WARNING

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

An order restricting publication in this proceeding
    under ss. 486(1), (2), or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may order the
    exclusion of all or any members of the public from the court room for all or
    part of the proceedings if the judge or justice is of the opinion that such an
    order is in the interest of public morals, the maintenance of order or the
    proper administration of justice or is necessary to prevent injury to
    international relations or national defence or national security.

(2)     For the purpose of subsection (1), the
    proper administration of justice includes ensuring that.

(a) the interests of the witnesses under the age
    of eighteen years   are safeguarded in all proceedings; and

(b) justice system participants who are involved
    in the proceedings are protected.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, reference to the circumstances of the
    case, the reason for not making an order.  R.S., c. C-34, s. 442; 174-75-76, c.
    93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd
    Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7;
    1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16,
    34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss.
    4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. D.B., 2013 ONCA 578

DATE: 20130926

DOCKET: C54907

MacPherson, LaForme and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. B. (aka D. W. P. M.)

Appellant

Clayton C. Ruby and Nader R. Hasan, for the appellant

Shawn Porter, for the respondent

Heard: February 26, 2013

On appeal from the conviction entered on October 19, 2007
    and from the sentence imposed on November 20, 2009 by Justice George T. Valin
    of the Superior Court of Justice.

Pepall
    J.A.:

A.      OVERVIEW

[1]

The appellant was convicted of sexual assault after having been found
    guilty of touching the complainant on her thigh (over her clothes) and chest
    (under her clothes).  As a result of that conviction and prior convictions in
    1999, he was designated a long-term offender and is now subject to a long-term
    supervision order of eight years.  He appeals his conviction for sexual assault
    and his designation as a long-term offender.  He does not appeal his sentence
    of 30 months, having already completed that sentence.

[2]

The appellant advances two grounds of appeal against conviction.
    Firstly, he argues that the trial judge erred by basing the verdict on hearsay
    evidence.  Secondly, he submits that the verdict was unreasonable because the
    trial judge convicted him on the basis of the complainants evidence standing
    alone even though he had concluded that it would be dangerous to do so. On
    appeal, he abandoned his argument that the trial judge erred by failing to
    consider the defences submission that the complainants testimony was fabricated.

[3]

The appellant advances two grounds of appeal against his long-term
    offender designation.  Firstly, he argues that the trial judge erred in
    ordering that the appellant be assessed pursuant to s. 752.1 of the
Criminal
    Code
, R
.S.C. 1985, c. C-46,
for the purposes of
    a long-term or dangerous offender designation.  Secondly, he submits that the
    long-term offender designation was unreasonable because two years was an inappropriate
    sentence for the predicate offence.

[4]

For the reasons that follow, I would allow the appeal
    against conviction, set aside the verdict of guilty and order a new trial. As a
    result, there is no need to address the sentence appeal.

B.      EVIDENCE
    RELATING TO THE CONVICTION

[5]

The Crowns evidence consisted primarily of the testimony of the
    complainant and her mother. The defence did not call any evidence.

[6]

As found by the trial judge, the complainant was a 20-year-old
    drug addict with a young son.  She had been addicted to drugs for about three
    years. She sometimes lived with her parents and sometimes lived on the streets.

[7]

The complainants mother testified that on the afternoon of February 21,
    2007, the appellant arrived at her house along with her daughter. He had driven
    her there. The complainants mother testified that she talked with the
    appellant while her daughter packed some of her clothes and some baby toys. She
    acknowledged that her daughter was under the influence of drugs at the time.
    She testified in chief that her daughter was just in another world and that
    it was like she didnt even notice me. The complainant left in a vehicle
    driven by the appellant.

[8]

The mother testified that at around 5:30 a.m. the next morning, she
    received a phone call from her daughter. The call was made on the appellants
    cell phone.  Crown counsel elicited for narrative purposes what the complainant
    said to her during the call.  The trial judge recounted the gist of the
    complainants conversation as follows:

She told her mother she was with the accused, that she did not
    know where she was, and that she wanted to come home. She sounded frightened.
    Her mother could hear her speaking with the accused, whose voice she recognized
    from having met him a few hours earlier. When the victim asked the accused
    where they were, the response her mother heard was evasive. The accused said he
    was taking her to see the stars. When the victim asked the accused to drive her
    home, her mother heard him say, I am too busy right now.

[9]

The mother testified that during the conversation, her daughter
    said hes touching me and Im scared.

[10]

The
    complainants mother estimated the call lasted at least 15 minutes. After the
    call ended, the complainants mother phoned 911.

[11]

The
    complainant also testified. The trial had to be adjourned a day to permit her
    to do so because the Crown was concerned that she was under the influence of
    drugs.

[12]

The
    trial judge summarized the complainants testimony as follows:

The victim testified that, after her funds ran out on February
    21st, the accused had purchased drugs and alcohol for her.

Eventually, he drove her to a secluded place in the city. She
    was very high. She did not know where she was. It was dark. The accused would
    not tell her where she was. She was frightened. She called her mother on the
    accuseds cell phone and spoke to her for about 20 minutes.

During that time the accused touched her on her upper legs over
    top of her clothes and touched her breast underneath her clothes. She did not
    invite the accused to do that. She did not consent to him doing it. She was
    frightened by it and felt violated.

[13]

The
    complainant testified in-chief that the appellant operated an unofficial taxi
    service. Late in the afternoon of February 21, 2007, a friend of hers arranged
    for the appellant to pick her up at a party. She was intoxicated and high on
    drugs. The appellant drove her to her parents home. She was planning to move
    out and so she packed some belongings for herself and her son.

[14]

The
    complainants evidence was that she spent the evening of February 21 and the
    early morning of February 22 with the appellant, who drove her to various
    destinations to buy crack and cocaine for her.  He also picked up whiskey from
    his mothers house.

[15]

The
    complainant went on to testify that the appellant drove her to an area where
    there were no roads. It was dark. She had the appellants cell phone and was
    talking to her mother. The appellant touched her on her upper leg, on top of
    her clothing, and on her chest, under her clothing. She told him to stop. She
    then got out of the vehicle and dropped the phone and told him she was walking.
    The appellant said he would drive her as it was too far to walk. She did not
    remember driving back into town. The appellant dropped her off at the home of
    her sons uncle. When the complainant was asked in-chief how she was feeling towards
    the appellant, she responded: violated.

[16]

In
    cross-examination, the complainant acknowledged that the drugs she was
    dependant on affected her memory. She further acknowledged that she did not
    have a clear recollection of the discussion on the cell phone with her mother.
    She indicated that she was on drugs and intoxicated, and was in and out of
    consciousness.

[17]

The
    police arrived at the complainants uncles house early in the morning and
    arrested the complainant on a charge of breach of recognizance. At the time of
    the offence, the complainant had been released on a recognizance of bail that
    required her to live at her parents residence. She was taken to the police
    station.

[18]

The
    complainant testified that, while at the station, the investigating police
    officer told her about how dangerous the appellant is and that he had almost
    killed another girl. She testified that the officer told her that she would not
    have to go to jail for the breach, that the appellant was dangerous, and that
    he could hurt some other little kids, and she was given guilt trips all over.

[19]

In
    cross-examination, defence counsel elicited certain details from the
    complainant about her videotaped statement to the police. The Crown did not
    seek to enter the statement at the trial. The complainant acknowledged that
    during the police interview, she was emotional, crying, yelling and swearing.
    She explained she was coming down off drugs and coming down from
    (unintelligible) doing something I didnt want done. She told the officer that
    she was on a combination of cocaine and morphine, which she had injected.

[20]

The
    complainant acknowledged having told the officer that she did not want to talk
    about the events of the night. She agreed she tried to negotiate assurances
    from the officer that her mother was coming, that she would be released from
    custody, and that the police would assist her in finding a place to live in
    exchange for providing information to the officer.

[21]

The
    complainant understood from the police officer that either the charge against
    her for breach of recognizance would not proceed, would be withdrawn, or she
    would be found not guilty. This did not materialize, however, as the
    complainant was required to remain in custody and was later found guilty on a
    charge of breach of recognizance.

C.        TRIAL JUDGES
REASONS FOR CONVICTION

[22]

The
    trial judge noted that defence counsel had conceded that the conduct of the
    appellant, if proven beyond a reasonable doubt, constituted sexual assault.
    Defence counsel argued there was insufficient credible and reliable evidence to
    establish guilt beyond a reasonable doubt. Defence counsel further argued that
    the complainants evidence was neither credible nor reliable. In addition, the
    evidence of the complainants mother was unreliable because she did not see
    what was going on in the vehicle while she was speaking on the phone to her
    daughter.

[23]

The
    trial judge noted that the complainants evidence of where, when, and how the
    appellant touched her private areas inappropriately without her consent was
    uncontradicted and was not successfully challenged on cross-examination.
    However, he concluded that it would be dangerous and unsafe to find the
    appellant guilty based on the complainants evidence standing alone, given her
    condition of intoxication, her generally poor memory of other events that
    occurred before and after the alleged assault, and her demeanour while being
    interviewed by the police.

[24]

The
    trial judge went on to enumerate other independent evidence that is capable of
    confirming the victims complaint regarding the sexual assault:

1.

The appellants cell phone records confirmed that a call was
    placed to the residence of the complainants parents at 6:10 a.m. on February
    22, lasting over 20 minutes.

2.

The police seized a purse and clothing belonging to the
    complainant from the appellants vehicle when he was arrested on February 23.

3.

The complainants mother recognized the appellants voice during
    the telephone call.

4.

In response to the question inquiring as to their location, the
    complainants mother heard the appellant say that he had taken the complainant
    out to see the stars. This was suspicious given it was 6:10 a.m. and
    considering that he had told her he was too busy to drive her home.

5.

The complainant told her mother that the appellant was touching
    her and that she was scared.

[25]

With respect to this last piece of evidence, the trial judge went
    on to state:

I find that the mothers evidence is capable of confirming the
    victims allegations that the accused sexually assaulted her.  No matter how
    one views her conduct at the police station while she was being interviewed by
    the police, it cannot be said that the victim fabricated her allegations about
    what the accused had done to her in his vehicle earlier that day.

[26]

The
    trial judge concluded that the Crown had proven the appellants guilt beyond a
    reasonable doubt and found him guilty of sexual assault.

D.      CONVICTION
    APPEAL

[27]

There
    are two issues to consider on the conviction appeal.  I will address each in
    turn.

(1)

Did
    the trial judge err by basing the verdict on hearsay evidence?

(a)

Positions of the Parties

[28]

The
    appellant submits that the trial judge based the conviction on the inadmissible
    hearsay testimony of the complainants mother. The latter testified that her
    daughter had told her over the phone that the appellant had touched her. No
    argument was made about the admissibility of this statement at trial because
    the Crown sought to introduce the statement only for narrative purposes and did
    not seek to rely on it for the truth of its contents.  Nonetheless, the trial
    judge improperly considered the statement for the truth of its contents and as
    corroborative of the complainants testimony, as reflected by his following
    statement:

Finally, the victim told her mother that the accused was
    touching her and that she was scared. I find that the mothers evidence is
    capable of confirming the victims allegations that the accused sexually
    assaulted her.

[29]

The
    respondent submits that the complainants prior statement to her mother was
    properly admitted and considered by the trial judge as part of the narrative
    and in rebuttal to an allegation by defence counsel of recent fabrication. The
    defence position at trial was that the complainant had made a false claim of
    sexual assault to obtain favourable treatment from the police. Evidence in
    support of this position was elicited in the cross-examination of the
    complainant. Defence counsel, in response to a question from the trial judge,
    agreed that the trial judge could consider the complainants previous statement
    in considering the defence submission that she had fabricated her allegation.
    When admitted to rebut an allegation of recent fabrication, a prior consistent
    statement has a positive effect on the assessment of a witnesss overall
    credibility.  As such, the trial judge did not use the prior statement for an
    improper purpose.

(b)

Analysis

[30]

Prior
    consistent statements are declarations made by witnesses before they take the
    stand that are consistent with the testimony they give while on the stand:
    David M. Paciocco,
The Perils and
    Potential of Prior Consistent Statements: Lets Get It Right
(2013) 17 Can. Crim. L.R. 181, at p. 181.

[31]

Prior
    consistent statements are generally inadmissible.  Traditionally, they have
    been treated as inadmissible because they are out-of-court statements made in
    the absence of trial safeguards such as cross-examination and the taking of an
    oath or affirmation to tell the truth.  The hearsay rule precludes the
    admission of prior consistent statements for the truth of their contents.  Additionally,
    prior consistent statements lack probative value: see
R. v. Stirling,
2008 SCC 10, [2008] 1 S.C.R. 10,
at
    para. 5;
R. v.
Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788,
at para. 36.  Put differently,
    repetition of a statement by the same person does not render it more likely to
    be true or corroborative.  The repetition is self-serving and the source lacks
    independence.  Lastly, given that the evidence will have already been adduced
    at trial through oral testimony, exclusion of prior consistent statements
    serves the desirable objective of trial efficiency.

[32]

There
    are some exceptions to the rule that prior consistent statements are inadmissible.
    The exceptions exist because the purpose behind exclusion is not served. The
    two exceptions raised on this appeal are narrative and recent fabrication.

[33]

Before
    the trial judge, defence counsel (who is not counsel on appeal) properly
    conceded that the complainants statement to her mother was admissible for
    narrative purposes, but contended that the statement could not be relied on for
    the truth of its contents. In closing submissions at trial, defence counsel
    accepted that although hearsay, the trial judge was entitled to consider the
    complainants prior statement to her mother, but argued that the trial judge
    could not use the initial utterance on the telephone to bolster what is
    otherwise unreliable because the source is the same.

[34]

The
    statement was admissible both as narrative and to rebut the allegation of recent
    fabrication. As narrative, the statement is admitted as evidence of the fact
    that something was said or heard, but not tendered for the truth of what was
    said or heard:
Dinardo
, at para. 37,
R. v. J.A.T.
, 2012 ONCA
    177, 288 C.C.C. (3d) 1, at para. 99;
R. v. Magloir
, 2003 NSCA 74, 178
    C.C.C. (3d) 310, at para. 23.

[35]

In
R. v. OConnor
(1995), 25 O.R. (3d) 19 (C.A.), leave to appeal to
    S.C.C. refused, [1995] S.C.C.A. No. 460, Finlayson J.A. described the nature of
    an allegation of recent fabrication, at pp. 28-29:

[A]n allegation of recent fabrication is no more than an
    allegation that the complainant has made up a false story to meet the
    exigencies of the case. The word recent means that the complainants evidence
    has been invented or fabricated after the events in question and thus is a
    recent invention or fabrication. [Citation omitted.]

[36]

Where
    there is an allegation of recent fabrication in connection with a witness, a
    prior consistent statement is admissible to demonstrate that the witnesss
    story was the same prior to the alleged fabrication. An allegation of recent
    fabrication may be either express or implied to permit the admission of the
    prior consistent statement. The prior consistent statement has probative value because
    it illustrates that the witnesss story was the same even before a motive to
    fabricate arose: see
Stirling
, at
    para. 5;
R. v. J.A.T.
, at para. 98.

[37]

A
    prior consistent statement that is admissible to rebut an allegation of recent
    fabrication is not admitted to prove the truth of its contents. Rather, it
    neutralizes the challenge or allegation of recent fabrication. The evidence of
    the prior consistent statement is used to establish that the challenge is in
    error, not to show that the statement is true or that the witness is likely
    telling the truth because they said the same thing before. In this sense, the
    admission of the prior consistent statement may impact positively on the
    witnesss credibility insofar as admission of the statement removes a motive of
    fabrication. As Bastarache J. stated on behalf of the Supreme Court of Canada
    in
Stirling
,
at para. 7:

However, a prior consistent statement that is admitted to rebut
    the suggestion of recent fabrication continues to lack any probative value
    beyond showing that the witnesss story did not change as a result of a new
    motive to fabricate. Importantly, it is impermissible to assume that because a
    witness has made the same statement in the past, he or she is more likely to be
    telling the truth, and any admitted prior consistent statements should not be
    assessed for the truth of their contents.

[38]

The
    Hon. Justice David Paciocco describes the operation of the recent fabrication
    exception in his aforementioned article as follows, at p. 191:

Recent fabrication is a rebuttal rule.  If at the end of the
    case the decision-maker believes the prior consistent statement to have been
    made, it will neutralize the challenge to the litigants case without in any
    way adding corroboration, confirmation, or affirmative weight to the credibility
    or reliability of the witness who was challenged.  Their evidence remains in
    the state it was before the failed recent fabrication challenge.

Judges must therefore be cautious to avoid language which
    suggests they are treating the prior consistent statement as adding to the
    credibility of the witness.  Where judges do use terms such as supports or bolsters
    or strengthens, so long as it is clear from their decision as a whole that
    they are simply suggesting that the evidence of the witness is supported or bolstered
    or strengthened in the limited sense that the prior consistent statement
    shows their evidence to be more believable than if the recent fabrication
    challenge went unanswered, there will be no error.  If the comments go farther
    and imply that the prior consistent statement adds affirmatively to the
    credibility of the witness, the judge will fall into error.

[39]

For
    the reasons that follow, I conclude that the trial judge did fall into such
    error and improperly based his verdict on the hearsay evidence elicited from
    the complainants mother.

[40]

The
    complainants telephone conversation with her mother was admissible both as
    narrative and to rebut the allegation of recent fabrication. That said, the
    sole use to which the trial judge could put the prior consistent statement was
    to support the complainants credibility to the extent of rebutting the
    allegation of recent fabrication; it could not be admitted or used as evidence
    of the truth of its contents.

[41]

As
    mentioned, the trial judge stated that given the complainants condition of
    intoxication, her generally poor memory of other events that occurred before
    and after the alleged assault, and her demeanor while being interviewed by the
    police, it would be dangerous and unsafe to find the accused guilty of the
    offence charged based on her evidence standing alone.  He then went on to find
    that the mothers evidence concerning what her daughter said to her confirmed
    the complainants allegation that the appellant had sexually assaulted her.  Again
    to repeat, the trial judge stated:

Finally, the victim told her mother that the accused was
    touching her and that she was scared. I find that the mothers evidence is
    capable of confirming the victims allegations that the accused sexually
    assaulted her.  No matter how one views her conduct at the police station while
    she was being interviewed by the police, it cannot be said that the victim
    fabricated her allegations about what the accused had done to her in his
    vehicle earlier that day.

[42]

The
    trial judges comments go beyond merely finding that the prior consistent
    statement shows the complainants evidence to be more believable because it was
    not a recent fabrication. He expressly treated the mothers evidence of what
    her daughter had told her as an independent piece of evidence capable of
    confirming the complainants allegation of sexual assault.  This was an
    impermissible use of the prior consistent statement.  Having concluded that it
    would be dangerous and unsafe to convict based on the evidence of the
    complainant alone, he then proceeded to use the hearsay evidence as confirmatory.
    In my view, this was an error. As stated in
Stirling
, at paras. 11 and
    12:

This Court has found that [prior consistent] statements can be
    admitted
in support of
the witnesss credibility (
Evans
,
    at p. 643 [
R. v. Evans
, [1993] 2 S.C.R. 629]). What is clear from all
    of these sources is that credibility is necessarily impacted - in a positive
    way - where admission of prior consistent statements removes a motive for fabrication.
Although it would clearly be flawed
    reasoning to conclude that removal of this motive leads to a conclusion that
    the witness is telling the truth
,
it is permissible for this
    factor to be taken into account as part of the larger assessment of credibility.

[43]

I
    would therefore give effect to this ground of appeal.

(2)

Was
    the Verdict Unreasonable?

(a)  Positions of the Parties

[44]

The
    appellant submits that while the trial judge concluded that it would be
    dangerous to find the appellant guilty based on the evidence of the complainant
    standing alone, he did just that because none of the other factors he
    enumerated corroborated her allegation that he sexually assaulted her. As noted
    above, the trial judge pointed to the following items of independent evidence:

1.

The appellants cell phone records confirmed that a call was
    placed to the residence of the complainants parents at 6:10 a.m. on February
    22, lasting for over 20 minutes.

2.

The police seized a purse and clothing belonging to the
    complainant from the appellants vehicle when he was arrested on February 23.

3.

The complainants mother recognized the appellants voice during
    the telephone call.

4.

In response to the question inquiring as to their location, the
    complainants mother heard the appellant say that he had taken the complainant
    out to see the stars. This was suspicious given it was 6:10 a.m. and considering
    he had told her he was too busy to drive her home.

5.

The complainant told her mother that the appellant was touching
    her and that she was scared.  The trial judge found that the mothers evidence
    was capable of confirming the complainants allegation that the appellant
    sexually assaulted her.

[45]

According
    to the appellant, none of these factors corroborate the complainants testimony.
    He argues that for evidence to be corroborative, it must be independent from
    the impugned witness and it must be material, citing
R. v. B.(G.)
,
    [1990] 2 S.C.R. 57, at p. 78 and
R. v. Khela
, 2009 SCC 4, 1 S.C.R.
    104, at para. 39. The appellant argues that the first four factors are not
    material or probative of guilt. The fifth factor is inadmissible hearsay
    evidence and lacks independence. The verdict is therefore unreasonable because
    it is based on evidence that the trial judge found was insufficient to prove
    guilt, combined with both evidence that is not logically probative of guilt and
    inadmissible hearsay evidence.

[46]

The
    respondent accepts that the trial judge correctly concluded that it would be
    dangerous to convict on the basis of the complainants testimony standing
    alone, given the evidence of her drug use, her memory issues, and her motive to
    assist police. The respondent concedes that if there is no confirmatory
    evidence, the verdict was unreasonable. He submits, however, that the
    complainants evidence received ample support from admissible confirmatory
    evidence and thus the verdict is reasonable. According to the respondent,
    confirmatory evidence need not implicate an accused person in the offence.
    Rather, the critical question is whether the supporting evidence strengthens
    the belief that the suspect witness is telling the truth.

[47]

The
    first four factors considered by the trial judge were independent of the
    complainant and assisted in confirming her description of events.  The
    statement to her mother that the appellant was touching her was correctly used
    to support the inference that the complainants account was honest and not
    fabricated.  The trial judge properly found that the complainants testimony
    was confirmed by other evidence and, accordingly, the verdict is not
    unreasonable.

(b) Analysis

[48]

Pursuant
    to s. 686(1)(a)(i) of the
Code
, a court of appeal may allow the appeal
    where it is of the opinion that the verdict should be set aside on the ground
    that it is unreasonable or cannot be supported by the evidence. This subsection
    serves to protect against wrongful convictions; it is not a proxy for an
    appellate trial on the merits.

[49]

The
    test is whether the verdict is one that a properly instructed jury acting
    judicially, could reasonably have rendered:
R. v. Yebes
, [1987] 2
    S.C.R. 168, at p. 185 and
R. v. Biniaris
, 2000 SCC 15, at para. 36.

[50]

As
    noted by Rosenberg J.A. in
R. v. T.C
. (2004), 72 O.R. (3d) 623, at
    para. 34, this courts power to set aside a conviction on the basis that the
    trial judges assessment of credibility was unreasonable is limited. He went on
    to quote from McLachlin J. (as she then was) in
R. v. W. (R.)
, [1992]
    2 S.C.R. 122, at pp. 131-32:

It is thus clear that a court of appeal, in determining whether
    the trier of fact could reasonably have reached the conclusion that the accused
    is guilty beyond a reasonable doubt, must re-examine, and to some extent at
    least, reweigh and consider the effect of the evidence. The only question
    remaining is whether this rule applies to verdicts based on findings of
    credibility. In my opinion, it does. The test remains the same: could a jury or
    judge properly instructed and acting reasonably have convicted? That said, in
    applying the test the Court of Appeal should show great deference to findings
    of credibility made at trial. This Court has repeatedly affirmed the importance
    of taking into account the special position of the trier of fact on matters of
    credibility . The trial judge has the advantage, denied to the appellate
    court, of seeing and hearing the evidence of witnesses. However, as a matter of
    law it remains open to an appellate court to overturn a verdict based on
    findings of credibility where, after considering all the evidence and having
    due regard to the advantages afforded to the trial judge, it concludes that the
    verdict is unreasonable.

[51]

In
R. v. Burke
, [1996] 1 S.C.R. 474, at para. 7, Sopinka J. stated that a
    verdict based on a credibility assessment is unreasonable if the trial courts
    assessments of credibility cannot be supported on
any
reasonable view of the evidence (emphasis added). This statement of the law
    was reiterated by Cromwell J. in
R. v. W. H
., 2013 SCC 22, at para. 34.

[52]

Applying
    these principles to this case, I am unable to conclude that the verdict was
    unreasonable.

[53]

As
    mentioned, the respondent conceded that if there were no confirmatory evidence,
    the verdict was unreasonable. That said, the confirmatory evidence need not
    independently establish the actual offence:
Khela
, at paras. 41-43. It
    is sufficient if it serves to restore the trier of facts faith in the
    complainants recollection and perception of events.

[54]

While
    the hearsay evidence could not be relied upon for the truth of its contents,
    the complainants contemporaneous complaint to her mother and the first four
    factors enumerated by the trial judge could serve such a restorative purpose. The
    mothers evidence of the appellants evasive response to the complainants
    inquiry of their whereabouts coupled with his strange statement that he was
    taking the complainant to see the stars but was too busy to take her home could
    also serve to establish the accuracy of the complainants perception of events.
    Lastly, the prior consistent statement rebuts the allegation of recent
    fabrication. As such, it could be concluded that it was unlikely that the
    complainant was lying so as to obtain favourable treatment from the police.

[55]

Therefore,
    the verdict is one that a properly instructed jury, acting judicially, could reasonably
    have rendered.

[56]

Accordingly,
    I would not give effect to this ground of appeal.

E.        DISPOSITION

[57]

For
    these reasons, I would allow the appeal, set aside the conviction and order a
    new trial.

Released: September 26, 2013 JCM

S.E.
    Pepall J.A.

I
    agree J.C. MacPherson J.A.

I
    agree H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dunn, 2013
    ONCA 539

DATE: 20130904

DOCKET: C54975

Rosenberg, Sharpe, Gillese, Epstein and Strathy
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Christopher Dunn

Respondent

John McInnes, for the appellant

Solomon Friedman, for the respondent

Heard: June 19, 2013

On appeal from the acquittal entered on January 10, 2012
    by Justice Ann Alder of the Ontario Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1]

The Crown appeals from the judgment of Alder J. acquitting the
    respondent of various firearm charges. The appeal turns on the interpretation
    of two statutorily-defined terms: firearm and weapon. In section 2 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, these terms are defined correlatively, with
    each appearing in the definition of the other.

[2]

The Crown concedes that the trial judge correctly applied the law as
    laid down by this court in
R. v. McManus
(2006), 214 O.A.C. 77, [2006]
    O.J. No. 3175. The Crown argues, however, that
McManus
was wrongly
    decided and, in particular, failed to take into account the earlier decision of
    the Supreme Court of Canada in
R. v. Felawka
, [1993] 4 S.C.R. 199. Accordingly,
    this appeal proceeded before a five-judge panel to consider whether
McManus
should be reconsidered.

[3]

For the following reasons, I would allow the appeal, set aside three of
    the four acquittals and order a new trial on those charges. I would not
    interfere with the acquittal on the charge of pointing a firearm, which is
    unaffected by the legal error.

A.

THE FACTS

[4]

On April 23, 2010, private investigators working on behalf of the
    Workplace Safety Insurance Board were watching the respondent. The evidence of
    one of the investigators was that after running a number of errands, the
    respondent met with another man. Following a short conversation, the respondent
    pulled out what looked like a pistol from the side pocket of his jacket, and appeared
    to point it at the man. He then returned the pistol to his jacket, went back to
    his car, and drove away. The investigators were concerned about what they had
    seen and informed the Ottawa Police Service.

[5]

The police went to the respondents trailer. The officer who ultimately found
    and seized the apparent pistol in question testified that he saw a black
    handgun resting on a chair in plain view in a shed beside the trailer. Further
    investigation determined that the handgun was a Crosman Pro77 airgun that fires
    .177 calibre spherical BBs propelled by means of compressed air from a
    canister. The airgun was fully functional and loaded with a partly used CO2 cartridge.
    There was no ammunition in the magazine. The person the respondent had pointed
    the gun at was a friend. The respondent had not pointed the gun to threaten or
    intimidate him.

[6]

The airgun has a warning on the side:

Warning, not a toy, misuse can cause fatal injury. Before using
    read owners manual available from Crosman Corp. [Address omitted.]

[7]

A firearms examiner who gave expert evidence agreed in cross-examination
    that this type of airgun can be purchased without the purchasers having to
    produce any documentation, as long as the muzzle velocity does not exceed 500 feet
    per second (ft./s.). The respondents airgun had an average velocity of 261.41
    ft./s.

[8]

The expert gave evidence about a scientific study done to determine the
    velocity needed for a BB to penetrate the human eye  the so-called pigs eye
    study, which used pigs eyes because of their similar size and composition to
    the human eye. According to the studys findings, any shot exceeding 214 ft./s.
    was capable of causing serious injury. A BB shot travelling at this speed would
    penetrate the eye of a 10-month old pig some of the time. A BB travelling at
    246 ft./s. would penetrate the eye 50 percent of the time. The respondents
    airgun thus exceeded both thresholds.

[9]

The expert further testified that this particular airgun is built to
    closely resemble a Steyr MA1 9mm pistol, a conventional semi-automatic handgun.

[10]

The
    respondent was charged with the following offences: handling a firearm or
    imitation thereof in a careless manner, contrary to s. 86 of the
Criminal
    Code;
pointing a firearm, contrary to s. 87; carrying a weapon or
    imitation thereof for a purpose dangerous to the public peace, contrary to s.
    88; and carrying a concealed weapon or imitation thereof contrary to s. 90.

B.

THE TRIAL JUDGES REASONS

[11]

At
    trial, the respondent sought to exclude certain evidence, including the airgun,
    because of alleged violations of his rights under ss. 8 and 10(b) of the
Canadian
    Charter of Rights and Freedoms.
The trial judge did not find it necessary
    to deal with that issue because she was satisfied that the offences had not
    been made out. She observed that the offence of pointing a firearm  required
    proof that the airgun in question is a firearm, and that the other three counts
    required proof that the airgun was either a firearm or a replica firearm.
    Relying on
R. v. McManus
, as well as this courts decision in
R.
    v. Labrecque
2011 ONCA 360, the trial judge held that if the gun is not a
    real powder fired bullet shooting gun, the Crown must prove that it is a
    weapon, as defined in s. 2 of the
Criminal Code
, before any finding
    could be made that it is a firearm.

[12]

Section
    2 defines weapon as follows:

weapon
means any thing used, designed to be used
    or intended for use

(
a
) in causing death or injury to any person, or

(
b
) for the purpose of threatening or intimidating
    any person

and, without restricting the generality of the foregoing,
    includes a firearm;

[13]

The
    trial judge held that the Crown had failed to prove that the airgun was used or
    intended for use in any of the ways specified in s. 2. It was therefore not a
    weapon, and could not be a firearm. It was also not shown to be a replica
    firearm. The Crown does not challenge the finding that the gun was not a replica
    firearm, so no more need be said about it. Finally, the trial judge would have acquitted
    the respondent on the charge of pointing a firearm in any event because she was
    not satisfied, based on the evidence, that the respondent had actually pointed
    it at his friend.

C.

THE ISSUE

[14]

As
    mentioned, this appeal turns on the proper interpretation of the terms
    firearm and weapon in the
Criminal Code
. There is only one issue
    in this appeal: must an object (to use a neutral word) that falls within the
    definition of firearm in s. 2 also meet the definition for weapon in the
    same section. The interpretation issue arises from the fact that each
    definition refers to the other.

[15]

While
    the applicable definitions of firearm and weapon have evolved over time, to
    begin it is useful to look at the definitions as they currently appear in s. 2
    of the
Code
. I have set out the definition of weapon above, but
    repeat it here for clarity alongside the definition of firearm:

"firearm"
    means a barrelled
weapon
from which any shot, bullet or other
    projectile can be discharged and that is capable of causing serious bodily
    injury or death to a person, and includes any frame or receiver of such a
    barrelled
weapon
and anything that can be adapted for use as a firearm;

weapon
means any thing used, designed to be used
    or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any
    person

and, without restricting the generality of the foregoing,
    includes a
firearm
; [Emphasis added.]

[16]

Thus,
    because firearm is defined as a barrelled weapon, the question arises
    whether the prosecution must prove not only that the object discharges a shot,
    bullet or other projectile that is capable of causing serious bodily injury or
    death, but also that it meets subsections (a)

or

(b) in the definition
    of weapon; namely, that the object was used, designed to be used or intended
    for use in causing death or injury to any person or for the purpose of
    threatening or intimidating any person. Or, is the word weapon used in the
    definition of firearm only in a descriptive sense, such that it is not a
    formal element of the definition requiring proof? The definition of weapon,
    in turn, refers to firearm.  The concluding phrase in that definition,
    without restricting the generality of the foregoing, includes a firearm, appears
    to exclude the used, designed or intended for use requirements and deems a
    firearm to be a weapon.

D.

ANALYSIS

(1)

R. v. McManus
should be overruled

(i)

R. v.
    Felawka

[17]

The
    facts of
Felawka
can be briefly stated. The accused had been out
    shooting with his .22 calibre rifle. Returning home on the British Columbia
    Skytrain, he wrapped the rifle in his jacket so as not to alarm people. Even
    so, some of the other passengers saw that the accused was carrying a firearm
    and notified a Skytrain employee. While on the Skytrain, the accused made an
    unfortunate comment that aroused the concern of the employee. Police later arrested
    the accused on a connecting bus. The arrest could have gone very badly; the
    officers thought the accused was reaching for the rifle, which, as it turned
    out, was loaded. The accused was charged with carrying a weapon for a purpose
    dangerous to the public peace and unlawfully carrying a concealed weapon. The
    trial judge acquitted the accused of the first charge, but entered a conviction
    on the second charge. The accused appealed to the British Columbia Court of
    Appeal and then to the Supreme Court of Canada.

[18]

At
    the time Felawka was charged, the definitions of firearm and weapon were found
    in different parts of the
Code
. Weapon was defined in s. 2 in terms
    very similar to the present definition, except that the concluding phrase
    referred specifically to firearm as defined in then-section 84. Section 84, in
    turn, defined firearm in terms virtually identical to its present definition.
    The interaction between the two definitions was directly in issue. Chief
    Justice Lamer, dissenting, would have acquitted the accused on the basis that the
    Crown had not proved that he was carrying a concealed weapon even though the
    rifle was a firearm. He agreed with Gibbs J.A., the dissenting judge in the
    Court of Appeal, that a firearm only becomes a weapon if it is used or intended
    to be used to cause death or injury to, or to threaten or intimidate, a person;
    in other words, that it meets either of subsections (a) or (b) in the
    definition of weapon. Chief Justice Lamers reasons seemed to be heavily
    influenced by a concern that this narrower definition of weapon was required to
    avoid a clash with the fundamental justice guarantee in s. 7 of the
Charter
    of Rights and Freedoms.

[19]

Cory
    J., writing for the majority, rejected this approach. He considered that a
    firearm is always a weapon, irrespective of whether it comes within the requirements
    of subsections (a) or (b) in the definition of weapon.  As he stated, at p. 211:

A firearm is expressly designed to kill or wound. It operates
    with deadly efficiency in carrying out the object of its design. It follows
    that such a deadly weapon can, of course, be used for purposes of threatening
    and intimidating. Indeed, it is hard to imagine anything more intimidating or
    dangerous than a brandished firearm. A person waving a gun and calling
    "hands up" can be reasonably certain that the suggestion will be
    obeyed. A firearm is quite different from an object such as a carving knife or
    an ice pick which will normally be used for legitimate purposes. A firearm,
    however, is always a weapon. No matter what the intention may be of the person
    carrying a gun, the firearm itself presents the ultimate threat of death to
    those in its presence.

[20]

Cory
    J. was particularly influenced by three other matters. First, he referred to
    the offence in s. 88 (now s. 89) of the
Code
of having a weapon at a
    public meeting.  As he said, at pp. 211-12 :

The presence of a firearm at a public meeting would, in itself,
    present a threat and result in the intimidation of all who were present. It
    really cannot have been the intention of the framers of the legislation that
    people would be permitted to brazenly take their guns with them to public
    meetings provided that they did not use them or intend to use them to cause
    injury or to threaten or intimidate. Indeed, to state the proposition reveals
    that a definition with such a result is unthinkable.

[21]

Second,
    he was of the view that the French version of the definition of weapon, which
    is similar to the present French definition, supported his interpretation. That
    definition is as follows::

"arme"

a)
Toute
    chose utilisée ou qu'une personne entend utiliser pour tuer ou blesser une
    personne, qu'elle soit ou non conçue pour cela;

b)
toute
    chose utilisée pour menacer ou intimider quelqu'un;

le terme s'entend notamment d'une arme à feu
    au sens de l'article 84.

As he said the French version makes it crystal clear
    that a firearm is, by definition, a weapon: see at p. 212.

[22]

Finally,
    he was of the view that if the definition of weapon sought by the appellant
    were to be accepted then the concluding words of the definition which refer
    specifically to firearms as defined in s. 84 of the
Criminal Code
would be completely redundant: see
Felawaka
at p. 212. And Cory J.
    referred with approval to this courts decision in
R. v. Formosa
(1993), 79 C.C.C. (3d) 95. In
Formosa
, the court held as follows, at p.
    96:

In our view, all objects which are firearms as defined in s. 84
    of the
Criminal Code
come within the definition of "weapon"
    found in s. 2 of the
Criminal Code
:
R. v. Felawka
(1991), 68
    C.C.C. (3d) 481 at 493, 9 C.R. (4th) 291, 7 W.A.C. 241 (B.C.C.A.). Indeed the
    word "firearm" in s. 84 of the
Criminal Code
is defined in
    part as "any barrelled
weapon
". It follows that to be a
    "weapon" as defined in s. 2 of the
Criminal Code
, a firearm
    need not come within the terms of paras.
(a)
or
(b)
of the
    definition. Were s. 2 to be interpreted as the appellant contends, the
    concluding words of the definition which refer specifically to firearms as
    defined in s. 84 of the
Criminal Code
would be rendered redundant.

While not stated in the endorsement, it appears that
Formosa
was a pellet gun case: see
R. v. James
, 2011 ONCJ 125, at para. 11.
    One would have thought that
Felawka
and
Formosa
had settled
    the issue that arises in this case, were it not for two subsequent decisions
    from this court:
R. v. McManus
and
R. v. Labrecque
.

(ii)

R. v. McManus

[23]

McManus
    was convicted of carrying a concealed weapon contrary to s. 90(1). The facts
    are not set out in the courts brief endorsement but are found in the parties
    factums and the reasons of the trial judge. The accused and his companion were
    seen at an intersection in Ottawa. A motorist saw the accused take a pellet gun
    from his waist and place it in his backpack. The only evidence as to the nature
    of the pellet gun was given by the arresting officer who testified that it was
    a CO2 charged pellet gun and discharges plastic pellets. She could not
    testify as to the velocity achieved but commented that the velocity is such
    that if pointed at close proximity, you could cause injury, serious injury to
    the eye.

[24]

Speaking
    to whether the pellet gun was a weapon for the purposes of s. 90(1), the trial
    judge considered this courts decision in
Formosa
and interpreted
Formosa
as holding that all objects defined as firearms come within the
    definition of weapon found in Section 2. As disclosed in the
McManus
factums,
    no issue seems to have been taken with this proposition. Rather, the appellant argued
    that the arresting officers evidence did not prove that the pellet gun was a
    firearm since it had not been fired or tested to determine the velocity of
    pellets fired from the gun. In so arguing, the appellant referred to this
    courts decision in
R. v. Belair
(1981), 34 O.R. (2d) 302.
Belair
involved the entirely different issue of whether an inoperable pellet gun falls
    within the closing words of the definition of firearm as anything that can
    be adapted for use as a firearm. The reference to
Belair
was apparently
    to this courts observation that in that case testing had been done, which
    Martin J.A. described in these terms, at p. 303:

When tested by a police officer the pellets from the pistol went
    through a piece of 1/8 inch plywood at a distance of eight feet and penetrated
    1/4 of an inch in a one inch pine board. The pistol was accurate at 50 feet.
    The learned trial Judge found that the pistol is capable of causing serious
    bodily injury.

[25]

In
    its factum in
McManus
, the Crown referred to
Felawka
and the
    decision of the Quebec Court of Appeal in
R. v. Brouillard
(1980), 59
    C.C.C. (2d) 81 (Que. C.A.), which involved a conviction for the offence of
    using a firearm while committing an indictable offence contrary to s. 83, now
    s. 85(1), of the
Code
.  In that case, the accused had used an unloaded
    pellet gun. The accused was convicted even though there was apparently no
    evidence as to the muzzle velocity of the gun.

[26]

This
    issue, the sufficiency of evidence required to prove capacity to cause serious
    bodily injury, was not explicitly addressed by this court in its short
    endorsement in
McManus.
The core of the courts holding is found at
    paras. 3-5:

In convicting the appellant, the trial judge accepted the Crown's
    submission that the pellet gun seized from the appellant is a firearm. By
    definition, a firearm is a weapon within the meaning of s. 90(2) of the
Criminal
    Code
. The trial judge relied on his finding that the pellet gun is a
    firearm to conclude that it is a weapon for the purposes of s. 90.

In her evidence at trial, the police officer who seized the
    pellet gun from the appellant confirmed that it is discharged by a spring
    mechanism. In addition, she agreed that this type of pellet gun is "also
    referred to as a toy pellet gun."

The definition of "firearm" in the
Criminal Code
stipulates that a firearm is "a barrelled weapon ..." On the facts of
    this case, in our view, the trial judge erred in failing to consider whether
    the pellet gun seized from the appellant is a weapon prior to accepting the
    Crown's submission that it is a firearm. Further, in light of the record at
    trial and the trial judge's finding that there was no evidence that the
    appellant used the pellet gun for a purpose dangerous to the public peace, in
    our view, a finding that the pellet gun was a weapon was not available.

[27]

As
    is apparent, the endorsement does not refer to either
Felawka
or
Formosa
.
    However, one way of interpreting this endorsement, especially given the issues
    raised at trial, the evidence, and the arguments made in the written factums,
    is that this court considered that the Crown had failed to prove that the
    pellet gun was capable of causing serious bodily injury or death. Accordingly,
    the Crown could only obtain a conviction for carrying a concealed weapon if the
    pellet gun were shown to be a weapon within the definition of paras. (a) or (b)
    of s. 2. On this interpretation,
McManus
is consistent with both
Felawka
and
Formosa.
Subsequent cases have not, however, adopted this
    interpretation. Most important of these is this courts decision in
R. v.
    Labrecque
.

(iii)

R.
    v. Labrecque

[28]

In
Labrecque
, which also involved a charge of carrying a concealed weapon
    with respect to a pellet gun, the summary conviction appeal judge referred to
    both
Felawka
and
McManus
: 2010 ONSC 754. In light of
McManus
,
    he interpreted
Felawka
as being limited to conventional powder-fired
    bullet-shooting guns. Other objects that fell within the definition of firearm because
    they were capable of causing serious bodily injury or death also had to be
    proved to be weapons. As he said in his reasons, at paras. 9-10:

It seems to me that while the majority view in
Felawka
that a firearm is a weapon applies when the thing in issue is a real
    powder-fired bullet-shooting gun, when it is something like a spring-loaded or
    air-charged pellet gun, something designed for recreational purposes other than
    for intimidating, threatening, causing injury to or killing someone, then in
    order to find that it is a 'barrelled weapon,' there must be evidence that its
    use or intended use on the facts of the case was for such a purpose. In effect,
    that is what Bordeleau J. held in dismissing the charge, saying that there was
'...
    no evidence that the accused person in this case, Labrecque, "used the
    pellet gun for a purpose dangerous to the public peace
. That is consistent
    with the holding in
McManus
as well.

Notwithstanding the opinion of Cst. Bridgeman that the pellet
    gun Labrecque was carrying was a 'barrelled weapon' and that it could cause
    serious injury or worse, there was simply no evidence of Labrecque's intent
    that the gun was to be used for a harmful purpose as listed in the definition
    of weapon. It was not established, therefore, that he was carrying a concealed
    weapon. This appeal fails and must be dismissed.

[29]

On
    further appeal by the Crown, this court, at paras. 4-5 of its decision, agreed
    with the summary conviction appeal judge:

Before us, the Crown submits that a pellet gun is a firearm and
    therefore a weapon irrespective of the gun holder's subjective intention. If
    the pellet gun is capable of causing serious bodily injury, it is a weapon.
    Whether the gun holder used or intended to use it for a harmful purpose is
    irrelevant. However, in making this submission the Crown fairly acknowledges
    that to succeed on this appeal he must show that the reasoning in
McManus
is wrong. He points to the policy considerations discussed by the Supreme Court
    of Canada in
R. v. Felawka
(1993), 85 C.C.C. (3d) 248 (S.C.C.) and to
    a very brief endorsement of this court in
R. v. Henry
, [1991] O.J. No.
    2696 (C.A.), which was not referred to in
McManus
and arguably is
    inconsistent with it.

It seems to us that this court's later decision in
McManus
is controlling. It provides reasons, albeit brief, why a pellet gun is not a
    weapon unless used or intended to be used for a dangerous purpose. Although an
    endorsement of this court, it nonetheless has precedential value at least to
    the extent of dictating the result of this appeal. If
McManus
is to be
    overturned by this court, that must be done by a five-judge panel. Mr. Cappell
    did by letter request a five-judge panel but no formal application was made and
    his letter request was denied. If the issue arises again, the proper course is
    to make a formal application to the Chief Justice of Ontario or the Associate
    Chief Justice of Ontario for a five-judge panel. Sitting as a panel of three,
    we are bound by the reasoning and the result in
McManus
.

Accordingly, leave to appeal was denied.

(iv)

R. v. Henry

[30]

The
    facts of
R. v. Henry
, [1991] O.J. No. 2696 (C.A.),

the case

referred to in
Labrecque
, were as follows. The accused was
    charged with carrying a concealed weapon, that weapon being an airgun. While
    the accused was originally arrested during a robbery investigation, the facts
    accepted by the trial judge were that there had actually been no robbery; the
    accused had merely been using the airgun for target practice in his backyard,
    at his home not far from the scene. He then put the airgun in his pocket when
    he and a companion decided to walk to a garage to rent a car.

[31]

The
    trial judge had held that before the capabilities of the airgun could be considered
    (in other words, whether or not it could cause serious bodily injury or death
    to a person), the court had to determine whether either of paras. (a) or (b) in
    the definition of weapon was met. This was because a firearm is defined as
    a a barrelled
weapon
 (emphasis added). The trial judge therefore
    acquitted the accused, because there was no evidence as to what he intended to
    do with the airgun and it therefore could not be a weapon. The summary
    conviction appeal court judge allowed the appeal and entered a conviction. The
    issue before the court was precisely the issue that arises in this appeal.
    Conant D.C.J. dealt with the issue at length and concluded as follows, at p. 5
    of the unreported reasons for judgment:

In view of the above, I conclude that once it is established
    that the device in question is barrelled, can discharge any shot, bullet or
    other missile, and has the capability of causing serious bodily injury or
    death, it is a firearm within s. 82 and, therefore, it is automatically a
    weapon within s. 82. Hence, it is not necessary to look at the intention of the
    accused once it is proven that the object possesses these characteristics, as a
    firearm is deemed by s. 2 to be a weapon.

[32]

The
    accused appealed to this court. In a very brief endorsement, the court stated:
    We agree with the Summary Conviction Appeal Court Judge as to the meaning of
    the word firearm.

(v)

The
    Effect of
Felawka
and
McManus

[33]

To summarize the state of the law prior to
McManus
,
    this court, in both
Henry
and
Formosa
, two cases dealing with
    pellet guns or airguns, held that an airgun falls within the definition of weapon
    if it is proved to be a firearm, irrespective of whether it also meets paras.
    (a) or (b) in the definition of weapon. In
Felawka
, Cory J. speaking
    for the majority, expressly approved of the reasoning in
Formosa.

[34]

In
    my view, given this history,
Felawka
is controlling and an object,
    whether it is a conventional powder-fired gun or a spring or gas fired gun, will
    fall within the definition of firearm in s. 2 provided there is proof that any
    shot, bullet or other projectile can be discharged from the object and that it is
    capable of causing serious bodily injury or death to a person. I say this
    primarily because of the majoritys approval of
Formosa
, a case that
    involved a pellet or air gun and the very issue engaged in this case.
    Admittedly, some of the language used by Cory J. in
Felawka
is most
    easily applied to conventional firearms. But there is nothing in his decision
    that limits the definition of firearm to those types of weapons. Cory J. did
    not suggest that his reasoning was limited to conventional firearms and the
    reasoning, particularly in the reference to this courts decision in
Formosa
,
    suggests otherwise.  The interpretation of firearm was not
obiter
,
    and was central to the courts analysis of the accuseds appeal. The
    prosecution need not prove that the object also falls within paragraph (a) or
    (b) of the weapon definition.

[35]

The
    issues as framed in this case centred on whether
McManus
should be
    overruled. I have suggested a way in which
McManus
can be read in a
    manner consistent with
Felawka
and
Formosa
. On the other
    hand, the subsequent decision from this court in
Labrecque
understood
McManus
as adopting an interpretation of firearm and weapon that would require the
    Crown to prove that air guns fall within paragraph (a) or (b) of the weapon
    definition even though they would otherwise meet the definition of firearm in
    s. 2. So understood, it is my view, that
McManus
and
Labrecque
were wrongly decided. It does not appear that the issue was directly raised by
    the parties in
McManus
and the court did not deal with either
Felawka,
    Henry
or
Formosa
. In other words, this appeal falls within the
per
    incuriam
exception to
stare decisis
identified in
David
    Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co.
(2005), 76 O.R. (3d) 161 (C.A.) at
    para. 111. The decision in
McManus
meets the two conditions of the
per
    incuriam
exception: the panel deciding the earlier case did not refer to
    binding judicial authority, namely
Felawka, Henry
and
Formosa
,
    and it would have decided the case differently, given the binding nature of
Felawka.

(2)

Interpretation of
    Firearm and Weapon

[36]

Even
    if this court were not bound by
Felawka
and
Formosa,
I would
    interpret the relevant provisions in accord with those cases. The approach to
    statutory interpretation has been set out in any number of decisions from the
    Supreme Court of Canada. It begins with the well-known principle from Elmer A. Driedger,
Construction of Statutes
, 2nd ed., (Toronto: Butterworths, 1983) at p.
    87:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

[37]

As
    stated by Iacobucci J. in
Bell Express Vu Limited Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559 at paras. 26-28, this approach applies in a
    wide variety of interpretive contexts, including the interpretation of criminal
    statutes: see e.g.
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R. 45;
R.
    v. Davis
, [1999] 3 S.C.R. 759. Because Driedgers principle is the
    preferred approach, the principle of strict construction of penal statutes only
    applies where some ambiguity remains in the meaning of the provision after the
    contextual and purposive approach has been undertaken by the interpreting court:
Bell ExpressVu
, at paras. 28 and 30.

[38]

The
    modern approach requires the court to consider the grammatical and ordinary
    sense of the words used, the broader context having regard to the scheme and
    object of the Act, and the intention of Parliament.

(i)

The Scheme of the Legislation

[39]

Most
    of the firearm and weapons offences are now found in Part III of the
Criminal
    Code
. Other firearm and weapon offences are found in other parts of the
Code
,
    often in provisions where the involvement of a firearm or weapon aggravates an
    essential offence. An example would be the offence of assault with a weapon in
    s. 267 of the
Code
. One set of firearm offences that are not found in
    Part III are the discharging offences in ss. 244 to 244.2. The respondent, in
    particular, relied on this set of offences as demonstrating an intention by
    Parliament to treat airguns differently than barrelled weapons.  I will discuss
    those offences below.

[40]

To
    understand the scheme of the legislation it is helpful to identify the
    different ways in which Parliament deals with barrelled weapons. One way is by
    focusing on the capability of the object to cause serious bodily injury or
    death. The broad definition of firearm in s. 2, is any barrelled weapon from
    which any shot, bullet or other projectile can be discharged and that is
    capable of causing serious bodily injury or death to a person, including any
    frame or receiver of such a barrelled weapon and anything that can be adapted
    for use as a firearm. The evidence in this case was that a barrelled weapon is
    capable of causing serious bodily injury or death to a person if it fires a
    projectile at more than 214 ft./s. This is the so-called pigs eye test, which is
    a standard for determining the capabilities of a barrelled object for causing
    serious death or bodily injury. The evidence was that if the velocity was 246
    ft./s. the object would meet the V50 standard, which is the speed required
    for the projectile to penetrate the eye 50 percent of the time.

[41]

A
    second threshold is found in s. 84(3), which deems certain weapons not to be
    firearms for the purpose of various sections of the
Criminal Code
and
    the provisions of the
Firearms Act
. These
Code
sections
    contain offences related to the possession, trafficking, importing and
    exporting, and transfer of firearms; and failing to report or the false reporting
    of lost, found, or destroyed firearms. An example is the offence in s. 91 of
    possessing a firearm without being the holder of a licence or, in the case of a
    prohibited or restricted weapon, a registration certificate. One of the
    sections referred to in s. 84(3) also sets out the power of a peace officer to
    seize a firearm on a persons failure to produce an authorization, license or
    certificate for it: see s. 117.03. Weapons that are deemed not to be firearms
    for the purposes of these sections include antique firearms and devices that
    are designed exclusively for certain purposes and intended by the person in
    possession to be used exclusively for that purpose. For example, s. 84(3)(c)
    deems not to be a firearm a shooting device designed exclusively for the
    slaughtering of domestic animals and intended by the person in possession of it
    to be used exclusively for the purpose for which it is designed. Section 84(3)(d)
    also deems a broad range of barrelled weapons not to be firearms for the
    purposes of these sections of the
Code
and the
Firearms Act
,
    in the following terms:

(
d
) any other barrelled weapon, where it is proved
    that the weapon is not designed or adapted to discharge

(i) a shot, bullet or other projectile at a muzzle velocity
    exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules, or

(ii) a shot, bullet or other projectile that is designed or
    adapted to attain a velocity exceeding 152.4 m per second or an energy
    exceeding 5.7 Joules.

[42]

A
    velocity of 152.4 m per second is equivalent to 500 f./s. Certain high-powered
    airguns would exceed this threshold and would therefore be considered firearms
    for all purposes of the
Criminal Code
and the
Firearms Act
licensing regime.

[43]

To
    conclude, and leaving aside for the moment the interpretation issue that arises
    because of the mutual references to firearm and weapon in each of the s. 2
    definitions, one way of looking at the legislative scheme is by reference to
    three groups of barrelled objects:

[44]

Group
    One: Barrelled objects shooting a projectile with a velocity of less than 214
    ft./s. (or 246 ft./s., using the V50 standard) are not firearms because they
    are not capable of serious injury or death; these objects will only be
    considered weapons, and thus fall within a prohibition such as the concealed
    weapon prohibition in s. 90, if they meet paras. (a) or (b) in the definition
    of weapon.

[45]

Group
    Two: Barrelled objects shooting a projectile with a velocity of more than 214
    ft./s. (or 246 ft./s., using the V50 standard) are firearms, because they are
    capable of causing serious injury or death, whether or not they also meet paras.
    (a) or (b) in the definition of weapon; these weapons will fall within a
    prohibition such as that found in s. 90. Nevertheless, they will not be subject
    to the stricter licensing regime in the
Criminal Code
and the
Firearms
    Act
if they fall within one of the exemptions in s. 84(3), for example, if
    the velocity of the projectile does not exceed 500 f./s.

[46]

Group
    Three: Barrelled objects shooting a projectile with a velocity of more than 500
    f./s. These objects fall within the definition of firearm for all purposes of
    the
Criminal Code
and the
Firearms Act
and must be licensed
    accordingly. Some airguns and most powder-fired bullet shooting guns will fall
    with in this regime. At a minimum,
Felawka
has decided that the Group
    Three objects do not need to meet the para. (a) or (b) definition of weapon to
    be deemed to be weapons.

(ii)

The
    legislative history

[47]

The
    appellant and the respondent rely upon the legislative history of the weapon
    and firearm definitions to support their positions. I will briefly set out some
    of that history. In the end, while the history does not greatly assist, it does
    in my view, tend to support the appellants position in that it shows an
    intention to treat airguns as weapons, whether by explicitly including them in
    the definition of weapon or by scooping them up within the definition of
    firearm.

[48]

The
    earliest manifestation of this intention is in the definition of offensive
    weapon as it appeared in s. 3(r) of the
Criminal Code
as it was first
    enacted:
Criminal Code, 1892
, S.C. 1892, c. 29.

3(
r
) The expression offensive weapon includes any
    gun or other firearm,
or air-gun
, or any part thereof, or any sword,
    sword blade, bayonet, pike, pike-head, spear, spear-head, dirk, dagger, knife,
    or other instrument intended for cutting or stabbing, or any metal knuckles, or
    other deadly or dangerous weapon,
and

any instrument or thing
    intended to be used as a weapon
, and all ammunition which may be used with
    or for any weapon. R.S.C., c. 151, s. 1(c) [Emphasis added.]

[49]

While
    this definition distinguishes airguns from firearms, more important, in my
    view, is that Parliament intended airguns to come within the definition of
    offensive weapon irrespective of whether they also met the latter part of the
    definition, as intended to be used as a weapon.

[50]

Following
    reforms made to the
Criminal Code
in 1955, this intention to treat
    air-guns as weapons was maintained:
An Act respecting the Criminal Law
,
    S.C. 1953-54, c. 51. Section 2(29) of the 1955 Code provided:

(29) offensive weapon or weapon means

(a) anything that is designed to be used as a weapon, and

(b) anything that a person uses or intends to use as a
    weapon, whether or not it is designed to be used as a weapon,

and, without restricting the generality of the foregoing,
    includes a firearm, air-gun or air-pistol and ammunition for a firearm, air-gun
    or air-pistol;

[51]

The
    1955 Code contained a limited definition of firearm applicable only to
    certain provisions, as follows:

firearm means a pistol, revolver, or a firearm that is
    capable of firing bullets in rapid succession during one pressure of the
    trigger

[52]

This
    definition did not, for example, apply to the pointing a firearm offence in
    former s. 86, which made it an offence to point a firearm, air-gun or
    air-pistol at another person. At that time, therefore, the dictionary
    definition would apply to such an offence, meaning a weapon from which a shot
    is discharged by gunpowder (see for example the Merriam-Webster English
    Dictionary). Hence, the need to expressly refer to airguns in the weapon
    definitions.

[53]

It
    is only with the enactment of the
Criminal Law Amendment Act, 1968-69
,
    S.C. 1968-1969, c. 38,

when Parliament began to legislate with respect
    to firearms in a more comprehensive manner, that Parliament defined firearm
    in a more comprehensive way with reference to the capacity to injure. The
    definition, which is set out below, uses the word means. It would seem that
    Parliament no longer intended to rely upon the dictionary definition. And,
    there was no longer a need for separate references to airguns. Rather, firearms
    were, after this point, defined by their nature as a barrelled device and by their
    capacity for injury. The definition is similar to the present definition, and
    appeared after that time in s. 84 of the
Code
, as follows:

firearm means any barrelled weapon from which any shot,
    bullet or other missile can be discharged and that is capable of causing
    serious bodily injury or death to the person, and includes anything that can be
    adapted for use as a firearm

[54]

The
    next significant step in the legislative history is the
Criminal Law
    Amendment Act, 1977
, S.C. 1976-77, c. 53, which represents even greater
    regulations of firearms, introducing for example, the requirement of a firearm
    acquisition certificate. The definition of firearm, which was still found in
    s. 84, was somewhat expanded by inclusion of any frame or received of such barrelled
    weapon.

[55]

Finally,
    in 1995, Parliament enacted the
Firearms Act
, which, among other
    things, required registration and licencing of ordinary firearms and created
    the long gun registry. Among the consequential amendments to the
Criminal
    Code
was to move the definition of firearm to s. 2, so that it applies
    to the entire
Criminal Code
. This is the definition that is in force
    at this time, and is set out earlier in these reasons.

[56]

The
    respondents argument in this court depends heavily on the idea that sense can
    be made of the current definitions of weapon and firearm by reverting back to
    the dictionary definition of firearm. Given the legislative history, with
    Parliaments increasing movement towards greater and more comprehensive firearm
    legislation, I think it unlikely that Parliament intended to rely upon a
    dictionary definition wherever the defined term applied, as in the weapons and
    firearms Part of the
Criminal Code
.

(iii)

Object of the legislation

[57]

While
    the weapons and firearms provisions of the
Criminal Code
may have
    several purposes, including crime control, it seems to me that in the context
    considered here, i.e. whether barrelled objects comprising Group Two must meet the
    use or intended use requirements in the definition of weapon before they can
    be found to be firearms, the paramount objective of the legislation, like that
    of the related
Firearms Act
, is public safety: see
Reference re:
    Firearms Act (Can.),
2000 SCC 31, [2000] 1 S.C.R. 783 at para. 23.

[58]

Having
    regard to this objective, airguns that fall within Group Two because they are
    capable of causing serious bodily injury or death, ought to be subjected to
    rigorous regulation by virtue of their dangerous nature, even if, at the critical
    time, the person in possession does not have one of the intentions or purposes
    identified in paras. (a) or (b) in the definition of weapon.

[59]

Crown
    counsel provided a particularly good example. Section 86 of the
Code
makes
    it an offence to, among other things, use, carry or store a firearm in a
    careless manner or without reasonable precautions for the safety of other
    persons. If an airgun that otherwise meets the definition of firearm in s. 2
    because of its dangerous nature and its capability for causing injury, is not found
    to be a firearm because it does not also meet the use and intended use
    requirements in the definition of weapon, it escapes regulation under s. 86.
    It would be lawful to leave such a dangerous object in an area where children
    might have access to it, or to shoot it in a dangerous manner. Liability would
    attach only if someone actually was injured or killed. Such an interpretation
    would not be consistent with the public safety objective of the legislation.

[60]

Both
    the context of the legislative provisions respecting weapons and firearms and
    the legislative history set out earlier suggest that Parliament has intended to
    treat firearms as a special subset of weapons, subject to stricter regulation
    because of their inherent dangerousness. To require proof that barrelled
    objects, that are sufficiently dangerous to cause
serious
injury or
    death, are also weapons by virtue of either of paras. (a) or (b) in that definition,
    would frustrate Parliaments intention.

(iv)

The Grammatical and Ordinary Sense

[61]

The
    respondent submits that the grammatical or ordinary sense of the definitions of
    weapon and firearm at least create an ambiguity. I do not agree. Considered in
    context, the definitions are consistent with a rational scheme and, thus, are
    not reasonably capable of more than one meaning:
Bell ExpressVu
, at
    para. 29. I agree with the appellant that the way out of the alleged definitional
    loop is to treat the term weapon in the definition of firearm as simply a
    descriptor rather than a formal element.

[62]

That
    Parliament must have intended this result is apparent from the concluding words
    of the definition of weapon itself: and, without restricting the generality
    of the foregoing, includes a firearm. This phrase would be meaningless if the
    object in question had to meet the statutory definitions of both firearm and
    weapon in order to be found to be a firearm. Such an interpretation would be
    inconsistent with the presumption against tautology. As Ruth Sullivan explains in
    her text
Sullivan on the Construction of Statutes
, 5th ed. (Markham,
    Ont: LexisNexis Canada, 2008) at p. 210, the effect of this presumption is that
    courts should avoid, as much as possible, adopting interpretations that would
    render any portion of a statute meaningless or pointless or redundant. In my
    view, applying this presumption assists in resolving any apparent ambiguity.

[63]

Treating
    the word weapon in the definition of firearm as a descriptor also avoids the
    problem that, otherwise, the term firearm becomes a component in its own
    definition. As Crown counsel points out, inserting the weapon definition in the
    firearm definition results in the following absurdity:

firearm means a barrelled thing that is used, designed to be
    used or intended for use (
a
) in causing death or injury to any person,
    or (
b
) for the purpose of threatening or intimidating any person and,
    without restricting the generality of the foregoing, includes a firearm from
    which any shot, bullet or other projectile can be discharged and that is
    capable of causing serious bodily injury or death to a person, and includes any
    frame or receiver of such a barrelled weapon and anything that can be adapted
    for use as a firearm

[64]

The
    respondent rightly points to a group of provisions that distinguish between
    airguns and firearms, suggesting that Parliament did not intend that any airgun
    that met the serious bodily injury or death element of the firearm definition
    was a firearm unless it also met the weapon definition. An example is found in
    present ss. 244 and 244.1, as am. by S.C. 1995, c. 39, s.144. The former
    creates the offence of discharging a firearm at a person with, among other
    things, the intent to wound, maim or disfigure. Section 244.1 creates the
    separate offence of discharging an air or compressed gas gun or pistol with
    the same intent as under s. 244. In my view, however, the better view of these
    sections is to see them as providing a flexible scheme to account for the
    usually less dangerous circumstances in which the offender makes use of an air
    gun. Section 244, as presently drafted, carries a minimum punishment of at
    least four years imprisonment and, where other types of firearms are used, even
    high minimum punishments. Section 244.1 by contrast does not carry any minimum
    punishment. Section 244.1 gives the prosecution the option to proceed with the
    lesser offence where circumstances do not call for the harsher penalty. There
    are other examples in the
Criminal Code.
For example, s. 335 creates
    the summary conviction offence of what is sometimes termed joy-riding. Given
    the broad definition of theft in s. 322, some conduct amounting to joy-riding could
    also constitute the indictable offence of theft under s. 334: see
R. v.
    LaFrance
, [1975] 2 S.C.R. 201.

[65]

The
    respondent also points to the offences created by s. 244.2. For example, s.
    244.2(1)(a) makes it an offence to discharge a firearm into or at a place
    knowing that, or being reckless as to whether, another person is present in the
    place. Where a non-restricted and non-prohibited firearm is used, the offence
    carries a minimum punishment of four years imprisonment. The respondent
    submits that Parliament could not have intended that use of an airgun, even one
    that is capable of causing serious injury or death, would attract this level of
    punishment, unless the firearm also fell within the definition of weapon.
    Section 244.2 reflects the seriousness with which Parliament views firearms
    offences. It is open to Parliament to include within the ambit of the s. 244.2
    offences airguns capable of causing serious injury or death. Whether the
    minimum punishment is excessive may raise constitutional issues, but does not,
    in my view, assist with the interpretation issues in this case.

(v)

Conclusion

[66]

To
    conclude, in my view, there is no ambiguity in the definition of firearm in s.
    2 when regard is had to the legislative history and the context and scheme of
    the legislation. Barrelled objects that meet the definition of firearm in s. 2
    need not also meet the definition in para. (a) or (b) of weapon to be deemed to
    be firearms and hence weapons for the various weapons offences in the
Code
,
    such as the offences charged against the respondent in this case.

E.

Disposition

[67]

Accordingly,
    I would allow the appeal, set aside the acquittals on counts 1, 3 and 4
    (careless handling of a firearm, carrying a weapon for a purpose dangerous to
    the public peace, and carrying a concealed weapon) and order a new trial on
    those charges. I would not interfere with the acquittal on count 2 of pointing
    a firearm given the trial judges finding of fact that the respondent did not
    point the firearm at his friend.

Released: MR September 4, 2013

M. Rosenberg J.A.

I agree. R.J. Sharpe
    J.A.

I agree. E.E.
    Gillese J.A.

I agree. G.J.
    Epstein J.A.

I agree. G.R.
    Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Green, 2013 ONCA 591

DATE: 20130926

DOCKET: C54651

Rosenberg, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Green

Applicant/Appellant

Peter Lindsay, for the appellant

Gavin MacDonald, for the respondent

Heard: September 18, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court dated November 8, 2011 by Justice M. Code of the Superior Court of
    Justice, dismissing the appeal from the conviction entered on October 7, 2010
    by Justice J. Sutherland of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellant that Code J. did misapprehend the
    appellants evidence at trial as to the nature of the conduct.  We do not see
    that the appellant admitted an assault at trial.  For that reason, we grant
    leave to appeal.

[2]

However, we are of the view that despite this error by the summary
    conviction appeal court judge, the appeal should be dismissed.  The reasons of
    the trial judge are sufficient and disclose no error.  The reference to the
    appellants silence was, as the summary conviction appeal court judge said,
    merely use of a prior inconsistent statement.  The trial judge could find that
    the evidence of the appellant was inconsistent with the 911 call and the
    statement to the officer.  Assessment of the value of the evidence was a matter
    for the trial judge.

[3]

Given the nature of the trial and the issues, the assessment of the
    evidence of the complainant was also sufficient.

[4]

Accordingly, while leave to appeal is granted, the appeal is dismissed.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hanson, 2013
    ONCA 577

DATE: 20130926

DOCKET: C54445

Rosenberg, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damian Hanson

Appellant

David E. Harris, for the appellant

Randy Schwartz, for the respondent

Heard: September 18, 2013

On appeal from the conviction entered on July 26, 201 by
    Justice Fred Graham of the Superior Court of Justice.

ENDORSEMENT

[1]

At the conclusion of oral argument, we dismissed the appeal with reasons
    to follow. These are those reasons.

[2]

In this case the appellant and the complainant told diametrically
    opposed stories. She told a story of a demand for oral sex followed by forced
    sexual intercourse to which she did not consent. It is not correct to describe
    her testimony as equivocal on the issue of consent.

[3]

The appellant told a story of being sexually assaulted by the
    complainant who forced him to engage in oral sex without his consent and then
    forcibly engaging in intercourse again without his consent. In those
    circumstances the issues were centred on credibility and that is how the trial
    judge, quite properly approached the case.  The elements of the complainants
    evidence that the appellant relies upon as supporting consent, when considered
    in context did not negative consent but were at most issues going to
    credibility.

[4]

The trial judge gave lengthy reasons which did not simply review the
    relevant evidence but analyzed that evidence and explained why he accepted the
    complainants evidence and rejected the appellants evidence. The trial judge
    expressly referred to that evidence from the complainant which the appellant
    says was supportive of the defence of consent. The fact that the trial judge
    referred to that evidence in the context of credibility assessment and bias did
    not demonstrate that he was not alive to its importance.

[5]

The appellant submits that the trial judge erred in failing to consider
    that the complainant was less inhibited and therefore more likely to have
    consented because she drank two bottles of beer. But, this issue was never put
    to the complainant and there was no evidence from any witness, including the
    appellant, that the complainants behaviour was affected by the consumption of
    alcohol. In a similar vein, the appellant argues that the trial judge failed to
    give sufficient weight to the 15-year-old complainants motive to lie out of
    humiliation or embarrassment from having lost her virginity to a 20-year-old
    stranger. We disagree. The chronology of events simply does not support the
    appellants position.

[6]

The trial judge was entitled to consider the complainants demeanour
    immediately after the assault, when she was able to get free from the
    appellant. That demeanour was inconsistent with consent.

[7]

The trial judge explained why mistaken belief in consent was not
    available in this case. That defence did not arise from the appellants
    evidence or the complainants. This was not a case where it was possible to
    splice together pieces of the evidence of the appellant and complainant that
    would be capable of supporting the defence of mistake, see
R. v. Park
,
    [1995] 2 S.C.R. 836.

[8]

Finally, while the trial judge may have placed considerable emphasis
    upon the appellants evidence about a sweater,  we cannot say that his
    conclusion was unreasonable. More importantly, as the respondent points out,
    this was but one of a number of internal and external inconsistencies that led
    the trial judge to reject the appellants evidence. The central reason the trial
    judge rejected that evidence was because it was simply incredible.

[9]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hill, 2013 ONCA 572

DATE: 20130924

DOCKET: C56846

Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John James Rodney Hill

Appellant

Russell Silverstein, for the appellant

Michael Bernstein, for the respondent

Heard:  September 11, 2013

On appeal from the sentence imposed by Justice Lesley M.
    Baldwin of the Ontario Court of Justice, dated March 26, 2013.

ENDORSEMENT

[1]

The appellant argues that the sentence of eight years, in addition to
    the nine months he had spent in custody prior to trial, imposed for offences
    (break and enter and commit robbery, forcible confinement and assault resist
    arrest) he committed in the context of a home invasion is unfit.  He points to
    the fact that the sentence imposed exceeded the Crowns request for a sentence
    in the eight-year range.

[2]

At the time of the offences, the appellant was 28 years of age and of no
    fixed address.  He broke into the home of an 86 year old, legally blind woman,
    to, among other things, steal alcohol.  He confined the victim for a period of
    4 to 5 hours.  He kicked her dog, waved a knife at her and threatened her with
    bodily harm.  The victim was finally able to access a telephone, and called
    911.  As the police arrived, the appellant put the victim in a choke-hold,
    kicked her, and pushed her down some stairs and to the ground.  He straddled
    her and held a large kitchen knife to her throat.  The victim cut her hand as
    she struggled to free herself and sustained bruising.  She continues to suffer
    trauma as a result of this incident and has moved to live with her son in
    Toronto.

[3]

We first note that the Crown acknowledged in the course of its
    sentencing submissions that it had formulated its 8-year position before it had
    reviewed a copy of the mental health and risk assessment ordered by the trial
    judge.  That report found that there was no evidence that the appellants
    criminal behaviour was linked to an overtly psychotic process and that the
    appellant is at
high
risk to re-offend, both
    generally and violently.  High risk means a 76 percent chance of the
    appellant re-offending within one year of release.  The trial judge put counsel
    on notice that she was considering whether, in light of that report, a sentence
    of eight years was sufficient, and reserved her reasons for sentence.  It was
    open to counsel to have made further submissions.  And it is clear from the
    trial judges reasons for sentence that it is because of this report that she
    exceeded the sentence proposed by the Crown.

[4]

The sentencing objectives of protection of the public, general
    deterrence and denunciation are given priority in home invasion cases.  Sentences
    in such cases have fallen within a range of as low as four or five years, to as
    high as 11 to 13 years:
R. v. Wright
(2006)
, 83 O.R. (3d) 427 (C.A.), at paras. 23 and 24. This broad
    and loose range reflects the fact that a home invasion can be committed in a myriad
    of ways, by a wide range of offenders.  As Blair J.A. wrote, at para. 24 of
Wright
,
    sentencing in a home invasion case require[s] a careful examination of the circumstances
    of the particular case in question, of the nature and severity of the criminal
    acts perpetrated in the course of the home invasion, and of the situation of the
    individual offender.

[5]

In this case, the trial judge carefully examined both the circumstances
    of the crime and the situation of the appellant, including his risk of
    re-offending.  In doing so, she also considered the relevant mitigating
    factors: the inculpatory statement that the appellant provided to the police
    and his guilty plea.  We are not persuaded that the sentence imposed was unfit.

[6]

We, accordingly, grant leave to appeal sentence, but dismiss the appeal.

Alexandra
    Hoy A.C.J.O.

Marc Rosenberg J.A.

Robert J. Sharpe J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jones, 2013
    ONCA 545

DATE: 20130906

DOCKET: C56886

Laskin, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leroy Jones

Appellant

Jill Gamble, for the appellant

Michael Fawcett, for the respondent

Heard: September 5, 2013

On appeal from the conviction entered on January 21, 2013
    by Justice Julia A. Morneau of the Ontario Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

The sole issue on this appeal is whether the Crown proved intent to cause
    serious bodily harm. The trial judge addressed this issue and on a fair reading
    of her reasons found intent had been proved. The evidence of the victim supported
    this finding. Accordingly the appeal is dismissed.