COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Macintyre-Syrette, 2018 ONCA 706

DATE: 20180830

DOCKET: C62825

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Macintyre-Syrette

Appellant

Kristin Bailey and John Fennell, for the appellant

Kevin Rawluk, for the respondent

Heard: January 31, 2018

On appeal from the sentence imposed on October 19, 2016,
    with reasons reported at 2016 ONSC 6496 by Justice Michael N. Varpio of the Superior
    Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

On March 19, 2018, we released our reasons for decision in which we
    dismissed the appellants appeal from conviction for sexual assault and stayed
    the conviction for unlawful forcible confinement.
[1]
With respect to the sentence appeal, we concluded that the sentencing judge
    erred in principle in sentencing the appellant on the basis of an inadequate
Gladue
report without ordering a supplementary report or otherwise seeking additional
    information. That determination necessitated that this court reserve the
    sentence appeal pending receipt of a supplementary
Gladue
report.

[2]

In our reasons, we directed the Crown to obtain a supplementary report. Specifically,
    we sought additional information that would help us determine whether a
    non-custodial sentence could be crafted that would be proportionate to the
    offence and could also promote the reconciliation of the appellant to his
    community  a community which includes the complainant. We have now received
    the supplementary report, and the parties submissions. We are grateful to
    Aboriginal Legal Services for their diligence in obtaining the relevant information.
    We are satisfied that the information provided puts us in a position where we are
    able to assess the resources available in the appellants community to support
    a non-custodial sentence.

[3]

No non-custodial sentencing alternative has been identified  in the
Gladue
reports or by counsel  that would be proportionate to the offence. Accordingly,
    based on the
Gladue
reports provided and the record before the
    sentencing judge, we have determined that a fit and just sentence is the
    sentence that was originally imposed by the sentencing judge. For the reasons
    set out below  as well as those outlined in our earlier decision  we would grant
    leave to appeal sentence but would dismiss the appeal.

BACKGROUND

[4]

The appellant is a member of the Batchewana First Nation. He was
    convicted of a sexual assault that took place on June 1, 1999. The appellant,
    the complainant, and another person were swimming at a lake together. Afterwards,
    the appellant followed the complainant into the womens change room, came up from
    behind her, and attempted to force intercourse. The trial judge found that the
    appellant had attempted to rape the complainant, but was thwarted by the
    complainants resistance and the appellants inability to displace the
    complainants clothing. The appellant was convicted of sexual assault, and was
    sentenced to six months imprisonment, followed by three years of probation.

[5]

The sentencing judge considered the appellants request for a
    conditional sentence in the context of
R. v. Gladue
, [1999] 1 S.C.R.
    688, and s. 718.2(e) of the
Criminal Code
. As we noted in our previous
    reasons, he ultimately concluded that the circumstances of this particular
    appellant did not diminish the moral culpability of his actions.  The sentencing
    judge accepted that given the appellants background of non-criminality, he
    would not pose a threat to the community if he received a conditional sentence.
    However, the sentencing judge nonetheless held that a conditional sentence was
    not appropriate because of the primacy of the need for deterrence and
    denunciation of this offence in these circumstances.

[6]

On appeal, the appellant argues that the sentence should be varied and
    that the appropriate sentence is a 12 month conditional sentence, to be served
    in the community.

Analysis

[7]

In our previous reasons, we held that it was an error for the sentencing
    judge to proceed with sentencing with the limited materials before him,
    particularly with respect to the second aspect of the
Gladue
analysis:
    determining the types of sentencing procedures and sanctions that would be
    appropriate given the offenders connection to his specific Aboriginal
    community:
R. v. Ipeelee,
2012 SCC
    13, [2012] 1 S.C.R. 433
, at para. 74.

[8]

As we noted in our reasons, at para. 19:

Section 718.2(e) imposes an affirmative obligation on
    sentencing judges to inquire into the relevant circumstances of the offender,
    including the types of sentencing procedures and sanctions which may be
    appropriate because of his or her particular Aboriginal heritage or connection;
    either from the parties or on his or her own initiative, a sentencing judge must
    be made aware of alternatives to incarceration that exist whether inside or
    outside the aboriginal community of the particular offender:
R. v. Wells
,
    2000 SCC 10, [2000] 1 S.C.R. 207, at paras. 38, 54;
Ipeelee,
at para.
    72,
Gladue
, at para. 84. This information was not made available to
    the sentencing judge in this case in either the pre-sentence report or the
Gladue
report.

[9]

Our concern with the initial
Gladue
report was that it did not
    put the sentencing judge in a position where he could meaningfully consider alternatives
    to incarceration. This was, in part, because the
Gladue
report
    contained no information from the Batchewana First Nation or any other source as
    to what institutions or alternative sentencing procedures, such as sentencing
    circles, exist within the appellants community, or are otherwise available.
    Such institutions, where they exist, can be used to craft a fit and effective sentence
    that is proportionate to the appellants offence and the degree of his responsibility.
    Where community based institutions exist, they can further the remedial purpose
    of s. 718.2(e) as well as restorative sentencing objectives, such as
    reconciling the offender to the community:
Ipeelee,
at paras. 72, 74,
R.
    v. Wells
, 2000 SCC 10, [2000] 1 S.C.R. 207
,
at para. 39.

[10]

The
    initial
Gladue
report recommended that the appellant participate in
    sweat lodges, Pow Wows, and community ceremonies as a means to the appellants personal
    healing. However, it was unclear from the report what specific ceremonies or
    other cultural practices were in fact open to the appellant in his community.
    It was also unclear to what extent such practices would further restorative
    justice or other sentencing objectives in the case of this particular offender
    a high-achieving person who already possessed an advanced knowledge of his
    culture, and whose offence was committed nearly 20 years ago. As we said in our
    reasons, at para. 23:

There was no information about the institutions in the
    appellants community, what opportunities exist for the appellant to
    participate in the various ceremonies recommended, whether the cooperation of
    other persons would be required, or whether that cooperation would be
    forthcoming. There was no proposal for any sort of mediation or other practice
    aimed at the specific reconciliation of this offender to his community. There
    was no explanation of how participation in the various ceremonies would benefit
    the appellant, given that he already possesses a highly advanced understanding
    of his culture. If this information was unavailable, or it would be impractical
    to obtain it, this should have been explained in the report. If sentencing
    judges are to fulfill the requirement of the second part of
Gladue
,
    they must be given information that puts them in the position to do so.

[11]

In
    light of this error, it is necessary for this court to consider and fashion an appropriate
    sentence after consideration of the supplementary
Gladue
report filed
    and the parties further submissions.

(1)

The supplementary
Gladue
report

[12]

The
    supplementary report appropriately sought input from the leadership of the
    Batchewana First Nation. The most salient information received  after the
    Chief and council delegated the questions posed by the authors of the report to
    the Director of the Batchewana Health Centre, and after several months of follow-up
     is that the Batchewana First Nation has no formal restorative justice practice
    or programs. The appellants father  a former Chief of the community  was
    interviewed for the supplementary report and stated that he believed this to be
    a deliberate and longstanding decision by the Batchewana First Nation, in order
    to avoid exposure to complaints about the process or any substantive decisions
    made. The report noted that the restorative justice options this court was particularly
    interested in in our earlier reasons do not appear to be available for [the
    appellant]. Whatever the reason, it appears that the Batchewana First Nation
    has chosen not to establish an institutional structure for the pursuit of
    restorative justice. It is under no obligation to do so.

[13]

The
    Batchewana First Nation provided an inventory of its social and cultural
    activities, and stated that there is no barrier to the appellants participation
    in them. However, the appellant argues that the situation is more complicated
    than that, due in part to the conditions of his bail, as well as orders which
    may be in force from other proceedings, and the participation in these
    activities by the complainant and other persons who have made sexual assault
    allegations against him. On the appellants assessment of these circumstances,
    he is not in fact able to participate.

[14]

The
    supplementary report did identify two avenues for counselling and mentoring of the
    appellant by a community Elder, in the one instance, and a traditional health
    practitioner in the other. The report recommends such counselling in the
    interests of healing in the community. The appellant is willing to participate
    in these. However, it remains unclear to us how the recommended counselling
    would relate to the offence or to restorative justice in the sense of
    reconciling the appellant with the community. It may be of great personal
    benefit to the appellant, but it does not appear to address the goals of
    sentencing in the context of this offender and this offence.

(2)

The proportionate sentence in light of the supplementary
Gladue
report

[15]

Section
    718.2(e) of the
Criminal Code
provides that all available sanctions
    other than imprisonment that are reasonable in the circumstances should be
    considered by a sentencing judge, with particular attention to the
    circumstances of Aboriginal offenders. This provision encourages the
    consideration and application of restorative justice principles in sentencing,
    and has at its core a remedial purpose:
Gladue
, at para. 48;
Wells,
at para. 36.

[16]

We
    are conscious of the Supreme Court of Canadas admonition in
R. v. Proulx
,
    2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22 and 90,

that we are to
    give serious consideration to a conditional sentence in these circumstances,
    and that a conditional sentence is generally more effective than incarceration
    at achieving the restorative objectives of rehabilitation, reparations to the
    victim and community, and the promotion of a sense of a responsibility in the
    offender. Further, a conditional sentence is itself a punitive sanction
    capable of achieving the objectives of denunciation and deterrence:
Proulx,
at para. 22. A focus on denunciation and deterrence in sentencing does not
    necessarily foreclose a conditional sentencing order in the circumstances:
R.
    v. Cooper,
2010 ONCA 452, 101 O.R. (3d)
,
at para. 80.

[17]

As
    the Supreme Court noted in
Wells,
the sentencing principles developed
    in
Gladue
are relevant to the determination of whether a conditional
    sentence is appropriate in the circumstances. A court must consider the
    offenders Aboriginal status in determining whether to impose a conditional
    sentence:
Cooper
, at para. 73.

[18]

However,
    as LaForme J.A. noted in
R. v. Kakekagamick
(2006), 81 O.R. (3d) 664,
    leave to appeal refused [2007] S.C.C.A. No. 34, at para. 42, there is no
    general rule that in sentencing an Aboriginal offender the court must give the
most
weight to the principle of restorative justice, as compared to other legitimate
    principles of sentencing. The relative weight to be assigned to the goals of
    restorative justice as against the principles of denunciation or deterrence will
    be connected to the severity of the offence:
Wells,
at para. 39. The
    principles of denunciation and deterrence may predominate where the offence is
    sufficiently serious:
Kakekagamick,
at para. 42.

[19]

The
    scope of s. 718.2(e) restricts the adoption of alternatives to incarceration to
    those sanctions that are reasonable in the circumstances: see
Wells,
at
    para. 39. In keeping with this principle, there are circumstances in which the
    need for denunciation and deterrence is such that incarceration is the
only
suitable way to express societys condemnation of the offenders conduct:
Proulx,
at paras. 106-107. As Doherty J.A. noted in
R. v. Killam
(1999)
,
126 O.A.C. 281, at para. 13, a conditional sentencedoes not, generally
    speaking, have the same denunciatory effect as a period of imprisonment.
    Incarceration remains the most formidable denunciatory weapon in the sentencing
    arsenal.

[20]

Ultimately,
    after considering the requirements of s. 718.2(e) and the information provided
    in the two
Gladue
reports, we conclude, as did the sentencing judge at
    first instance, that denunciation must be a primary sentencing objective in the
    context of this offender and this offence. As the sentencing judge found, the
    sexual assault committed by the appellant was forceful, involved confinement,
    and has had a significant impact upon the complainant.

[21]

We
    directed inquiries into whether resources exist to fashion some non-custodial
    disposition that would nevertheless satisfy this objective, and have the added
    benefit of promoting reconciliation between the appellant and his community.
    From the information we received, we conclude that such an option is not
    available in the appellants community. A conditional sentence served in the
    community with individual counselling, as proposed by the appellant and
    supported by the
Gladue
reports, would not be a reasonable or proportionate
    sentence for this offence. This offence requires denunciation, as an
    affirmation of the dignity of the complainant, and no appropriate sentencing
    proposal or sanction, short of a custodial disposition, appears to be
    available.

[22]

Accordingly,
    and notwithstanding the sentencing judges error in his analysis of the
    sufficiency of the first
Gladue
report, we are of the view that the
    sentence imposed was in all the circumstances fit and proportionate: see, for
    example,
R. v. Twati
(2005), 204 O.A.C. 232;
R. v. Syed
(2005),
    195 O.A.C. 229;
Kakekagamick,
at para. 74. We would not interfere with
    it on appeal.

Disposition

[23]

Leave
    to appeal against sentence is granted, and the appeal from sentence is dismissed.

R.G. Juriansz
    J.A.

David Watt J.A.

B.W. Miller J.A.

[1]

Reported at
2018 ONCA 259.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Newton, 2018 ONCA 723

DATE: 20180831

DOCKET: C65517

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Newton

Appellant

Delmar Doucette and Zahra Shariff, for the appellant

Frank Au, for the respondent

Heard and released orally: August 24, 2018

On appeal from the sentence imposed on May 10, 2018 by
    Justice Alan C.R. Whitten of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant challenges the sentence imposed on him on his conviction
    for manslaughter entered after his plea of guilty to that offence pursuant to
    s. 606(4) of the
Criminal Code
.

[2]

The appellant does not say that the length of sentence identified by the
    trial judge was outside the range of sentence appropriate for this offence and
    this offender. The nub of his complaint is that the trial judge should have
    assigned credit of 1.5:1 for the time the appellant spent in the penitentiary
    after his first conviction for murder on this indictment until this court
    allowed his appeal and ordered a new trial.

[3]

In our view, even if it be accepted that the sentencing judge erred in
    principle in calculating the credit ratio for time spent in custody in the
    penitentiary, an issue that we find it unnecessary finally to decide, our
    intervention is only justified where we conclude that any error that may have
    occurred had an impact on the fitness of the sentence ultimately imposed.

[4]

This case proceeded on the basis that the sentencing decision was all
    about how much additional time was necessary to arrive at a sentence that
    reflected the fundamental principle of proportionality and gave effect to the
    other applicable sentencing objectives and aggravating and mitigating factors.

[5]

The sentencing judge settled on a net additional sentence of one year.
    We see no error in this approach or in the decision that he reached.

[6]

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

David Watt
    J.A.

Grant Huscroft
    J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Papasotiriou, 2018 ONCA 719

DATE: 20180830

DOCKET: M49479 (C65707)

Trotter J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Demitry Papasotiriou

Applicant/Appellant

James Lockyer, for the applicant/appellant

Frank Au, for the respondent

Heard: August 23, 2017

ENDORSEMENT

A.

introduction

[1]

On June 3, 2018, after a lengthy jury trial, Demitry Papasotiriou and
    Michael Ivezic were found guilty of the first degree murder of Allan Lanteigne.
    On June 7, 2018, they were sentenced to life imprisonment with no parole
    eligibility for 25 years. Mr. Papasotiriou seeks bail pending his appeal.

B.

factual background

[2]

For the purposes of these reasons, it is not necessary to summarize the
    voluminous evidence in great detail.

[3]

Mr. Papasotiriou and Mr. Lanteigne were married. Mr. Papasotiriou and
    Mr. Ivezic were having an affair. On March 2, 2011, when Mr. Papasotiriou was
    in Greece, Mr. Lanteigne was beaten to death in the foyer of their Toronto
    matrimonial home. It is the Crowns theory that, while Mr. Papasotiriou was
    away, he encouraged Mr. Ivezic to kill Mr. Lanteigne, and assisted him by
    ensuring that Mr. Lanteigne arrived home at a certain time, where Mr. Ivezic
    lay in wait.

[4]

The case against Mr. Papasotiriou was completely circumstantial. There
    was some suggestion of a financial motive. The couple married in 2004. Mr. Papasotiriou
    purchased the matrimonial home in 2006. However, in 2010, he left for
    Switzerland to pursue graduate studies in law. He soon abandoned his studies
    and moved to Greece, where he neither studied nor worked. Mr. Papasotiriou needed
    funds and repeatedly requested money from Mr. Lanteigne, who was working in
    Toronto. This was a great source of rancour between the two men.

[5]

In 2008, Mr. Papasotiriou and Mr. Lanteigne bought a mutual life
    insurance policy for $2 million. Shortly after the murder, Mr. Papasotiriou
    attempted to collect the proceeds, as well as survivor benefits from Mr.
    Lanteignes employers.

[6]

To prove Mr. Papasotirious complicity in the murder, the Crown relied upon
    email correspondence between Mr. Papasotiriou and Mr. Lanteigne, as well as Mr.
    Papasotirious email exchanges with Mr. Ivezic.

[7]

The case against Mr. Ivezic was different. He had access to the
    matrimonial home, courtesy of Mr. Papasotiriou, and his DNA was found under Mr.
    Lanteignes fingernails.

[8]

As discussed below, Mr. Papasotiriou was discharged at the preliminary
    inquiry. In a lengthy decision, Nakatsuru J., then a judge of the Ontario Court
    of Justice, found that there was insufficient evidence to warrant a trial for
    Mr. Papasotiriou. However, Mr. Ivezic was committed to stand trial.

[9]

Mr. Papasotirious success was short lived. The Crown applied for
certiorari
to quash the order of Nakatsuru J. Before that application was heard, the
    Attorney General preferred an indictment under s. 577 of the
Criminal Code
.

[10]

The
    trial was long and difficult. Mr. Papasotiriou had counsel; Mr. Ivezic did not.
    At the close of the Crowns case, both applied for directed verdicts of
    acquittal. The trial judge, Goldstein J., dismissed their applications:
R.
    v. Papasotiriou-Lanteigne
, 2018 ONSC 1994. In relation to Mr.
    Papasotiriou, he placed heavy reliance on an email sent to Mr. Lanteigne on the
    day he was killed, in which Mr. Papasotiriou insisted that Mr. Lanteigne be
    home by a certain time, and that he not dilly dally. Mr. Lanteigne was killed
    shortly thereafter.

[11]

Following
    the dismissal of the directed verdict application, evidence was called on
    behalf of Mr. Papasotiriou that established that he had received an offer to
    purchase a property that he owned in Greece. His counsel argued before the jury
    that Mr. Papasotiriou wanted Mr. Lanteigne to be home at a particular time so
    that he could deliver the good news over the phone, instead of by email.

[12]

The
    jury deliberated for six days before delivering its verdicts. They asked no
    questions during their deliberations.

C.

Mr. Papasotiriou and his bail history

[13]

Mr.
    Papasotiriou is 38 years old. He was born in Greece and spent his first 11
    years in that country. He came to Canada after his parents marriage failed. He
    attended university and then law school, and was called to the Ontario Bar.

[14]

As
    noted above, Mr. Papasotiriou left Canada in 2010 and ended up in Greece. There
    was evidence that he intended to stay in Greece permanently. While the details
    are vague, his father gifted him a property, said to be worth around CDN $600,000.
    It was this property on which a purchase offer was received.

[15]

Mr.
    Ivezic went to Greece in the latter part of 2010 and lived with Mr.
    Papasotiriou for six months. Mr. Ivezic returned to Canada in January of 2011. Mr.
    Lanteigne was killed on March 2, 2011. In the following months, Mr. Ivezic assisted
    Mr. Papasotiriou in attempting to obtain death benefits and insurance proceeds.
    On May 14, 2011, Mr. Ivezic returned to live with Mr. Papasotiriou in Greece.

[16]

Mr.
    Papasotiriou finally returned to Canada on November 1, 2012, knowing that he
    was a suspect in Mr. Lanteignes murder. He was arrested on November 2, 2012. However,
    Mr. Papasotirious return to Canada needs to be seen in a broader context. His
    intention in returning was for the purpose of participating in litigation over
    the proceeds of the insurance policy he held with Mr. Lanteigne.

[17]

In
    August of 2013, Mr. Papasotiriou applied for bail. His application was heard by
    MacDonnell J. of the Superior Court of Justice. The Crown relied solely on the
    primary ground in s. 515(10)(a) of the
Criminal Code
to argue that Mr.
    Papasotiriou should not be released. MacDonnell J. found that Mr. Papasotiriou
    had not discharged his onus under s. 522(2) of the
Criminal Code
and
    ordered his detention.

[18]

In
    November of 2013, Mr. Papasotiriou re-applied for bail before MacDonnell J.,
    offering an improved plan of release. This application was also dismissed.

[19]

As
    noted above, after a lengthy preliminary inquiry, Nakatsuru J. discharged Mr.
    Papasotiriou on September 11, 2014. The Crown immediately launched a
certiorari
application. Mr. Papasotiriou made a number of appearances in the Superior
    Court in response to this application. The direct indictment was preferred on
    October 28, 2014, resulting in Mr. Papasotirious arrest the next day. During
    this time (September 11 to October 29), he was not subject to any form of
    release. He stayed with his mother and his father-in-law. He did not attempt to
    leave the jurisdiction.

[20]

Mr.
    Papasotiriou applied for bail again. This time he was released by Forestell J. of
    the Superior Court of Justice on a $400,000 recognizance with his mother,
    sister, and stepfather as sureties. The Crown did not seek to review this
    decision. Mr. Papasotiriou was on bail for the next three and a half years,
    during which there were no charges, nor any compliance issues. In fact, his
    conditions were loosened from time to time. Mr. Papasotiriou remained on bail
    during the jurys lengthy deliberations. Bail was terminated by operation of
    law upon his conviction for murder: s. 523(1)(a).

D.

grounds of appeal

[21]

Mr.
    Papasotiriou advances several grounds of appeal. His main argument is that the
    jurys verdict was unreasonable. As this was the only ground that was developed
    at the oral hearing, I will not address the others.

E.

the release plan

[22]

Mr.
    Papasotiriou proposes a plan of supervision that is more stringent than his
    pre-trial bail. It entails a $500,000 recognizance with the following sureties:
    (a) Kakouli Poka, his mother, in the amount of $400,000; (b) Wasiem Diab, his
    stepfather, in the amount of $75,000; and (c) Aida Elfekes, his stepfathers
    mother, in the amount of $25,000. The Crown did not cross-examine these
    sureties, nor does it suggest that any of them would be unsuitable.

[23]

In
    addition to the significant recognizance, a number of conditions are proposed.
    These include strict house arrest with very narrow exceptions. It is further
    proposed that, before being released, Mr. Papasotiriou be fitted with a GPS
    ankle bracelet to be monitored by Recovery Science Corporation. Mr.
    Papasotiriou, not the government, would be responsible for funding this service.

F.

analysis

(1)

Introduction

[24]

The criteria for bail pending appeal of a
    conviction are set out in s. 679(3) of the
Criminal Code
. An applicant must establish that: (a) the appeal is not frivolous;
    (b) he will surrender into custody in accordance with the terms of any bail
    order; and (c) detention is not necessary in the public interest.

(2)

Not Frivolous (s. 679(3)(a))

[25]

In
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, Moldaver J. said, at para. 20, that the not
    frivolous test is widely recognized as being a very low bar. The Crown does
    not suggest the that the appeal is frivolous. I agree.

(3)

Surrender into Custody (s. 679(3)(b))

[26]

The
    Crown argues that Mr. Papasotiriou has not discharged his onus on this ground,
    relying heavily on his ties to Greece.

[27]

As
    noted above, Mr. Papasotiriou returned to Canada from Greece,
knowing
he was under suspicion for murder, but not
because
he was under
    suspicion. He returned to pursue insurance proceeds. Nevertheless, his return
    was voluntary, and it is a modest factor in his favour.

[28]

In
    dismissing Mr. Papasotirious bail applications on the primary ground, MacDonnell
    J. was concerned that there is no mechanism to seek the return of Mr.
    Papasotiriou should he flee to Greece. Greece is not required to extradite its
    citizens.
[1]
This was a legitimate concern at the time. However, Mr. Papasotirious lengthy history
    of bail compliance, combined with the enhanced plan of supervision that is now proposed,
    render the extradition scenario remote.

[29]

Mr.
    Papasotirious compliance with his pre-trial bail order was flawless. There
    were no reported problems for three and a half years. This type of track record
    is an important factor that typically weighs in favour of release: see
R.
    v. Forcillo
, 2016 ONCA 606, at para. 19;
R. v. Matteo
, 2016 QCCA 2046,
    para. 13; and
R. v. Xanthoudakis
, 2016 QCCA 1809, at para. 9.

[30]

Furthermore,
    it is proposed that the previously successful release plan be augmented by
    electronic monitoring. Electronic monitoring is no guarantee against flight:
    see
United States of America v. Singh
, 2014 ONCA 559, at para. 17.
    However, it can be a useful enhancement to an otherwise credible release plan. It
    provides an extra layer of assurance against absconding. The technology is ever
    evolving. GPS monitoring, which was not available in some of the earlier cases
    commenting on the efficacy of this measure, is now the standard. Moreover, many
    Ontario judges have relied upon Recovery Science Corporation to assume this
    important role.
[2]
In this case, I too am prepared to do so, and consider it to be a significant element
    of the release plan.

[31]

I
    accept that, standing alone, Mr. Papasotirious connections to Greece may give
    pause for concern. However, any lingering concerns about flight are answered by
    his history of bail compliance and the strict release plan that is proposed. Accordingly,
    I am satisfied that the applicant will surrender into custody in accordance
    with his bail order.

(4)

The Public Interest (s. 679(3)(c))

[32]

There
    are two components of public interest to consider under s. 679(3)(c) of the
Criminal
    Code
 public safety and confidence in the administration of justice.

(a)

Public Safety

[33]

The
    Crown properly concedes that Mr. Papasotiriou has established that he will not
    commit offences if he is released on bail. Prior to being charged with this
    murder, the applicant has never been charged with a criminal offence, let alone
    a violent offence. He has discharged his onus under this part of s. 679(3)(c).

(b)

Public Confidence in the Administration of Justice

[34]

The Crown argues that Mr. Papasotiriou must be
    detained in order to maintain public confidence in the administration of
    justice.

[35]

The framework for applying this aspect of s.
    679(3)(c) was addressed in
Oland
. Writing for a
    unanimous Court, Moldaver J. explained that release on this ground is
    determined by the balancing of enforceability and reviewability considerations.

[36]

As Moldaver J. said at para. 38, enforceability
    considerations are informed by the similar basis for pre-trial detention in s.
    515(10)(c) of the
Code
 the tertiary
    ground. The following enumerated factors are applicable to the enforceability
    inquiry on appeal: the gravity of the offence (s. 515(10)(c)(ii)); the
    circumstances surrounding its commission (s. 515(10)(c)(iii)); and the
    potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)).

[37]

In this case, all three of these factors weigh
    against release. However, as Moldaver J. said at para. 39: By the same token,
    the absence of flight or public safety risks will attenuate against the
    enforceability interest.

[38]

The reviewability side of the ledger under s.
    679(3)(c) corresponds with s. 515(10)(c)(i)  the apparent strength of the
    prosecutions case. In the appellate sphere, the focus is on the strength of
    the grounds of appeal.

[39]

In oral argument, counsel for Mr. Papasotiriou
    advanced a credible argument that the verdict, based entirely on circumstantial
    evidence, was unreasonable and could not have been reached without
    impermissible speculation: s. 686(1)(a)(i). He argued that the body of emails
    relied upon by the Crown is susceptible to various interpretations and that the
    path to guilt rests heavily on a series of coincidences. The fact that Mr. Papasotiriou
    was discharged at the preliminary inquiry adds weight to this argument, at
    least for bail purposes.

[40]

The Crown downplays the importance of this
    decision by arguing that Nakatsuru J.s ruling was never reviewed by way of
certiorari
. However, the possibility of review was foreclosed by the Crowns
    decision to invoke s. 577 of the
Criminal Code
.

[41]

The Crown also relies on the fact that, on the
    directed verdict application, the trial judge came to a different conclusion
    when applying a comparable test of sufficiency, to a similar body of evidence.
    In his reasons, at para. 5, Goldstein J. recognized that his task did not
    involve a review of the correctness of Nakatsuru J.s reasons. He undertook his
    own evaluation of the evidence. Still, Goldstein J.s decision assists the
    Crown on this issue, though only to a limited degree.

[42]

On this application for bail pending appeal, Mr.
    Papasotiriou argues that Goldstein J. erred in law and misapprehended a key
    piece of evidence  the so-called dilly dally email. Whether this is so is
    unimportant. When this ground of appeal is argued before a panel of the court, it
    will not involve a review of the decisions of Goldstein J. or Nakatsuru J.
[3]
Under s. 686(1)(a)(i), the
    court will conduct its own assessment of the reasonableness of the verdict
    against the entirety of the evidence at trial (including defence evidence), utilizing
    a more robust scope of review: see
R. v. W.H.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at para. 40. Nevertheless, at this stage of
    the proceedings, the divergent conclusions reached by Nakatsuru J. and
    Goldstein J. demonstrate to me that the reasonableness of the verdict, as it
    relates to Mr. Papasotiriou, is clearly in issue. If he is successful on
    appeal, he will be entitled to an absolute acquittal. However, it will take a
    considerable amount of time before this court actually hears that appeal and
    decides this issue.

[43]

The public interest requires that I balance
    all of these factors  the circumstances of the applicant, the nature of the
    offence, the apparent strength of the appeal, and the time it will take to
    argue the appeal  to determine whether public confidence in the administration
    of justice would be undermined by Mr. Papasotirious release on bail. This is
    no easy task when the offence is as serious and as disturbing as this one. This
    balancing is explained in the following passage from
Oland
, in which Moldaver J. says, at paras. 49-51:

In the final analysis, there is no
    precise formula that can be applied to resolve the balance between
    enforceability and reviewability. A qualitative and contextual assessment is
    required. In this regard, I would reject a categorical approach to murder or
    other serious offences, as proposed by certain interveners. Instead, the
    principles that I have discussed should be applied uniformly.

That said,
where the applicant
    has been convicted of murder or some other very serious crime
, the public
    interest in enforceability will be high and will often outweigh the
    reviewability interest, particularly
where there are lingering public safety
    or flight concerns
and/or the grounds of appeal appear to be weak

On the other hand, where public
    safety or flight concerns are negligible,
and where the grounds of appeal clearly
    surpass the "not frivolous" criterion
, the public interest in
    reviewability may well overshadow the enforceability interest, even in the case
    of murder or other very serious offences. [Emphasis added. Citations omitted.]

[44]

Both sides rely on different aspects of this
    passage. On the one hand, it is clear that Mr. Papasotiriou has been convicted
    of the most serious crime in the
Criminal Code
. However, this does not
    foreclose his ability to obtain bail pending appeal. After all,
Oland
was
    itself a murder case. See also
R. v. Shlah
,
    2017 ABCA 425. On the other hand, given the proposed plan of release, which
    involves very strict supervision, there are no longer any lingering flight
    concerns. Moreover, the main ground of appeal clearly surpasses the not
    frivolous threshold.

[45]

Public
    confidence
is to be measured by the standard of a reasonable
    member of the public. As Moldaver J. said in
Oland
, at para. 47: This person is someone who is thoughtful,
    dispassionate, informed of the circumstances of the case and respectful of
    societys fundamental values. See also
R. v. St-Cloud,
2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80.

[46]

A
    reasonable and well-informed member of the public would appreciate that, although
    Mr. Papasotiriou has been convicted of a horrendous crime, proper proof of his
    involvement may well be in doubt. A reasonable member of the public would also realize
    that Mr. Papasotiriou is not simply being turned loose on society, with no
    precautions or safeguards, while his case works its way through the appeal
    process. To the contrary, he will be released on very stringent conditions,
    including house arrest, backed by GPS electronic monitoring, and the pledge of
    half a million dollars by his sureties. A similar plan, but without electronic
    monitoring, was completely successful for three and half years pending trial.

[47]

In
    conclusion, it is my view that a reasonable member of the public would accept
    that, in all of the circumstances of this case, Mr. Papasotirious release on bail
    pending appeal is consistent with the just and proper functioning of our
    justice system.

G.

Disposition and release order

[48]

The
    application is allowed. Mr. Papasotiriou is to be released on a $500,000
    recognizance with three sureties and 19 other conditions agreed to by counsel
    and approved by me.

G.T. Trotter
    J.A.

[1]
Mr. Ivezic was returned to Canada from Greece through extradition channels, but
    there is no indication that he is a Greek citizen.

[2]
The extent of this reliance is detailed in the report prepared by Mr. Stephen
    Tan, Director of Operations, Recovery Science Corporation. This document formed
    part of Mr. Papasotirious bail pending appeal application materials.

[3]
This is not to say that the careful reasons of both judges will not be of value
    in determining what inferences may properly be drawn from the evidence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Szilagyi, 2018 ONCA 695

DATE:
20180824

DOCKET:
C62546

Feldman and Benotto JJ.A. and Sachs J. (
ad
hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

George Szilagyi

Appellant

Andrew Menchynski, for the
appellant

Rick Visca, for the
respondent

Heard: March 28, 2018

On appeal
from the convictions entered by Justice Lynne Leitch of the Superior Court of
Justice, sitting without a jury, on May 30, 2016.

Feldman J.A.:

[1]

The appellant was charged with a number of drug-related offences after
police executed a search warrant for his residence for the purpose of finding
an unlicensed firearm and ammunition. There was neither a firearm nor ammunition,
but the police found and seized illegal drugs, cash, and a cellphone in the
residence.

[2]

While the search of the home was proceeding, the police arrested the
appellant outside his residence for possession of a firearm and ammunition, and
conducted a search incident to arrest which yielded only another cellphone. They
obtained a warrant to search both phones. A police expert was prepared to
testify that some of the text messages related to drug trafficking.

[3]

The appellant applied for an order that the seized evidence was obtained
in breach of his ss. 8 and 9 rights under the
Canadian Charter of Rights
and Freedoms
and sought to exclude the evidence under s. 24(2) of the
Charter
.

[4]

The trial judge found that both the search of the residence and the
arrest and search of the appellant were unlawful and contrary to ss. 8 and 9 of
the
Charter
. First, she agreed with the appellants submission that the
information to obtain (ITO) did not contain reliable evidence that could form
the basis for issuing a warrant to search the appellants residence. Second,
she found that the arrest and search incident to arrest were both unlawful, as
there were no reasonable and probable grounds to believe the appellant was
carrying the gun, and no valid reason to execute the search incident to arrest.

[5]

However, the trial judge declined to exclude the evidence obtained from
the search of the residence under s. 24(2). Applying the factors set out in
R.
v. Grant
,
2009 SCC 32, [2009] 2
S.C.R. 353,
she concluded that the police acted in good faith in
obtaining and executing the search warrant. Therefore, the breaches were less
serious, favouring admission of the evidence. She acknowledged that the impact
on the appellants strong liberty and privacy interests was serious, favouring
exclusion. Last, the breaches resulted in evidence that, if excluded, would end
the Crowns case, thereby favouring admission. She found that the balance of
the three factors favoured admitting the evidence seized from the residence.

[6]

In a subsequent motion, the appellant challenged the warrant to search
the two cellphones the police seized and the admission of the text messages
obtained from them. The trial judge determined that the text messages could be
admitted under s. 24(2), largely for the reasons articulated in her previous
ruling.

[7]

After the trial judge dismissed his application and motion to have the evidence
relating to the charges excluded, the appellant did not contest the charges and
was convicted of two counts of possession of Schedule I substances (cocaine and
oxycodone) for the purpose of trafficking and one count of possession of a
Schedule III substance (MDMA) for the purpose of trafficking, contrary to s.
5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19.

[8]

The appellant appeals on the basis that the trial judge made two errors
in not excluding the evidence under s. 24(2). First, he submits that the trial
judge erred by mischaracterizing the police conduct as being in good faith
and treating it as mitigating to the extent that it favoured admission of the
evidence. Second, the appellant submits that the trial judge failed to consider
a number of significant aggravating factors when determining the seriousness
of the states conduct. He submits that on a proper s. 24(2) analysis, the
evidence ought to be excluded.

[9]

I agree that it was an error for the trial judge to find that the police
acted in good faith in obtaining the search warrant and arresting the appellant.
In my view, on a proper balancing of the
Grant
factors, the evidence
should be excluded under s. 24(2) of the Charter. I would therefore allow the
appeal.

Background Facts

[10]

On November 29, 2011, the police obtained a telewarrant to search the
appellants residence in London, Ontario for an unlicensed firearm and
ammunition. A justice of the peace authorized the warrant to search the
appellants residence based on an ITO submitted by the police. The grounds set
out in the ITO for the warrant were founded almost entirely on tips provided by
two confidential informants (CIs).

[11]

The ITO described CI #1 as an unproven confidential informant, who was
motivated by civic duty and immersed heavily in the drug subculture. The
informant was currently providing information in relation to several drug
investigations, which had been corroborated by other means but not acted upon.
The ITO did not disclose whether CI #1 had a criminal record, and only stated
that Source #1 has not been convicted of mislead police or perjury.

[12]

Officer Adam Steele, the affiant of the ITO, later testified at the
appellants trial that at the time the ITO was drafted, it was his systematic
practice not to blanketly disclose to an issuing justice all the information
pertaining to a CIs police record. He also testified that the problematic
nature of this practice has since been brought to his attention, and although
he no longer applies for search warrants, if he were to do so now, he would
attach the informants criminal record. Officer Steele confirmed that he
conducted inquiries into the informant, including his police record, and not
all of that information was included in the ITO.

[13]

The ITO described CI #2 as someone who was not involved in the drug subculture
and who had provided information out of civic duty.

[14]

CI #1 provided the majority of the information; CI #2 provided very
little. The information from CI #2 was referenced only in one paragraph of the
ITO entitled Background to the Investigation, and that information was
redacted.

[15]

CI #1 provided information that the appellant was actively dealing
cocaine and MDMA and was in possession of a quantity of drugs. CI #1 was able
to identify the appellant from a dated mug shot and described the appellant as
approximately six feet tall with a muscular build. CI #1 also indicated that
the appellant possessed a .22 caliber rifle that was 1.5 feet in length, made
of wood, with a sawed-off barrel and stock. CI #1 believed that the appellant
was not interested in selling the gun.

[16]

The ITO did not reveal how CI #1 knew this information, and the police made
limited attempts to corroborate it. They reviewed lease documents to verify
that the appellant lived at the address provided by CI #1.The police confirmed
that neither the appellant nor the others who lived at the target address had a
license to possess firearms.

[17]

Despite conducting surveillance on the appellant, the police did not
observe him carry or conceal anything that appeared to be a firearm, nor did
the police otherwise observe the appellant doing anything illegal or
suspicious.

[18]

Additionally, Officer Steele swore that the police opted to obtain a
warrant for nighttime and extended entry because the appellant was unlikely to
be carrying the firearm on his person outside his home:

At the time of this writing it is the intention of the London
Police Service to execute this warrant once the subject of the warrant, George
Szilagyi, has departed the residence.
Police have no information that
Szilagyi carries this firearm in the community and thus if arrested outside his
residence, he will likely not have the firearm on his person
. Once removed
from the residence this will provide police with the safest possible time of
execution as Szilagyi will already be in custody when Police enter to search
for the firearm. Police are currently conducting surveillance of Szilagyi and
intend on arresting him once he departs the residence, and the granting of the
night time entry and extended period will allow for that should he depart
during those hours. [Emphasis added.]

[19]

Although CI #1 had also asserted that the appellant was trafficking in
illegal drugs, the police did not apply for a warrant for the purpose of
finding drugs. Officer Steele testified that he did not apply for a search warrant
for this purpose because the information that he was provided in relation to
the drugs was not as detailed as the information that he was provided in
relation to the firearm. Accordingly, the ITO did not provide any information
regarding how CI #1 knew the appellant was trafficking drugs or whether the
source had observed the appellant possessing or trafficking drugs, including in
his home.

[20]

On December 1, 2011, two days after obtaining the telewarrant, the
police observed the appellant leaving his residence. They followed him to a bus
stop and arrested him for possession of a firearm. The appellant was handcuffed
and searched incident to arrest. The police found a cellphone on his person, as
well as a small plastic baggie containing a reddish substance, a wallet, a
debt-list, and a set of keys.

[21]

As the appellant was being arrested, police executed the warrant to
search his home. In the living room, the police found cash and a second cellphone.
One of the appellants housemates was also there. Inside a bedroom, the police
located a passport in the appellants name, as well as 287 grams of MDMA, 27
grams of cocaine, 103 80-milligram tablets of oxycodone, 1 gram of marijuana,
Canadian currency totalling $2,310, two digital scales, and a box of plastic
bags.

Trial Judges Reasons

[22]

The appellant applied for an order excluding all the evidence found in
his home and on his person on the basis that the police violated his ss. 8 and
9
Charter
rights by searching his home, and by detaining and arresting
him. Specifically, he alleged that: the ITO that formed the basis for the
warrant to search his residence was insufficient, violating s. 8; the police
did not have reasonable and probable grounds to detain and subsequently arrest
him, violating ss. 8 and 9; and, as a result of these breaches, the evidence
seized from his person and residence should be excluded under s. 24(2).

[23]

The appellant further submitted that by hiding the criminal record of CI
#1 and stating that this informant had no convictions for perjury or lying to
the police, the police drafted an intentionally confusing ITO, which gave the
misleading impression that the CI was credible and had no criminal convictions.
Similar wording in another ITO had led to the exclusion of evidence in
R.
v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 742.

[24]

Dealing first with the limited disclosure of CI #1s criminal record,
the trial judge disagreed that it was a problematic element of the ITO because
Officer Steele had acted in good faith in swearing the ITO and had changed his
practice of not fully disclosing a CIs criminal record after learning that it
was problematic. Additionally, the ITO in this case was more detailed than that
provided in
Rocha
, because this ITO stated the informants motivation
for providing information to the police.

[25]

Nevertheless, the trial judge agreed with the appellant that the ITO did
not contain reliable evidence that could form the basis for issuing a warrant
to search the appellants residence. She found that there was no information as
to when and where and how the informant came to the conclusion that George was
in possession of the rifle. Additionally, she noted that there was no
disclosure of the underlying circumstances for the informants conclusion, nor
of the source or means of knowledge to provide reasonable grounds for
believing that the appellant had committed an offense relating to the
possession of an unlicensed firearm.

[26]

The trial judge characterized CI #1 as an untested and unproven
informant, whose record for crimes of dishonesty and other offenses was
unknown. Therefore, the fact that this CI had provided reliable information
previously did not enhance his/her credibility and reliability. Nor was CI #1s
tip corroborated by police surveillance.

[27]

The trial judge also concluded that, as there was not enough evidence in
the ITO to create reasonable and probable grounds, the appellants arrest was
unconstitutional. Similarly, the search incident to arrest was
unconstitutional, as there was no evidence that the search was necessary for officer
safety issues or because of exigent circumstances. Further, the trial judge
found that the police believed that the appellant was not carrying the alleged
firearm on his person at the time of the arrest and therefore had no valid reason
to execute the search incident to arrest.

[28]

The trial judge then turned to the issue of whether the
unconstitutionally obtained evidence should be excluded under s. 24(2), and
concluded that a balancing of the three
factors from
Grant
favoured
admission of the evidence.

[29]

Focusing first on the seriousness of the police conduct, the trial judge
concluded that the police were mindful of the appellants privacy interests as
they had sought warrants to search the appellants residence and the two seized
cellphones, and conducted a minimally invasive search incident to arrest.

[30]

Regarding the contents of the ITO, she found that, unlike the ITO
at issue in the Supreme Court of Canadas decision in
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, this ITO did not contain any
misleading passages or false statements that contravened the duty to make
full and frank disclosure of all material information. Instead, she was
satisfied that Officer Steele acted in good faith in accordance with a practice
that had not yet been negatively commented upon  as it eventually was in
Rocha
. She again gave credit to Officer Steele for changing his practice
after learning of its problematic nature.

[31]

Although the trial judge acknowledged that the
ITO in the present case was like the one in
Rocha

because it contained an oddly worded statement that did not fully
disclose the CIs criminal record,
the ITO at issue in
Rocha

was deficient for
two other reasons: it contained several additional paragraphs that were
misleading and it was unsworn. She noted that these other issues contributed to
the conclusion in
Rocha

that the manner in which the ITO was
drafted situated the police conduct toward the serious end of the spectrum, and
that the circumstances here are much different from those before the court in
Rocha
.

[32]

The trial judge then analogized the
circumstances before her to those in
R. v. Learning
, 2010 ONSC 3816, 258 C.C.C. (3d) 68, and
concluded that the first
Grant
factor
favoured admission:

I reach a similar conclusion [as Code J. did in
R. v.
Learning
]. I agree with the Crowns submission that the impugned state
conduct falls on the lower end of the continuum. I am satisfied that the
officers all acted in good faith. They had detailed information from a human
source and they obtained a warrant to search the Target Residence before
conducting the search. They obtained a warrant before the cellphone was
searched. They acted in good faith notwithstanding my conclusion respecting the
sufficiency of the ITO.

[33]

Turning to the second
Grant

factor, the impact of the
breaches on the rights of the appellant, the trial judge observed that this
factor favoured exclusion of the evidence. This conclusion was based on the
Crowns concession that the interests engaged  the appellants liberty and
privacy  were both strong interests.

[34]

Finally, in relation to the third
Grant

factor,
societys interest in the adjudication of the case on its merits, the trial
judge observed that excluding the evidence of the drugs and cash would bring
the Crowns case to an end.

[35]

On balance, the trial judge concluded that the evidence should be
admitted because excluding the evidence would have a greater negative impact
on the repute of the administration of justice than admitting the evidence.

[36]

In a subsequent motion, the appellant challenged the warrant to search
the two cellphones the police seized following the search of his residence and
the search of his person incident to arrest, and the admission of the text
messages obtained from them. The Crown conceded that the warrant to search the
cellphones was invalid once the unconstitutionally obtained evidence was
excised from the ITO.

[37]

The trial judge found that the warrant to search the cellphones was
invalid because the ITO relied on to obtain the search warrant for the
appellants residence was insufficient to create reasonable and probable
grounds for his arrest.

[38]

However, after applying the three factors from
Grant
, the trial
judge determined that the text messages should be admitted under s. 24(2). She concluded
that, for the reasons articulated in her previous ruling, the
Charter
-infringing
state conduct was not serious. She found that the unconstitutionally obtained
evidence was not obtained through police misconduct: the police had not
disregarded the appellants rights in obtaining or executing the warrant to
search his residence or in arresting him and searching him incident to arrest.
She again highlighted her finding that the police had acted in good faith. And
although the breach of the appellants right to informational privacy was
serious, the extracted text messages were reliable real evidence, which weighed
in favour of admission.

[39]

On May 30, 2016, after failing to have the evidence at issue excluded, the
appellant did not further contest the Crowns case against him, and convictions
were entered.

Issues

[40]

The appellant raises the following issues on appeal:

1)

The appellant submits
that in her consideration of the first branch of the
Grant
analysis to
determine admissibility under s. 24(2) of the
Charter
, the seriousness
of the police conduct giving rise to the breach, the trial judge made two
errors in principle:

(a) The trial judge erred
when she found that the police acted in good faith and that this favoured
admission of the evidence; and

(b) The
trial judge erred by failing to consider three significant aggravating
factors when determining the seriousness of the states conduct in breaching
the appellants ss. 8 and 9 rights.

2)

The appellant submits that
as a result of these two errors, the trial judge came to an unreasonable
determination in applying
Grant
, and that conducting the
Grant

analysis anew leads to the conclusion that the evidence must be excluded.

Analysis

Standard of Review

[41]

The trial judges decision on whether to exclude evidence under s. 24(2)
of the
Charter
is a discretionary decision to be accorded significant
deference on appeal. However, appellate intervention is warranted where the
trial judge erred in law in her application of the legal test or principles,
failed to consider relevant factors or circumstances that could affect whether
admitting the evidence would bring the administration of justice into
disrepute, or made an unreasonable determination:
R. v. McGuffie
, 2016
ONCA 365, 131 O.R. (3d) 643, at para.
64;
Grant
, at paras. 86, 127;
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at para.
44;
R.
v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82;
R. v.
Jones
, 2011 ONCA 632, 107 O.R. (3d) 241, at para. 79;
R. v.
Ansari
, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72. In such a case, the
appellate court is entitled to conduct a fresh analysis of the
Grant
factors:
Jones
, at para. 79.

1)

Error in Considering the Seriousness of the Breach

(a) Good Faith

[42]

In
Grant
, the Supreme Court identified the three factors that a
trial judge is to examine and weigh in deciding whether to admit evidence that
was obtained by police conduct that breached the appellants
Charter
rights: 1) the seriousness of the
Charter
-infringing state conduct
that breached the appellants
Charter
right; 2) the impact of the
breach on the
Charter
-protected interests of the appellant; and 3)
societys interest in an adjudication of the charge on its merits.

[43]

In this case, the ss. 8 and 9
Charter
breaches were based on
the trial judges finding that the warrant the police obtained to search the
appellants home was founded on information that did not meet the test in
R.
v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168: the information was not
compelling, the source was not credible, and the police did not corroborate the
information from the source.

[44]

Three conclusions flowed from this finding: 1) [T]here was not reliable
evidence that might reasonably be believed on the basis of which the warrant
could have issued to search the Target Residence. 2) There was not enough
evidence in the ITO to create reasonable and probable grounds to arrest the
appellant. 3) The search of the appellant incident to arrest was neither necessary
for officer safety nor for the discovery of offence-related evidence.

[45]

The effect of these findings was that the police searched the
appellants home based on an invalid warrant, they arrested the appellant
without reasonable and probable grounds, and they searched the appellant
incident to arrest without a basis in law.

[46]

In reaching the conclusion that the ITO did not pass muster as the basis
for a search warrant nor give reasonable and probable grounds for the appellants
arrest and search incident to arrest, the trial judge noted a number of
deficiencies in the information from the confidential informant that the police
included in the ITO.

[47]

First, although the confidential informant gave a detailed description
of the gun that was supposed to belong to the appellant and to be found in his
home, there was no information about how the informant knew about the gun, who
it belonged to, or where it was. The trial judge equated this deficiency to that
noted by Rosenberg J.A. in
R. v. Rocha
: because the ITO in that case did
not contain information about the informers source of knowledge regarding the
drugs and their location in the house, there was nothing in the information to
compel a belief that the drugs would be in the house when the search was
conducted.

[48]

This was a serious and significant deficiency in the ITO. The trial judge
paraphrased Martin J.A. in
R. v. Debot

(1986), 30 C.C.C. (3d)
207 (Ont. C.A.), affd [1989] 2 S.C.R. 1140, in finding:

[H]ere there was no disclosure of the underlying circumstances
for the informants conclusion and the source or means of knowledge to allow
the justice of the peace to satisfy himself that there were reasonable grounds
for believing what was alleged.

[49]

On the issue of the informants credibility and reliability, the trial
judge rejected the Crowns submission that CI #1 should be viewed as credible
because he/she was motivated by civic duty, had no prior convictions for perjury
or mislead police, and had provided information in other cases that was
corroborated through other means.

[50]

The trial judge focused instead on the fact that the informant was
untested and unproven, that his/her record for all crimes of dishonesty and
other offences relevant to credibility (not limited to perjury and mislead
police) was unknown, and concluded that the informants credibility and
reliability were not enhanced by having previously provided reliable
information. Further, no surveillance confirmed his/her information. The only
confirmation the police obtained was that the appellant was one of three people
who were parties to a lease for the target residence, and they observed him
leave the building where the leased apartment was located.

[51]

The trial judge referred to a statement by the Supreme Court in
Debot

(SCC), at pp. 1170 and 1171, that the quality of the information and
corroborative evidence may have to be such as to compensate for the inability
to assess the credibility of the source.

[52]

To summarize, the police prepared and submitted an ITO that contained
serious and significant deficiencies with insufficient indicia of the credibility
and reliability of the main confidential informant, and failed to seek any
meaningful corroboration of the informants tip.

[53]

Nevertheless, the trial judge found that the police acted in good faith,
as in
R. v. Learning
. She relied on several factors: 1) The police
sought and obtained a warrant. 2) Since there were no misleading statements in
the ITO, as there were in
R. v. Morelli
, the police did not contravene
the obligation to make full and frank disclosure. 3) The search predated this
courts decision in
Rocha
, where an ITO with similar problems, notably
the failure to include an informants full criminal record, was found to be
conduct at the serious end of the spectrum. 4) The affiant officer had since
changed his practice of omitting informants full criminal records.

[54]

In
Rocha
, Rosenberg J.A. confirmed at para. 28 that applying
for and obtaining a search warrant from an independent judicial officer is the
antithesis of willful disregard of Charter rights.  However, where the ITO
that formed the basis for the issuance of the warrant is found to be
insufficient to support it, the proper approach to determine the seriousness of
the
Charter
breach is to first consider whether the ITO was misleading.
If it was, the seriousness will depend on whether the use of false or
misleading information was intentional or inadvertent.

[55]

In this case, the trial judge concluded that the police officer was
acting in good faith. A conclusion as to good faith cannot be grounded on a
lack of bad faith. The trial judge was incorrect to equate a lack of bad faith
on the officers part to good faith conduct.

[56]

In
R. v. Grant
, the Supreme Court discussed the proper approach
to examining police
Charter-
breaching conduct in relation to the s.
24(2) analysis. At para. 75 of
Grant
, the court stated:

Extenuating circumstances, such as the need to prevent the
disappearance of evidence, may attenuate the seriousness of police conduct that
results in a
Charter
breach:
R. v. Silveira
,
[1995] 2 S.C.R. 297,
per
Cory J. Good faith on the part of
the police will also reduce the need for the court to disassociate itself from
the police conduct.
However, ignorance of
Charter
standards
must not be rewarded or encouraged and negligence or wilful blindness cannot be
equated with good faith
:
R. v.

Genest
,
[1989] 1 S.C.R. 59, at p. 87,
per

Dickson C.J.;
R. v.
Kokesch
, [1990] 3 S.C.R. 3, at pp. 32‑33,
per
Sopinka
J.;
R. v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para.
59. Wilful or flagrant disregard of the
Charter
by those
very persons who are charged with upholding the right in question may require
that the court dissociate itself from such conduct. It follows that deliberate
police conduct in violation of established
Charter
standards
tends to support exclusion of the evidence. It should also be kept in mind that
for every
Charter
breach that comes before the courts, many
others may go unidentified and unredressed because they did not turn up
relevant evidence leading to a criminal charge. In recognition of the need for
courts to distance themselves from this behaviour, therefore, evidence that the
Charter
-infringing conduct was part of a pattern of abuse tends to
support exclusion. [Emphasis added.]

[57]

The Supreme Court reaffirmed and clarified these principles in
R. v.
Paterson
,
2017 SCC 15,
[2017] 1 S.C.R. 202. Brown J. stated that for errors to be considered to have
been made in good faith, they must be reasonable. Further, the
Charter
-infringing
conduct in question need not be deliberate, nor result from systemic or
institutional abuse to result in exclusion of evidence that was obtained as a
result of a clear violation of well-established rules:

My colleague Moldaver J. recalls the
trial judges finding that the police were acting in good faith (para. 66;
trial reasons, at para. 79). While [g]ood faith on the part of the police
willreduce the need for the court to disassociate itself from the police
conduct (
Grant
2009, at para.
75), good faith errors must be
reasonable
(
R. v.

Buhay
, 2003
SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Court has cautioned that
negligence in meeting
Charter
standards cannot be equated to
good faith (
Grant
2009, at para.
75). Even where the Charter infringement is not deliberate or the
product of systemic or institutional abuse, exclusion has been found to be
warranted for clear violations of well-established rules governing state
conduct (
R. v. Harrison
, 2009 SCC 34,
[2009] 2 S.C.R. 494, at paras. 24-25). [
Paterson
, at para 44.]

[58]

In
Paterson
, Moldaver J. in dissent disagreed with the majority
on whether the law that the police did not follow was well-established. In this
case, the trial judge appeared to view the
Rocha

decision as setting
out a new principle: that full and fair disclosure of all information regarding
an informants credibility and reliability is required in an ITO. Because the
police drafted the ITO before
Rocha
was released, the trial judge
found that they acted in good faith despite their failure to disclose the
informants criminal record.

[59]

This constituted an error of law. Truthful disclosure in an ITO is
axiomatic:
R. v. Araujo
,
2000 SCC 65, [2000] 2 S.C.R. 992, at
para. 46. The police do not get credit for doing what is expected.

[60]

In
Rocha
, Rosenberg J.A. focused on the oddly worded language
used to describe the criminal record of the informant. In this case, the trial
judge identified and properly criticized similar language (regarding no record
for perjury or mislead police). Rosenberg J.A. also focused on the fact that
the officer deliberately used that language to leave the impression that the
informant was honest, again similar to this case. Finally, like Officer Steele
in this case, the officer in
Rocha
had a practice of not disclosing the
informants full criminal record.
[1]

[61]

Although the ITO in
Rocha
featured additional deficiencies (it
was not sworn, for example), the problems with the disclosure regarding the informants
criminal antecedents were the main reason Rosenberg J.A. concluded that the
conduct by the officers fell at the serious end of the continuum for the
purposes of the first branch of the s. 24(2) analysis. The seriousness of
police conduct favoured exclusion of the evidence.

[62]

Nor was
Rocha
a case of first impression. Because the law was
not unclear when it was decided, the police conduct was deliberate and serious,
causing the court to set aside the trial judges analysis and ultimately, to
exclude the evidence.

[63]

I also note that the trial judge in this case gave credit to the officer
in the form of enhancing his good faith for now changing his practice. I make
two observations about this approach.

[64]

First, this amounts to an after-the-fact acknowledgment of wrongdoing by
the officer, when the law on the requirement of full disclosure was clear
before
Rocha
. As Benotto J.A. observed in
R. v. Strauss
, 2017
ONCA 628, 353 C.C.C. (3d) 304, at para. 50, to use after-the-fact
acknowledgement as a basis for minimizing the seriousness of the breach and
admitting the impugned evidence would render the
Charter
s protection
meaningless.

[65]

Second, I believe the trial judge overstated the officers evidence on this
issue. When asked if it was still his practice not to disclose an informants
full criminal record, he stated that he was currently not in the business of
writing search warrants, but that he had had conversations with Crown
attorneys indicating that his practice had been an issue with prior search
warrants. If he were now to write a search warrant, he would attach the
informants record to an ITO.

[66]

The trial judge also erred by equating the circumstances in this case
with those in
R. v. Learning
. The issue in that case was whether the
police officer had reasonable and probable grounds to arrest the accused for
possession of a gun, based on information from a confidential informant. The
ITO containing the grounds for the search warrant and the arrest of the accused
had to be significantly redacted on the
voir dire
in order to protect
the identity of the confidential informant. Because of this redaction, the court
found that the remaining information was not sufficiently detailed to give the
officer reasonable and probable grounds to arrest the accused and therefore his
arrest and detention violated s. 9 of the
Charter
.

[67]

However, Code J. was able to review and summarize the unredacted ITO. He
found that the officer had abundant reasonable and probable grounds, had scrupulously
set out the information in the ITO, and had also included any circumstances
that might undermine the grounds. Therefore, for the purposes of the first
Grant
factor in the s. 24(2) analysis, Code J. found no police misconduct at all in
preparing the ITO and in arresting the accused; the
Charter
violation
arose only as a matter of law from the Crowns inability to disclose enough of
the information in the ITO to demonstrate at the trial the reasonable and
probable grounds that did exist.

[68]

There is no similarity between the
Learning
case and this one.
The trial judges findings that the information given by CI #1 was insufficient
and that the police officers disclosure of that information was incomplete
were based on the essentially unredacted ITO. There is no basis on which to
equate the good faith conduct of the police officer who prepared the ITO and
authorized the arrest in
Learning
to the conduct of the police officer
in this case.

[69]

Finally, the Crown now submits that the ITO was not misleading because
by disclosing that the informant was involved in the drug trade, the issuing
justice would have known that he/she had criminal involvement that could
undermine his/her credibility.

[70]

I would reject this submission. It was not referred to by the trial
judge nor should it have been. The purpose and effect of disclosing an
informants police involvement is to give the issuing justice a full picture of
the credibility and reliability of the informant, particularly when the entire
warrant is based on that persons information. It is not to say one thing but
expect the justice to infer another.

[71]

To conclude on this point, in my view, the trial judge erred in law by
treating the officers negligent investigation of the informants tip and
negligent preparation of the ITO as demonstrating good faith, mitigating the
seriousness of the police conduct.

(b) Failure to Consider Three
Aggravating Factors

[72]

The appellant submits that the trial judge also erred in principle by
failing to consider three material aggravating factors in assessing the
seriousness of the state conduct:

1) When the trial judge came
to the s. 24(2) analysis, she effectively recast her findings that the
informants information was conclusory, that it lacked any basis for his/her
knowledge about the appellant, and that the only detail included was the
description of the gun. Instead, she described the information provided by the
informant as detailed information that the police relied on in good faith.

2) The trial judge failed to
consider the seriousness of the search incident to arrest. The police did not
have reasonable and probable grounds to arrest based on the ITO; they did not
believe the appellant was carrying his firearm when they arrested him, yet they
searched him on the basis of ensuring officer safety and finding evidence
relating to the search warrant; and they seized his cell phone, from which they
obtained access to his private digital information.

3) The trial judge failed to
consider the use of unclear language in the ITO, which aggravated the s. 8
breach by having the effect of possibly misleading the issuing justice about
the informants credibility, and thereby undermining the administration of
justice.

[73]

Although the appellant identifies these three issues as separate errors
by the trial judge amounting to aggravating factors, in my view, issues 1)
and 3) form part of the matrix of factors that undermine the trial judges
finding of good faith that I have discussed above.

[74]

I agree that the trial judge appeared to reassess her view of the
deficiencies in the presentation of the informants tip when she came to the s.
24(2) analysis. I also agree that the unclear language describing the
informants criminal record, similar to that in
Rocha
, had the
potential to mislead the issuing justice regarding the informants credibility
and reliability, and thereby undermine the administration of justice:
R. v.
Hosie

(1996), 107 C.C.C. (3d) 385 (Ont. C.A.), at p. 400.

[75]

Since, as discussed below, I find that this court is entitled to reweigh
the
Grant

factors, issue 2) is more appropriately addressed
when considering the second
Grant
factor in the s. 24(2) analysis.

2) Analysis of the s. 24(2)
Factors

[76]

Based on the trial judges error in principle in treating the police
conduct as good faith conduct that favoured admission of the evidence under the
first
Grant
factor, this court is entitled to conduct a fresh
analysis.

[77]

Dealing with the first
Grant
factor, the police conduct falls
at the more serious end of the spectrum, favouring exclusion of the evidence.
Although the police applied for and obtained a warrant, the ITO was seriously
deficient: it did not provide the type of information from the informant that
Debot

(SCC)

and
Araujo
require, it used misleading language
regarding the informants criminal record, and the police failed to corroborate
any information beyond the fact that the accused signed a lease for the target
residence and none of the three lessees had a firearms license.  Although the
Rocha
decision post-dated the polices application to obtain a search warrant for the
appellants home, the law relied on in
Rocha
to ground a similar
analysis and exclude the impugned evidence in that case was not new. It was an
error by the trial judge to mitigate the seriousness of the police conduct by
characterizing it as good faith, even if the police did not have the specific intent
to mislead.

[78]

All parties agreed that the second
Grant
factor, the impact of
the
Charter
-infringing conduct on the accused, favoured exclusion of
the evidence because of the significant effect that arresting the appellant,
searching his person, and searching his home had on his liberty and privacy
interests. However, the trial judge did not give sufficient weight to the
seriousness of the impact in assessing this second factor.

[79]

A useful comparison can be made with the approach taken by Code J. in
Learning
.
 There, the first
Grant
factor favoured admission of the evidence. Because
the informant in that case had provided detailed information that gave the
officer reasonable and probable grounds to arrest, there was no bad faith on
the part of the police officer in obtaining the warrant or arresting the
accused. However, Code J. explained that the officers good faith did not
mitigate the significant impact of the arrest and search on the accuseds
Charter
rights. He stated at para. 118:

[T]he second line of inquiry militates strongly in favour of
excluding the evidence as the accused was completely deprived of his core
liberty interest on the basis of a mere conclusory tip.

[80]

In my view, the second factor strongly favours exclusion of the
evidence.

[81]

While the third factor favours admission, at least of the drugs and cash,
this court has now recognized that [i]f the first and second inquiries make a
strong case for exclusion, the third inquiry will seldom, if ever, tip the
balance in favour of admissibility: see e.g.
R. c. Côté
, 2011 SCC
46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 81-89;
R. v. Morelli
,
2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paras. 98-112:
McGuffie
,
at para. 63.

Conclusion

[82]

While the evidence that was seized is real evidence that is reliable, a
proper balancing of the
Grant

factors requires exclusion of the
evidence in order to uphold the repute of the administration of justice.

[83]

I would allow the appeal, set aside the conviction and enter an
acquittal.

Released: August 24, 2018 K.F.

K. Feldman J.A.

M.L. Benotto J.A.

H. Sachs J.

[1]

The Crown submits that the record is not clear as to whether
the informant did in fact have a more extensive criminal record. I agree that
the officer did not state that explicitly. He stated that the informant had a
police record that was not fully disclosed in the ITO. However, it is
reasonable to infer, as the trial judge did, that the officer would have said
the informant had no criminal record had that been the case, rather than saying
no record for mislead police or perjury.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Theoret, 2018 ONCA 700

DATE: 20180828

DOCKET: C59934

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nichole Theoret

Appellant

Richard Litkowski and Jessica Zita, for the appellant

Katie Doherty, for the respondent

Heard: August 20, 2018

On appeal from the convictions entered by Justice Bruce
    Durno of the Superior Court of Justice on May 24, 2013.

REASONS FOR DECISION

[1]

Following a judge alone trial, the appellant was convicted of a number
    of offences, including the aggravated assault of her sometimes girlfriend. The
    appellants position at trial was that the complainants head, facial, neck,
    and body wounds were self-inflicted. Accordingly, the sole issue for resolution
    in relation to the aggravated assault charge was a simple one: did the Crown
    prove beyond a reasonable doubt that the appellant caused the complainants
    multiple and serious wounds? The trial judge answered that question in the
    affirmative.

[2]

The appellant maintains that the trial judge erred in taking judicial
    notice of two things: (a) the cause of the complainants bruising; and (b) the
    effect of the blood stain close to the complainants bed. The appeal was
    dismissed at the conclusion of oral argument with written reasons to follow.
    These are those reasons.

[3]

Context is important.

[4]

On the night of the offence, the appellant, the complainant, and the
    complainants uncle were drinking together. The complainant fell asleep in her
    bed. She awoke to find the appellant kneeling over her, expressing concern over
    the fact that the complainant was not wearing a necklace that the appellant had
    given to her. The complainant testified that about thirty seconds after she was
    awoken, the appellant started punching her in the face and head. The appellant
    grabbed the complainants hair, arms, neck, and wrists. The appellant was
    wearing rings at the time of the alleged assault, one of which was found to
    have the complainants blood on it.  The assault was said to have lasted for a
    few minutes, at which time the appellant bolted from the home.

[5]

The complainant had to spend two or three days in the hospital. Her
    injuries included several gashes that required stiches to her forehead, her eye
    area and behind her ear, significant bruising, an edema on her forehead, cuts
    to her neck, scalp, and face (that did not require stitches), swelling on her
    scalp, and tenderness in her collarbone area. She also had bruising on her arms
    and one of her legs, although she could not recall if the leg bruise was caused
    by the appellant.

[6]

The complainants injuries are captured in colour photographs that were
    filed as exhibits at trial and available for the trial judges consideration. If
    inflicted by the appellant, the seriousness of the complainants injuries
    easily fell into the category required for an aggravated assault. This brings
    us to the question on appeal: did the trial judge err in rejecting the position
    that the complainant caused her own injuries, instead concluding that they were
    caused by the appellant?

[7]

The appellant maintains that the trial judge erred in taking judicial
    notice of matters that required expert evidence. In particular, the appellant
    says that the trial judge erred in drawing inferences from the complainants
    bruising and blood splatter evidence. The appellant asserts that the trial
    judges conclusions were beyond what common sense and human experience would
    permit. Although we agree that trial judges cannot take judicial notice of
    matters that are properly the subject of expertise, we disagree that the trial
    judge did so.

[8]

In his careful and considered reasons, Durno J. did exactly what is
    asked of trial judges. His findings involved neither judicial notice, nor
    subjects invoking a need for expert evidence. He considered the entirety of the
    evidence before him, and drew inferences from the evidence by applying common
    sense and human experience. Considered in context, his findings were nothing
    more than inferences that were available to him on the whole of the evidence.
    They did not require expert clarification or comment.

[9]

In particular, the trial judge gave multiple reasons for why he rejected
    the suggestion that the complainant had inflicted her own wounds, including
    that, on this record, some degree of force had to have been applied to the
    complainants face. Having regard to the multiple, graphic photographs filed at
    trial, this does not seem like a controversial proposition. Indeed, the
    appellants trial counsel agreed, noting that some of the facial bruising was
    caused as a result of force beyond the cutting.

[10]

Having
    regard to the totality of the evidence, the trial judge found that the
    suggestion that the complainant could have caused the injury to herself became
    increasingly unlikely. Based upon the location of the injuries, as depicted
    in the photographs, it was open to the trial judge to conclude that the complainants
    injuries were consistent with her version of events. Accordingly, and
    understandably, the trial judge concluded that for the complainant to have done
    all of that to herself would have been truly remarkable. Despite the
    complainants admission of previous self-harming conduct, this was nothing more
    than a common sense conclusion. Even assuming that there is an expert who could
    opine on such matters, in the circumstances of this case, given the multiple
    cuts, bruises, scratches and wounds, it was unnecessary to have an expert
    testify.

[11]

The
    same is true of the trial judges conclusion regarding the evidence of blood.
    The appellant maintains that the trial judge erred in his conclusion regarding
    blood stains close to the complainants bed. The impugned passage in the
    reasons for judgment reads:

I also consider photographs 25, 30, and 31  that shows
    bloodstains to the right of the bed and the part of the bed that is probably
    closest to the bathroom. These appear to be droplets of blood, many of which
    are smeared. While I appreciate again theres no blood splatter expert about
    the direction of movement or how the stains got there, that some drops of blood
    are smeared is not inconsistent with [the complainants] trial evidence, albeit
    a second version, that she may have crawled over the bed and crawled to the
    bathroom over that area.

[12]

The
    appellant argues that this conclusion overreached because: (a) it relied on the
    complainants evidence, which was of questionable quality; and (b) expert
    evidence was required in order to comment on whether the blood stain was
    consistent or inconsistent with the complainants movements. We do not agree.

[13]

First,
    the quality of the complainants evidence was entirely within the domain of the
    trial judge. His thorough reasons demonstrate that he was alive to the need for
    caution and he specifically addressed those concerns. Second, the trial judges
    comment was rooted in the mere observation that smeared blood was not
    inconsistent with someone having crawled through the blood. It was open to
    the trial judge to make that observation. He did not go further and suggest
    that the blood pattern was consistent with the complainants version of events.

[14]

For
    these reasons, the conviction appeal was dismissed.

David Watt J.A.
Grant Huscroft J.A.
Fairburn J.A.