at the time that contraband enters Canada. They say that
    pronouncements to the contrary have wrongly interpreted
Bell

and
    expanded the reach of the importing offence beyond its intended limit.

[3]

The Attorney General for Ontario (Ontario) and
    the Criminal Lawyers Association of Ontario (CLA) seek leave to intervene in
    the appeals.

The Attorney General for Ontarios Application

[4]

Ontario argues that the scope of the
actus
    reus
of importing will inevitably impact upon offences under the
Criminal
    Code
, those over which the provincial Crown has prosecutorial
    jurisdiction. In specific, Ontario points to crimes involving the importation
    of firearms and importation of child pornography: ss. 103 and 163.1 of the
Criminal
    Code
. Accordingly, Ontario argues it has a clear interest in the appeals
    because any determination about when the
actus reus
of importing ends
    will necessarily touch on crimes prosecuted by the Province.

[5]

If granted leave to intervene, Ontario will
    argue that the
actus reus
of importing should extend to domestic
    distributors of firearms, failing which it will not capture those offenders at
    the heart of the crime. Ontario will also argue that child pornography enters
    Canada in different ways. Narrowing the
actus reus
of importing to the
    immediate entry point into Canada could have the effect of excluding from
    liability some modes of entry for child pornography, such as when child
    pornography comes into Canada through a virtual means.

[6]

The parties consent to Ontarios intervention. I
    see no risk of prejudice or unfairness arising from Ontarios intervention.
    Leave to intervene will be granted on the terms set out at the end of these
    reasons.

The Criminal Lawyers Associations
    Application

[7]

The CLA wishes to advance three arguments: (a)
    that by looking to the plain meaning of the statute, combined with legislative
    intent, it is clear that the term import ends when contraband enters Canada;
    (b) that the extension of the
actus reus
of importing beyond the
    immediate entry point into Canada results in convictions for importing in
    circumstances where accused have nothing to do with the actual bringing of the
    contraband into the country; and (c) affording the term import a definition that
    is susceptible to capturing lower-level drug operators, those who may transport
    or possess drugs after they are already in the country, will have a
    disproportionate impact on racialized communities, specifically Black and
    Indigenous communities. The CLA argues that any such approach will result in
    higher sentences for racialized communities, those communities that are already
    overrepresented in the custodial setting.

[8]

In support of this latter argument, the CLA
    relies upon five reports and studies. Three of them can be loosely described as
    prison population statistics, released in the form of annual reports from the
    federal government. There are also two reports that relate to systemic racism: Ontario,
Report of the Commission on Systemic Racism in the Ontario Criminal Justice
    System
, Co-Chairs: M. Gittens and D. Cole

(Queens Printer for
    Ontario, 1995); Ontario Human Rights Commission,
Racial Disparity in
    Arrests and Charges: An analysis of arrest and charge data from the Toronto
    Police Service
, S. Wortley and M. Jung (Toronto: 2020)
.

[9]

The appellants consent to the CLA intervening on
    the terms set out in the CLAs application.

[10]

While the respondent consents to the CLA
    intervening, that consent is only extended in relation to the first two issues
    raised by the CLA.

[11]

As for the third issue, the respondent argues
    that the CLA is inappropriately modifying the nature of the appeals. Rather
    than making the appeal about the definition to be afforded to the term
    import, the CLA is said to be attempting to make the appeal about the issue
    of the discriminatory effect of Canadas drug laws. The respondent points out
    that this particular argument has not formed any part of the prior cases from
    which decisions have emerged on the issue that the five-judge panel will be
    considering.

[12]

I am not persuaded by this argument. Whether
    other cases have considered the issue or not, contrary to the respondents
    position, I do not take the CLA to be injecting a new issue into the appeal.
    Rather, the CLA is wanting to contribute to the appeal by highlighting the
    context within which drug offences are committed, investigated, prosecuted,
    tried and sentenced. This is not, as the respondent suggests, an attempt to
    introduce a quasi-s. 15
Charter

argument into the appeal. The
    CLAs position is not unlike other cases where social context evidence, as advanced
    by interveners, has been considered: see for example,
R. v. Golden
,
2001 SCC 83, [2001] 3 S.C.R. 679, at para. 81.

[13]

The respondent
    also argues that the CLA is attempting to improperly augment the record before
    the court on this appeal. The respondent points to
Canada (Citizenship and Immigration) v. Ishaq
, 2015 FCA 151, [2016] 1 F.C.R. 686,

at
    para. 22, where the court addressed the inappropriate attempts by interveners
    to prove matters of social science under the guise of authorities. While I
    accept that the line between a proper placement of materials before the court
    and an inappropriate augmentation of the record is not always easy to draw, in
    my view, the materials advanced by the CLA do not cross that line.

[14]

It seems to me
    that the contextual position that the CLA wishes to advance is not particularly
    controversial. At its core, that position is rooted in the overrepresentation of
    Black and Indigenous persons in the prison system in this country, including
    the overrepresentation of these individuals in relation to drug-related matters.
    All of the reports and statistical materials that the CLA wishes to rely upon
    are publicly available, many of which are produced by those in the employ of
    the federal government. The statistics arise from federal government data, made
    available on federal government websites. It is precisely the kind of data that
    this court recently relied upon in
R. v. Sharma
, 2020 ONCA 478, 152 O.R. (3d) 209 at
    para. 95, leave to appeal to SCC granted, 39346 (January 14, 2021)

data
    which was placed before the court by interveners
.

[15]

As for the
    reports, at least one has been judicially cited in the past:
R. v. Hamilton

(2003),
    172 C.C.C. (3d) 114 (Ont. S.C.J.), at para. 106, appeal dismissed (2004), 186
    C.C.C. (3d) 129 (Ont. C.A.). The other report, commissioned by the Ontario
    Human Rights Commission, is fairly recent.

[16]

While there are
    circumstances where an intervener will be precluded from augmenting the record,
    in my view, the materials proposed to be filed by the CLA are largely non-controversial.
    In any event, in my view, it is better to leave this matter with the panel
    hearing the appeal. As the CLA acknowledges, it may be that the panel will not
    be persuaded by their position that the contextual backdrop against which
    drug-related offences take place informs the limits that should be placed on
    the
actus reus

of importing. I would leave that
    determination to the panel hearing the appeal.

[17]

The respondent
    maintains that if the CLA is granted intervener status, and is permitted to
    advance all arguments, the respondent may have to file further materials. No
    one objects to that request.

[18]

I order as
    follows:

(a) The Attorney General for Ontario is
    granted leave to intervene on the basis of the argument set out in the application
    materials;

(b) The CLA is granted leave to intervene
    on the basis of the argument set out in the application materials;

(c) The interveners will file factums no
    more than 15 pages in length, to be filed no later than February 2, 2021;

(d) The interveners will be granted 15
    minutes each to make oral argument at the hearing of the appeals;

(e) In response to the interveners
    written arguments, the parties may each file a factum of no more than 10 pages
    in length, to be served and filed no later than February 10, 2021.

Fairburn
    A.C.J.O.