COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Romano, 2021 ONCA 211

DATE: 20210408

DOCKET: C65842

Strathy C.J.O., Watt and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Remo Romano

Appellant

Brian Greenspan and James Foy, for the
    appellant, Remo Romano

Holly Loubert, for the respondent, the
    Crown

Heard: November 13, 2020

On appeal from the conviction entered by
    Justice Todd Ducharme of the Superior Court of Justice, sitting with a jury, on
    January 24, 2018 and from the sentence imposed by Justice Brian P. OMarra of
    the Superior Court of Justice on September 13, 2018 with reasons reported at 2018
    ONSC 5172.

Zarnett J.A.:

I.

Introduction

[1]

On the evening of February 12, 2014, the appellant,
    a police officer, was driving an unmarked vehicle on a Toronto street as part
    of a police surveillance team. Having fallen behind the team, and in an effort
    to catch up, he accelerated to about 115 kilometres per hour (km/h) in a zone
    with a posted speed limit of 60 km/h. His vehicle struck and killed Ms. Carla
    Abogado.

[2]

Ms. Abogado had nothing to do with the police
    surveillance. At the time of the fatal collision, she had been on her way home
    from work and was crossing the street (but not at an intersection)
[1]
after exiting a Toronto Transit
    Authority (TTC) bus.

[3]

The appellant was charged with dangerous
    operation of a motor vehicle causing death, contrary to what was then s. 249(4)
    of the
Criminal

Code

of Canada
, R.S.C., 1985, c.
    C-46.
[2]
He has been tried three times for this offence.

[4]

At his first trial, the jury was unable to agree
    on a verdict.

[5]

At his second trial, the appellant was
    acquitted, but the Crown successfully appealed to this Court. The acquittal was
    set aside, and a new trial directed:
R. v. Romano,
2017 ONCA 837, 142
    W.C.B. (2d) 539 (
Romano

2017
).

[6]

At his third trial, the appellant was convicted
    and received a custodial sentence of eight months.

[7]

The appellant appeals both his conviction and
    sentence.

[8]

The conviction appeal relates to the trial
    judges charge to the jury. The appellant submits that the trial judge
    improperly focussed the jury on the consequences of his driving and whether the
    specific accident was foreseeable and avoidable, rather than on the proper questions
     whether the manner of his driving was dangerous to the public and was a
    marked departure from the required standard in the circumstances. The appellant
    also submits that the trial judge failed to provide proper guidance to the jury
    on how to determine what would constitute a marked departure from the
    required standard.

[9]

On the sentence appeal, the appellant submits
    that the circumstances did not require an eight month, or any, term of
    imprisonment. He argues that this court should reduce his sentence or substitute
    a conditional sentence.

[10]

For the reasons that follow, I would dismiss
    both the conviction appeal and the sentence appeal.

II.

BACKGROUND

[11]

In order to put the issues to be decided into
    context, I begin with an outline of the elements of the offence of dangerous
    driving causing death. I then turn to a description of the circumstances of the
    offence and the theories advanced at trial. Against that backdrop, I address
    the grounds of appeal and why, in my view, they should be rejected.

(1)

Dangerous Operation of a Motor Vehicle Causing
    Death

[12]

At the relevant time, ss. 249(1) and (4) of the
Code
provided:

249 (1) Every one commits an offence
    who operates

(a) a motor vehicle in a manner that
    is dangerous to the public, having regard to all the circumstances, including
    the nature, condition and use of the place at which the motor vehicle is being
    operated and the amount of traffic that at the time is or might reasonably be
    expected to be at that place.

(4) Every one who commits an offence
    under subsection (1) and thereby causes the death of any other person is guilty
    of an indictable offence and liable to imprisonment for a term not exceeding
    fourteen years.

[13]

It was conceded at trial that the appellants
    operation of the vehicle caused Ms. Abogados death. The only issue was whether
    the appellants driving met the elements of the offence of dangerous operation
    of a motor vehicle. The Supreme Court of Canada described these elements in
R.
    v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49 and
R. v. Roy
, 2012 SCC
    26, [2012] 2 S.C.R. 60.

[14]

The
actus

reus
is established
    when the accuseds conduct, viewed objectively, meets the standard in s.
    249(1)(a) of the
Code
of driving in a manner dangerous to the public,
    having regard to all the circumstances, including the nature, condition and use
    of the place at which the motor vehicle was being operated and the amount of
    traffic that at the time was or might reasonably have been expected to be at
    that place:
Beatty
, at paras. 43, 45;
Roy
at para. 28.

[15]

The offence also requires that the accuseds
    objectively dangerous driving be accompanied by the required
mens

rea
.
That will be present where the degree of care exercised by the accused was
    a marked departure from the standard of care that a reasonable person would
    observe in the accuseds circumstances:
Beatty
, at para. 43. While
    the distinction between a mere departure from the standard of care, which would
    justify civil liability, and a
marked
departure justifying criminal
    punishment is a matter of degree, the lack of care must be serious enough to
    merit punishment:
Roy
at para. 28 (emphasis in original). The risks
    created by the manner of driving, and their foreseeability, are an important
    part of the analysis. (T)he trier of fact must be satisfied that a reasonable
    person in similar circumstances ought to have been aware of the risk and of the
    danger involved in the conduct manifested by the accused:
Beatty
, at
    para. 43.

(2)

The Circumstances of the Offence

[16]

The appellant was 46 years old at the time of
    trial. He was an experienced police officer who joined the York Regional Police
    in 2003. He had received surveillance training and had participated in a
    significant number of surveillance operations.

[17]

On the evening of the collision, the appellant
    was part of a team of officers who were engaged in undercover mobile surveillance
    of a van suspected of involvement in unarmed, non-violent break-ins at several
    retail outlets. The teams purpose was to gather information. The circumstances
    were not considered urgent nor to involve risks to public or police safety. No
    arrests were immediately contemplated.

[18]

During the surveillance, the appellant and one
    other officer fell behind the other team members. The appellant testified that
    it was important for team members to stay close as they depended on radio
    contact with each other.

[19]

The appellants vehicle was travelling eastbound
    in the passing lane on St. Clair Avenue East, in the vicinity of Victoria Park
    Avenue. St. Clair is a four-lane road with two lanes for each direction. The
    evening was clear, the area moderately well lit, and the road dry with some wet
    spots.

[20]

To catch up with the other team members, the
    appellant decided to accelerate. He was travelling at 80 to 90 km/h when he
    reached the intersection of St. Clair and Victoria Park, and then progressively
    faster as he continued in an easterly direction on St. Clair, through a section
    (west of Herron Avenue) that had a posted speed limit of 50 km/h and then, on a
    green light, through the intersection of St. Clair and Herron to an area with a
    posted speed limit of 60 km/h. The appellant was familiar with the area; he
    knew it had residential houses on the south side of St. Clair and a healthcare
    facility on the north side. He did not activate his emergency lights or siren,
    given that he was involved in undercover surveillance.

[21]

The Crowns accident reconstruction expert
    testified that at the time the collision occurred on St. Clair just east of the
    intersection with Herron, the appellant had reached a speed of about 115 km/h
    and was still accelerating.

[22]

Ms. Abogado got off a TTC bus at the bus shelter
    just east of Herron on the north side of St. Clair. This was about 40 metres
    from her house. She proceeded to jaywalk across St. Clair toward its south
    side. She was wearing dark, non-reflective clothing.

[23]

The appellants vehicle struck Ms. Abogado just
    as she crossed the centre line of St. Clair into the eastbound passing lane.
    Her body was thrown nearly 80 metres. She died almost instantly.

[24]

The appellant testified that as he approached
    the intersection of St. Clair and Herron, he saw nothing in front of him and so
    he proceeded. The appellant did not see Ms. Abogado until just before the
    collision. He did not apply the brakes and only started to swerve less than one-half
    second before the collision took place. He admitted that, at the speed he was
    travelling, even if he had seen a pedestrian in the roadway, he could not have
    done anything to avoid a collision.

[25]

The appellant agreed that it was foreseeable
    that someone would be jaywalking on St. Clair that evening, as jaywalkers are generally
    foreseeable. He stated that he was focussed on the roadway ahead of me and
    did not account for hazards such as pedestrians and jaywalkers, or traffic
    pulling out or making sudden lane changes.

[26]

The Crowns accident reconstruction expert
    testified that at the speed the appellant was driving and given when an
    unalerted driver would have seen a pedestrian in the circumstances, the
    collision was unavoidable as there was insufficient distance to stop the
    vehicle. He testified that the collision would have been avoidable if the
    appellant had been travelling at 80 km/h or less.

(3)

The Competing Positions at Trial

[27]

The parties did not contest, at trial or in this
    court, that the
Highway Traffic Act
exempts police officers from the
    requirement to comply with posted speed limits in the performance of their
    duties, but does not exempt them from criminal offences such as dangerous
    driving; that police officers must always act reasonably and prudently; and
    that police are subject to a higher standard of care when exercising their
    privilege to drive faster than the speed limit.

[28]

The Crowns theory was that the appellants
    driving was objectively dangerous to the public, that the appellant should have
    foreseen the risks created by his driving and taken steps to avoid them, and
    that his failure to do so was a marked departure from what a reasonably prudent
    police officer in his circumstances would have done. The Crown relied on the common
    sense reality that a jaywalking pedestrian at St. Clair and Herron was foreseeable,
    given that it was, to the knowledge of the appellant, a residential area with a
    health centre and townhouses; that the posted speed limit which other motorists
    and pedestrians would expect vehicles to be travelling at was 60 km/h (the
    appellant believed it was 50 km/h); that the speed that the appellant was
    travelling gave him insufficient time to do anything about a hazard in the
    roadway even if observed from a distance of 85 metres; that the appellant was
    involved in low risk and non-urgent surveillance; and, that there were options
    available to the appellant instead of accelerating to that speed in that area
    to catch up to the rest of the team.

[29]

The theory of the defence was that the
    appellants driving did not meet the elements of the offence. Police officers
    are permitted by law to exceed the speed limit in the lawful performance of
    their duties and are not required to activate emergency lights or sirens. The
    appellant, who was part of an undercover police surveillance team, drove at the
    speed he did without activating emergency equipment because he had fallen
    behind the rest of the team, the traffic signal at St. Clair and Herron was
    green, and the road appeared clear of vehicles and pedestrian traffic. The
    appellants position was that Ms. Abogado made a fateful decision to cross
    the street, and her death was the direct result of this unexpected event. The
    defence relied on the inability of the Crowns expert to answer the question:
    What is a safe speed to avoid an unexpected event?

III.

THE CONVICTION APPEAL

[30]

The appellant submits that the trial judge erred
    in two respects when instructing the jury.

[31]

First, he argues that the trial judge erred by
    inviting the jury to consider the consequences of the appellants driving  whether
    this particular collision was avoidable, and specifically, whether the
    appellant should have foreseen Ms. Abogado and avoided her  rather than addressing
    whether the manner of driving was objectively dangerous to the public and a
    marked departure from the standard of care.

[32]

Second, the appellant submits that the trial
    judge failed to give the jury the necessary guidance on what was required to determine
    whether the appellants driving was a
marked
departure from the standard
    of care.

(1)

Did the trial judge improperly focus the jury
    on the wrong questions?

[33]

As the Supreme Court explained in
Beatty
,
    the issue in a dangerous driving case is the manner of driving, not the
    consequences. The consequences may elevate the offence to one covered by s.
    249(4), and may otherwise be relevant to assist in assessing the risk involved.
    However, (t)he court must not leap to its conclusion about the manner of
    driving based on the consequence. The consequences do not answer the question
    whether or not the vehicle was operated in a manner dangerous to the public:
Beatty
,
    at para. 46; see also
R. v. Anderson
, [1990] 1 S.C.R. 265 at p. 273.

[34]

These principles were applied in this courts
    decision in
Romano
2017
, reversing the appellants acquittal at
    his second trial. Paciocco J.A., writing for the court, explained that for both
    the
actus

reus
and
mens

rea
of dangerous driving, the focus should be on the manner of driving, not the
    consequences or the cause of those consequences: at paras. 68-69. A consequence
    can verify the nature of the risks that existed but should not be used in
    determining whether the manner of driving was dangerous or in marked departure
    from the norm. In assessing the dangerousness of the driving the relevant risk
    is not the risk that the specific accident event would materializewhat is of
    interest is danger to the public generally: at para. 72.

[35]

The charge at the second trial failed to observe
    these requirements. Although it at times referred to the general manner of
    driving and the general risks created, it gave undue focus to the collision,
    and to questions of responsibility for the collision, when it should have
    focused on [the appellants] driving, and whether that driving constituted a
    marked departure from the standard of care expected of a police officer in [the
    appellants] circumstances: at para. 74. The charge had focused the jury on
    the risk posed by Ms. Abogados jaywalking, and not the general risks to the
    public that may have been posed by [the appellants] manner of driving: at
    para. 76.
It put an improper focus on the foreseeability and
    avoidability of the collision with Ms. Abogado: at para. 80, and contained a misdirected
    and misleading focus on the consequence or collision, and on the
    blameworthiness of Ms. Abogado...: at para. 83.
[3]

[36]

The charge at the second trial thus invited the
    jury to:

evaluate the dangerousness of the driving and
    the degree of departure from the norm by examining the circumstances of the
    collision rather than the manner of [the appellants] driving[giving] emphasis
    to the conduct of Ms. Abogado. The issue for the jurywas not the specific
    question of whether the collision with Ms. Abogado was foreseeable and
    avoidable. It was the more general question whether the manner of driving
    presented foreseeable and avoidable risks to the public, including risks that
    would arise if persons entered or were on the roadway: at para. 78.

[37]

The appellant argues that the charge given by
    the trial judge involved a similar error to that identified by Paciocco J.A.  that
    it focussed the jury on whether the specific collision with Ms. Abogado was
    foreseeable and avoidable, and not on the question of whether the appellants
    driving presented foreseeable and avoidable risks to the public, including
    risks that would arise if persons entered or were on the roadway.

[38]

I would not give effect to this argument.

[39]

First, the error in the charge at the second
    trial consisted of placing a focus on the circumstances of the collision with
    an emphasis on the conduct and blameworthiness of Ms. Abogado. That is not the
    error complained of here.

[40]

Second, the trial judges proposed charge was discussed
    at a pre-charge conference and specific submissions were made with a view to avoiding
    the problems identified in
Romano 2017
.
Trial counsel did not
    take the position that the proposed charge, as adjusted at the pre-charge
    conference, would place undue emphasis on the cause of the specific collision.
    Nor was the charge objected to after it was delivered.

[41]

Third, the charge, read as a whole, unlike the
    charge under consideration in
Romano 2017
, did not focus the jury on
    the wrong questions.

[42]

The appellant points to various parts of the
    charge where the trial judge summarized and commented on the evidence of the
    Crown accident reconstruction expert, and told the jury that based on that
    evidence, they might conclude that the appellant would not have been able to
    avoid hitting Ms. Abogado no matter how she got from the curb to the spot
    where she was hit. He also points to the fact that the trial judge invited the
    jury to consider various details about the specific collision including the
    fact that Ms. Abogado was jaywalking; that she was wearing dark clothing that
    would have made it difficult to see her at night; the evidence of various
    witnesses as to when and what they saw of the collision; and the evidence of
    the Crown reconstruction expert as to whether there was enough time, at the
    speed the appellant was travelling, to avoid hitting Ms. Abogado.

[43]

These passages must, however, be considered in
    light of the charge in its entirety. The trial judge cautioned the jury to
    focus on the appellants manner of driving, and not on the tragic consequences
    that occurred, that is, the death of Ms. Abogado. He instructed them that it
    would be wrong to conclude, because a death occurred, that the manner of
    driving must therefore have been dangerous. He instructed them to consider all
    of the risks created by the manner in which [the appellant] was driving, one
    of which was the risk of striking a jaywalker. He told them that [t]he
    collision with Ms. Abogado is only one of the risks that may have been created
    by [the appellants] manner of driving, that the fact that she was jaywalking is
    only relevant to the foreseeability of the risk, and that the question that they
    must ask themselves was in light of all the circumstances, would a reasonable,
    prudent police officer have foreseen the risks created by the manner of driving
    and taken steps to avoid them?

[44]

Moreover, the trial judge specifically cautioned
    the jury that the question was
not
whether the collision with Ms.
    Abogado was foreseeable and avoidable:

Now, while I discuss the circumstances of the
    collision with Ms. Abogado I do not mean to suggest that the dangerousness of
    the driving is to be determined by examining the circumstances of the collision,
    rather than the manner of [the appellants] driving. The issue for you is not
    whether the collision with Ms. Abogado was foreseeable and avoidable. Rather
    the question is whether the manner of [the appellants] driving presented
    foreseeable and avoidable risks to the public, including risks that would arise
    if a jaywalker entered or was on the roadway.

[45]

As these clear and unequivocal statements and cautions
    demonstrate, the charge did not improperly focus the jury on the question
    Was the specific collision foreseeable and avoidable?  or invite it to overemphasize
    the significance of the consequences of the driving. The jury was instructed
    that the consequences did not answer the question of whether the driving was
    dangerous. The jury was effectively told not to leap to its conclusion about
    the manner of driving based on the consequence:
Beatty
, at para. 46.

[46]

Fourth, the law does not proscribe all reference
    to the consequences of the driving in considering a dangerous driving charge. It
    permits consideration of the consequences to assist in assessing, or to verify,
    the risk involved:
Beatty
, at para. 46;
Romano

2017
,
    at para. 71. It recognizes that in some circumstances, the actions of the
    accused and the consequences flowing from them may be so interwoven that the
    consequences may be relevant in characterizing the conduct of the accused:
Anderson
,
    at p. 273.

[47]

Both sides used the circumstances of the
    collision to assist in assessing or verifying the risks. The defence position
    relied on the circumstances of the collision; that the appellant was driving
    safely and that Ms. Abogados sudden appearance in the path of the appellants
    vehicle, as a result of jaywalking, was an unexpected event of her creation, rather
    than something indicative of a type of risk the appellant should have foreseen
    and avoided. The Crowns position was that the appellants manner of driving
    created the foreseeable risk of being unable to avoid striking a hazard on the
    roadway; Ms. Abogados presence on the road and the collision turned out to be
    a tragic verification of this. The trial judges charge, including the portions
    dealing with the specific collision and the cautions about the proper questions
    to consider, allowed the jury to appropriately consider those positions, without
    falling into the error identified in
Romano

2017
.

[48]

The adequacy of the trial judges charge is assessed
    by considering whether it
left the
    jury with a sufficient understanding of the facts as they related to the
    relevant issues so that the jurors would adequately understand the issues
    involved, the law relating to the charge the accused is facing, and the
    evidence they should consider in resolving the issues:
Romano

2017
,
at para. 84. In my view, it did. I would therefore reject
    this ground.

(2)

Did the trial judge err in his instruction about
    what constitutes a marked departure from the required standard of care?

[49]

The
parties agree that
the
mens

rea

issue in this case was whether the degree of
    care exercised by the appellant was a marked departure from the standard of
    care that a reasonably prudent police officer would observe in the appellants
    circumstances:
Beatty
, at para. 43.

[50]

On that question, the trial judge instructed the
    jury as follows:

And secondly, if so, was [the appellants] failure
    to foresee the risks and take steps to avoid them, if possible, a marked
    departure from the standard of care expected of a reasonable, prudent police
    officer in [the appellants] circumstances?

[]

Now, the dangerous operation of a motor
    vehicle involves more than just carelessness in [the appellants] driving.
    Carelessness, by itself, does not constitute dangerous driving. The offence of
    dangerous driving requires a higher degree of negligence than careless driving.
    Crown Counsel must satisfy you, beyond a reasonable doubt that [the
    appellants] manner of driving was a marked departure from what a reasonable,
    prudent police officer would do in the same circumstances. Your good common
    sense will tell you the difference between simple carelessness and a marked
    departure.

That said, Crown counsel does not have to
    prove that [the appellant] meant to cause death to, or endanger the life of,
    Ms. Abogado, or anyone else who was, or who might have been, there at the time.
    What you have to decide, in these circumstances, is not what [the appellant]
    meant to do, but whether [the appellant] drove in a manner that was a marked
    departure from the manner in which a reasonably prudent police officer would
    operate in the same circumstances. It is the manner of [the appellants]
    driving that you must focus on.

[51]

The appellant submits that this instruction was
    inadequate because it did not properly explain how high the marked departure
    standard is. The jury should have been told that the standard is beyond
    negligence, beyond momentary inattention, and beyond errors of judgment.
    Moreover, the trial judge should have explained the concept by relating it to
    real-world examples.

[52]

The appellant further argues that the instrument
    the trial judge invited the jury to use  its common sense  would not assist
    in evaluating what a trained police officer would do in the circumstances. The suggestion
    invited use of personal and idiosyncratic standards about speeding, but unlike
    the public, the appellant had some latitude to speed while on surveillance. Finally,
    the appellant says the jury should have been explicitly instructed to consider
    how and in what way the appellants driving was a marked departure from the
    standard of care.

[53]

I do not accept these arguments.

[54]

In my view, the
    charge appropriately equipped the jury to appreciate the central
mens

rea
issue,
    namely, that the departure from the expected standard had to be beyond that
    required for civil liability and serious enough to merit punishment:
Roy
, at para.
    28. The charge accomplished this, as the jury was told that the departure had
    to be marked, that more than carelessness was required, and that a higher
    degree of negligence was required than for careless driving. The jury would
    have thus appreciated that more than mere negligence, a momentary lapse of attention,
    or understandable misjudgment was required:
R.
    v. Chung
, 2019 BCCA 206,
    155 W.C.B. (2d) 337 (
Chung (BCCA)
), at para. 30, affd 2020 SCC 8, 386
    C.C.C. (3d) 523 (
Chung (SCC)
).

[55]

It is unclear
    what real-world examples would have assisted the jury to better appreciate this
    standard. Nor was any further explanation about the difference between
    momentary inattention and a marked departure necessary.

[56]

As the Supreme Court
    held in
Chung (SCC
)
at para. 22
:

Although this Court in
Roy
and
Beatty
determined that momentary lapses in attention and judgment would usually not
    raise criminal liability, this was because momentary lapses often result from
    the "automatic and reflexive nature of driving" (
Beatty
, at
    para. 34) or "[s]imple carelessness, to which even the most prudent
    drivers may occasionally succumb" (
Roy
, at para. 37). These are
    examples of conduct that, when assessed in totality against the reasonable
    person standard, only represent a mere departure from the norm. Momentary
    conduct is not assessed differently from other dangerous conduct. Conduct that
    occurs over a brief period of time that creates foreseeable and immediate risks
    of serious consequences can still be a marked departure from the norm (
Beatty
,
    at para. 48). A reasonable person would have foreseen that rapidly accelerating
    towards a major intersection at a high speed creates a very real risk of a
    collision occurring within seconds. This is what actually occurred in Mr.
    Chung's case. Risky conduct at excessive speeds foreseeably can result in
    immediate consequences. Therefore, the fact that foreseeable consequences occur
    within a short period of time after someone engages in highly dangerous
    behaviour cannot preclude a finding of
mens

rea
for
    dangerous driving.

[57]

The jury was
    instructed to consider whether the appellants failure to foresee the risks
    arising from his manner of driving, and to take steps to avoid them, if
    possible, was a marked departure from the standard of care expected of a
    reasonable prudent police officer in the circumstances. The jury was told the
    departure had to be more than carelessness and was thus able to consider
    whether the appellants excessive speeding established
mens

rea
because,
    having regard to all the circumstances, it supports an inference that the
    driving was the result of a marked departure from the standard of care a
    reasonable person in the same circumstances would have exhibited:
Chung

(SCC)
, at
    para. 19.

[58]

I agree with
    the Crowns submission that this is not a case like
R. v. Stephan
,
    2017 ABCA 380, 357 C.C.C. (3d) 10, revd 2018 SCC 21, [2018] 1 S.C.R. 633, (dealing
    with the offence of failing to provide the necessaries of life). In
Stephan
,
the charge was inadequate because it did
    not tell the jury that it needed to consider whether the accuseds conduct fell
    sufficiently below the standard expected of a reasonable parent, nor did it caution
    the jury that notwithstanding the significant medical evidence it had heard, the
    standard was not to be equated to what a doctor would do in the circumstances: at
    paras. 246-54. Unlike in
Stephan
, the jury here was equipped to understand
    the standards of reasonable driving, and how far the appellants conduct
    departed from them.

[59]

Nor is this a
    case like
R. v. Laverdure
, 2018 ONCA 614, 365 C.C.C. (3d), also
    relied on by the appellant. The issue in that case was the failure of a trial
    judge, in a judge alone trial, to fully analyze the evidence related to
mens

rea
. The
    trial judge erred by focussing solely on the
actus reus

and concluding that
    the act of dangerous driving necessarily constituted a marked departure
.
As
    such, he did not identify how and in what way the driver went beyond mere
    carelessness. In this case, the instructions to the jury clearly required them
    to analyze both the
actus

reus

and the
mens

rea
elements
    of the offence.

[60]

Finally,
the issue of how the jury should be charged on this topic was the
    subject of dialogue at the pre-charge conference. The trial judge was asked by trial
    counsel to include the sentence: The offence of dangerous driving requires a
    higher degree of negligence than careless driving. The trial judge did so. The
    charge was not otherwise objected to before or after its delivery.

[61]

While the trial judge has the responsibility of
    adequately charging the jury, counsel are expected to assist in fulfilling that
    responsibility. Here, the trial judge accommodated trial counsels suggestions
    about the charge. Trial counsel did not otherwise object to it. While not
    determinative, this supports the conclusion that the charge on marked
    departure was adequate:
R. v. Mack
, 2014 SCC 58, [2014] 3 S.C.R. 3 at
    para. 60.

[62]

I would therefore reject this ground of appeal.

IV.

The Sentence Appeal

[63]

The appellant asks that we set aside or shorten
    the term of incarceration, or alternatively, impose a conditional sentence.

[64]

The appellant argues that the sentencing judge
    erred by failing to apply the principle of restraint. Under that principle, a
    sentencing judge is required to consider all sanctions apart from incarceration
    and impose imprisonment only when there is no other reasonable punishment:
Code
,
    s. 718.2(d) and (e). It follows that where imprisonment is required, the term
    should be as short as is reasonable given the circumstances. The appellant
    argues that a proper application of the restraint principle leads to no, or a
    shorter, custodial term.

[65]

At the time of sentencing, a conditional
    sentence  a sentence of incarceration served in the community subject to
    conditions  was not available for the offence of dangerous driving causing
    death, since the offence is punishable by a maximum term of imprisonment of 14
    years:
Code
, s. 742.1(c). In
R. v. Sharma
, 2020 ONCA 478, 152
    O.R. (3d) 209, leave to appeal granted, 39346 (January 14, 2021), a majority of
    this court found s. 742.1(c) to be unconstitutional. The appellant alternatively
    submits that this court should substitute a conditional sentence, as this was
    not an egregious case of police misconduct and involved no exploitation of
    power.

[66]

I would not give effect to these arguments.

[67]

In my view, the sentencing judge did not
    overlook the principle of restraint. It was expressly referred to in
    submissions made to him, and he stated that he had considered the principles set
    out in s. 718 of the
Code
.

[68]

The sentencing judge noted the appellants commendable
    personal, familial, and professional history, the lack of a need for specific
    deterrence, and the appellants remorse for the accident. But he also found
    that Ms. Abogados tragic death was an important factor in determining an
    appropriate sentence, and noted that it had had a devastating impact on her
    family. Although he did not agree with the Crown that general deterrence should
    be an overriding or dominant consideration, he did find a need, albeit
    diminished, for the sentence to reflect that principle. Although the defence
    request was for a non-custodial sentence, the sentencing judge found a term of
    eight months incarceration to be required. His reasons can only be taken to
    mean that he found this sanction to be necessary after considering all
    principles of sentencing.

[69]

Appellate variation of a sentence is only
    justified if the sentence is demonstrably unfit, or if the sentencing judge
    made an error of law or principle that had an impact on the sentence imposed
:
    R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 40-41, 43-44.
    The sentencing judge in this case considered the relevant principles and
    exercised his discretion to arrive at a sentence that was not demonstrably
    unfit.

[70]

In light of
Sharma
, it is open to this
    court to consider the appropriateness of a conditional sentence for this
    offence. However, the fact that a conditional sentence is now available does
    not mean that one will necessarily be imposed:
R. v. Gray
,
2021
    ONCA 86 at paras. 44-45. The issue is whether, post-
Sharma
, the sentencing
    judges decision remains sound, given the newfound availability of a
    conditional sentence, after considering the sentencing judges reasons, the
    applicable principles, and any fresh evidence
:

Gray
,
at
    para. 52
.

[71]

The sentencing judge referred, in his reasons,
    to the non-availability of a conditional sentence. But he did not say that he
    would have imposed one if it were open to him to do so. He did not accept the
    defence submission that a non-custodial sentence was appropriate. His view,
    from his reasons read as a whole, was that an actual custodial sentence was required
    because of the nature and circumstances of this particular offence and the harm
    done. His sentencing decision thus remains sound. His findings do not support
    the view that a conditional sentence would be consistent with the fundamental purpose
    and principles of sentencing set out in sections 718 to 718.2:
Code
,
    s. 742.1(a).

[72]

As I have described, the sentencing judge did
    not err in failing to consider the principle of restraint. He did not impose a
    sentence that was demonstrably unfit. It would not be appropriate, on the
    findings that he did make and the relevant principles, to set aside or reduce
    the custodial sentence, or substitute a conditional sentence.

V.

Conclusion

[73]

I would dismiss the conviction appeal. Although
    I would grant leave to appeal sentence, I would also dismiss the sentence
    appeal.

Released: April 8, 2021 G.R.S.

B.
    Zarnett J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. David Watt J.A.

[1]
She was jaywalking.

[2]
In these reasons I refer interchangeably to dangerous operation of
    a motor vehicle and dangerous driving.

[3]

For example, the judge at the second
    trial told the jury:

In considering whether the driving in question was
  dangerous as I have defined it, you will take into account that Ms. Abogado was
  jaywalking, that is, she was crossing St. Clair Avenue East in the middle of
  the road, not at an intersection or at a crosswalk. Jaywalking is an inherently
  risky activity.

Pedestrians must be aware, when they jaywalk, that drivers are not
    always paying attention, not always concentrating on what is going on ahead of
    them. Also, Ms. Abogado was wearing generally dark clothing, meaning that she
    would be more difficult for a driver to see, especially given that it was night
    time and it was dark out.


WARNING

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

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

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

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18..

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.H., 2021 ONCA 41

DATE: 20210121

DOCKET: C64838

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.H.

Appellant

Howard Krongold, for the appellant

Michael Dunn, for the respondent

Heard: January 15, 2021 by
    videoconference

On appeal from the convictions entered
    by Justice W. Danial Newton of the Superior Court of Justice on July 8, 2016,
    with reasons reported at 2016 ONSC 4492.

REASONS FOR DECISION

[1]

The trial judge convicted the appellant of sexual
    interference, contrary to s. 151 of the
Criminal Code
, and sexual
    assault, contrary to s. 271 of the
Criminal

Code
. The
    appellant was found to have committed these offences against the complainant,
    his step-daughter, on an almost daily basis, over a number of years.

[2]

At the trial, the complainant testified about
    the alleged sexual abuse. She also testified that after she told her mother
    about the abuse, the appellant came into her room and apologized to her.

[3]

The complainants mother testified that after
    the complainant told her of the sexual abuse, she confronted the appellant, who
    did not deny the allegations but said he could not remember, perhaps because he
    had consumed drugs. She testified that she then heard the appellant apologize
    to the complainant, and that the appellant left the family home the next day.

[4]

In his testimony, the appellant denied the
    alleged sexual acts and denied apologizing to the complainant. He said that he
    left the house because the complainants mother admitted that she was having an
    affair. The appellant suggested that the complainants allegations were
    motivated by his response to the complainant being caught shoplifting, and that
    the complainants prior complaints to her friends had been motivated by the negative
    influence of those friends, and her desire to fit in.

[5]

In his decision finding the appellant guilty,
    the trial judge accurately set out the principles in
R. v. W.(D.)
,
[1991] 1 S.C.R. 742, for the
    application of the reasonable doubt standard in credibility cases. He
    identified the three stages in the
W.(D.)
analysis that are
    customarily described, including by citing the formula expressed in
W.(D.)
,
    at p. 758:

First, if you believe the evidence of the
    accused, obviously you must acquit.

Second, if you do not believe the testimony of
    the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by
    the evidence of the accused, you must ask yourself whether, on the basis of the
    evidence which you do accept, you are convinced beyond a reasonable doubt by
    that evidence of the guilt of the accused.

[6]

In the analysis section of his reasons for
    decision, the trial judge explained that he did not accept the appellants
    evidence, and that he was satisfied of the appellants guilt beyond a
    reasonable doubt based on the evidence he did accept, namely the testimony of
    the complainant and her mother. These holdings address the first and third
    steps in the
W.(D.)

analysis. In describing his analysis, the
    trial judge did not expressly address the second stage of the
W.(D.)

analysis.

[7]

The appellant urges us to find that despite
    citing the principles correctly, the trial judge misapplied the law by failing
    to consider the second stage of the
W.(D.)

analysis. He
    therefore asks that his convictions be set aside and that a new trial be
    ordered.

[8]

Notwithstanding that the trial judge did not
    advert expressly in his analysis to the second stage of
W.(D.)
, we are
    not persuaded that the trial judge committed this error.

[9]

It is telling that the trial judge did not
    simply reproduce the
W.(D.)
formula in his decision. He said that he was
    obliged to consider each step in his reasoning, and, commendably, explained what
    each of those steps entails. This included a two paragraph explanation of how
    the second stage of the
W.(D.)

analysis was to be conducted, culminating
    in a self-direction that even if he does not believe the accused, the trial
    judge must consider the accuseds evidence in the context of the evidence as a
    whole to determine whether he may nonetheless have a reasonable doubt as to the
    accuseds guilt.

[10]

The trial judges detailed examination of the
    law is instructive on the ground of appeal before us. In order to accept that
    the trial judge failed to apply the second stage of the
W.(D.)
analysis, we would have to infer that the trial judge somehow failed to
    undertake the very analysis that he not only said he would undertake but
    explained in appreciable detail. A review of the reasons for decision does not
    support this conclusion. When the decision is read as a whole, it can be
    inferred that the trial judge rejected the appellants exculpatory testimony in
    its entirety, leaving that testimony incapable of raising a reasonable doubt.

[11]

This can be seen most clearly in the trial judges
    treatment of the appellants explanation for his abrupt departure from the
    family home. Although the trial judge did not say so expressly, he clearly concluded
    that this testimony was contrived. That the trial judge reached that conclusion
    is apparent from the trial judges explanation that this testimony so undercut
    the appellants credibility that his denial of the assaults could not be
    accepted.

[12]

The trial judge then moved on to the appellants
    testimony about the influence of the complainants friends on her prior
    complaints, and said, I
also
reject [that] assertion (emphasis added).
    Here, also is clearly a reference to the trial judges finding, made
    immediately prior, that he did not accept the appellants denial that he
    assaulted the complainant. It follows, from the use of also in reference to
    the friends influence, that the trial judge rejected the appellants
    exculpatory denial. Put otherwise, the trial judge not only found that he did
    not affirmatively believe the appellants denial, he rejected it in its
    entirety leaving it incapable of raising a reasonable doubt.

[13]

To be sure, it would have been preferable for the
    trial judge to expressly address each of the three
W.(D.)
stages in
    his analysis. Had he done so, it is unlikely that the decision would have been
    appealed. Had it been appealed, it would not have been necessary to provide the
    close analysis just undertaken to determine whether an error occurred. Having
    undertaken that exercise, however, we are not persuaded that the law was
    misapplied.

[14]

The appeal is therefore dismissed.

R.G.
    Juriansz J.A.

M.
    Tulloch J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sangster, 2021 ONCA 21

DATE: 20210112

DOCKET: C65913

MacPherson, Tulloch and Lauwers
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Sangster

Appellant

Erin Dann and Angela Ruffo, for the
    appellant

Gerald Brienza, for the respondent

Heard: December 17, 2020 by video conference

On appeal from the convictions entered
    on March 27, 2018, and the sentence imposed on April 25, 2018, by Justice Jon-Jo
    Douglas of the Ontario Court of Justice.

MacPherson J.A.:

[1]

After a five-day trial before Douglas J. of the
    Ontario Court of Justice in Huntsville, the appellant, Alexander Sangster, was
    found guilty of possession and careless use of a firearm, pointing a firearm,
    aggravated assault against his friend Courtney Carpenter, and assault causing
    bodily harm against his girlfriend Samantha Lambertsen-Downing. He pleaded
    guilty to fail to comply with recognizance. The appellant appeals all of the
    convictions except the fail to comply with recognizance.

[2]

The trial judge imposed a global sentence of
    seven years and seven months for the convictions. The appellant appeals the
    sentence.

[3]

On the sentence appeal, the appellant seeks to
    introduce fresh evidence about his rehabilitative progress while in custody post-sentence
    (25 months) and while on bail pending appeal (7 months).

[4]

For the reasons below, I would dismiss the
    conviction appeal and allow the sentence appeal on the basis of the fresh
    evidence application.

The conviction appeal

[5]

The events that ground the appellants
    convictions, as described accurately in his factum, arise out of a tumultuous
    evening at the apartment building where the Appellant was living on May 29,
    2017. Everyone was intoxicated and several fights took place.

[6]

The appellant and his girlfriend were staying
    with S.S. and Ryan Davey in apartment #4 in an apartment building in
    Huntsville. They had been living there, by invitation, for about three weeks.
    Courtney Carpenter and Patricia Hickey lived in apartment #3.

[7]

On May 29, 2017, people in both apartments
    became heavily intoxicated. The appellant and his girlfriend were involved in a
    fight that spilled into the hallway outside the apartment. Carpenter and Hickey
    heard the fight in the hallway, left their apartment, and intervened. The
    appellant and Carpenter wrestled on the floor before separating. The appellant
    was violent toward his girlfriend the rest of the evening. At one point in the
    evening the appellant was walking around with a gun; he pointed it at Davey,
    and then at S.S. when she stepped in front of Davey.

[8]

During his fight with the appellant, Carpenter
    was stabbed in the kidney. Carpenter did not realize he had been stabbed or, in
    any event, did not remember it happening. The next morning Carpenter called his
    sister who rushed over to meet him at his apartment. She was pulled over by
    police for speeding before she could get to him. Police learned about the
    stabbing from her during the traffic stop. When police arrived at Carpenters
    apartment, he told them he could not remember who had stabbed him and suggested
    that he may have been jumped outside the apartment building or bitten by a dog.
    Later, after speaking with Hickey in hospital, he remembered the fight with the
    appellant in the hallway.

[9]

While police were investigating the stabbing,
    two Childrens Aid Society workers noticed the police cars parked outside the
    apartment building. They decided to visit S.S. who had missed her appointment
    with CAS that morning, was pregnant and had a child in care. One of the police
    officers at the scene, Constable Fleming, accompanied them to apartment #4. The
    CAS workers asked if they could enter the unit. S.S. agreed. Constable Fleming entered,
    but remained in the hallway. One of the CAS workers asked S.S. if she would
    open the bedroom door; when S.S opened the door, the CAS worker saw the
    appellant holding a gun. The CAS worker screamed something to the effect of he
    has a gun and ran out of the bedroom. Constable Fleming went to the bedroom
    where he saw the appellant hiding something under the mattress. Later, he
    obtained a search warrant and seized a shotgun from under the mattress and some
    shells from the vicinity.

[10]

At the start of the trial, the appellant brought
    an application pursuant to ss. 8 and 24(2) of the
Canadian Charter of
    Rights and Freedoms
to exclude the evidence obtained from the search of
    apartment #4 by the CAS workers and the police.

[11]

The trial judge dismissed the
Charter
application.
    In determining that there was no s. 8 breach, the trial judge reasoned that although
    the appellant had some expectation of privacy as a guest, that expectation
    did not reasonably extend to prevent the search to which S.S., the principal
    resident of the apartment, consented, including to open the door to the
    bedroom. The trial judge also addressed s. 24(2) of the
Charter
,
    concluding that if there was a breach of s. 8 it was minor and the
Grant
factors favoured admission of the evidence:
R. v. Grant
, 2009
    SCC 32
.

[12]

The trial judge found the appellant guilty of
    wounding Carpenter by stabbing, assault causing bodily harm to Lambertson-Downing,
    pointing a firearm at Davey, careless use of a firearm and possession of a
    loaded prohibited weapon.

[13]

The appellant appeals his conviction on two
    grounds.

[14]

First, the appellant contends that the trial
    judge erred in dismissing his
Charter
application. The appellant says
    that he had a reasonable expectation of privacy in his bedroom that could not
    be nullified by S.S.'s consent to the search and, in any event, there was no
    valid consent by S.S. to search the apartment.

[15]

With respect to the first component of this
    argument, the starting point is
R. v. Reeves
, 2018 SCC 56, where
    Karakatsanis J. said, at para. 12:

Section 8 of the
Charter
is only
    engaged if the claimant has a reasonable expectation of privacy in the place or
    item that is inspected or taken by the state (
R. v. Cole
, 2012 SCC 53,
    [2012] 3 S.C.R. 34, at paras. 34 and 36). To determine whether the claimant has
    a reasonable expectation of privacy, courts examine the totality of the
    circumstances (
R. v. Edwards
, [1996] 1 S.C.R. 128, at paras. 31 and
    45(5)).

[16]

In
Edwards
, Cory J. said, at para. 45:

The factors to be considered in assessing the
    totality of the circumstances may include, but are not restricted to, the
    following:

(i) presence at the time of the search;

(ii) possession or control of the property
    or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or
    item;

(v) the ability to regulate access,
    including the right to admit or exclude others from the place;

(vi) the existence of a subjective
    expectation of privacy; and

(vii) the objective reasonableness of the
    expectation.

[17]

The appellant was present in the apartments
    only bedroom at the time of the search.

[18]

The appellant had no control over the premises.
    He was a guest of the apartments lessees.

[19]

The appellant did not own the apartment.

[20]

The appellant had no historical use of the
    apartment. He had stayed there, as a guest of the lessees, about three weeks.

[21]

The appellant had no ability to regulate access
    to the apartment or even to the bedroom where he and the gun were found. He
    slept in the bedroom only because S.S. and Davey preferred to sleep on a
    mattress on the living room floor because it was cooler there. Referring to the
    bedroom, S.S. said: I kept almost everything in there, my clothes, my dresser,
    my crib, my baby stuff, my stroller, car seat. She also kept her mattress in
    the bedroom during the daytime and moved it to the living room at night.

[22]

The appellant testified in the
voir dire
on the
Charter
application and said that he had an expectation of
    privacy in the bedroom. His testimony was the only evidence that he contributed
    groceries or rent to the apartment. The trial judge rejected his evidence: The
    accused testified as to his living arrangement. Broadly speaking his evidence
    is not to be considered reliable.

[23]

If the appellant had a subjective expectation of
    privacy in the bedroom and apartment, it was not objectively reasonable. He and
    his girlfriend had been there only three weeks. They were there as guests of S.S.
    and Davey. And, as the trial judge observed, [t]his is a very small
    apartment.

[24]

In summary, an application of the
Edwards
factors
    overwhelmingly supports the trial judge's conclusion that the appellant had
    only a low expectation of privacy with respect to the bedroom and that it did
    not extend to render the search of the bedroom unreasonable.

[25]

The appellant's second argument on this issue is
    that in any event, contrary to the trial judge's conclusion, S.S. did not validly
    consent to the entry of the CAS workers and police into either apartment #4 or
    the bedroom.

[26]

I do not accept this submission. In his
    judgment, the trial judge described the circumstances of the entry into the
    apartment and bedroom of, first, the CAS workers and, second, Constable
    Fleming:

CAS knocked on the door. [S.S.] answered. CAS
    had no statutory authority to enter and search unless apprehending the child. They
    thus have a well established protocol of requesting permission to enter. They
    did, and [S.S.] agreed.  This is a very small apartment. [S.S.] and the CAS
    entered near to the kitchen area while Fleming hung back in the hall area.  Again,
    pursuant to protocol, CAS asked to search the cupboards, fridge et cetera. Permission
    was granted.  The only bedroom door was closed. [S.S.] was asked if they could
    look in the room. [S.S.] said to CAS, Ms. Fraser, go ahead and open the door.
    Ms. Fraser said no, you open it. [S.S.] did.

[27]

In my view, this chronology, with care taken
    throughout to ensure that S.S. was consenting to each step in the process,
    easily complies with the test for determining whether a consent is valid, set
    out by this court in
R. v. Wills
(1992), 70 C.C.C (3d) 529 (Ont. C.A.),
    at p. 546.

[28]

The appellant's second ground of appeal is that
    the trial judge misapprehended the evidence in such a way that renders the
    convictions on three counts a miscarriage of justice. The convictions that the
    appellant challenges on this basis are the aggravated assault (stabbing) of
    Carpenter, the assault causing bodily harm against Lambertsen-Downing, and the
    possession and careless storage of a firearm.

[29]

I am not persuaded by this submission. In
R.
    v. Lohrer
, 2004 SCC 80, at para. 2, Binnie J. articulated the high bar
    that must be met to satisfy this ground of appeal:

Morrissey
, it
    should be emphasized, describes a stringent standard. The misapprehension of
    the evidence must go to the substance rather than to the detail. It must be
    material rather than peripheral to the reasoning of the trial judge. Once those
    hurdles are surmounted, there is the further hurdle (the test is expressed as
    conjunctive rather than disjunctive) that the errors thus identified must play
    an essential part not just in the narrative of the judgment but in the
    reasoning process resulting in a conviction.

[30]

In my view, the appellant cannot meet either
    component of this test. The trial judge was entitled to accept Carpenters
    testimony, supported by his wifes recall, that the appellant stabbed him, and
    to accept S.S.s testimony that she heard Hickey yell he juststabbed him,
    referring to the appellant. He was entitled to rely on S.S.s testimony about
    the appellants assault on Lambertsen-Downing. He was entitled to rely on S.S.s
    testimony that the appellant pointed a gun at her and Davey.

[31]

I would dismiss the conviction appeal.

The sentence appeal

[32]

The trial judge imposed a global sentence of
    seven years and seven months on the appellant. As an introduction, he stated:

The five offences can be categorized into four
    parts:

1.
The stabbing of the neighbour;

2.
The assault [causing] bodily harm on the accuseds girlfriend;

3.
The pointing of and carrying of a loaded prohibited weapon, being
    the sawed-off shotgun; and

4.
The related concurrent possession of that shotgun prior to these  incidents
    and when ultimately arrested by the police the following morning.

[33]

The trial judge imposed the following sentences:

Count 1  aggravated assault, three years and
    3 months;

Count 3  assault causing bodily harm, one
    year consecutive;

Counts 5, 6 and 7  the gun charges, three
    years and three months concurrent to one another but consecutive to all other
    sentences; and

Count 9  the breach, one month consecutive.

[34]

At the sentence hearing, the Crown proposed a
    sentencing range of six years and seven months to eight years and two months.
    The defence proposed a sentence of approximately four years and seven months.
    Hence the sentence imposed by the trial judge was squarely inside the Crown
    position and outside the defence position.

[35]

The trial judge gave credit for pre-trial
    custody on a 1.5:1 basis totalling 497 days. He concluded:

His total sentence of seven years and seven
    months is a sentence of 2,768 days from which I deduct the 497 days, leaving
    him 2,271 days to serve or six years and 81 days to serve.

[36]

The appellant advances two arguments on the
    sentence appeal.

[37]

First, the appellant contends that the global
    sentence of seven years and seven months was unfit.

[38]

I do not accept this submission. Although the
    sentence was certainly at the high end of the range, it was not, in my view,
    outside the range. On the night and morning in question, the appellant went on
    a crime binge that injured his girlfriend, almost killed his friend and
    neighbour, and could have resulted in harm to several other people.

[39]

Second, on the basis of a fresh evidence
    application, the appellant seeks an order that the sentence appeal be allowed
    and the sentence be reduced to one of time served.

[40]

The background to the fresh evidence application
    is this chronology: the appellant was sentenced to seven years and seven months
    imprisonment on April 25, 2018 at which time he began to serve his sentence; he
    perfected his appeal in March 2020; he was granted bail pending appeal on May
    28, 2020. Since being granted bail, a period of just over seven months, he has
    been living at his mothers home in Huntsville. This chronology establishes
    that the appellant has served about three years and five and a half months of
    his sentence (one year and four and a half months in pre-trial custody and two years
    and one month in post-sentence custody). The appellants parole eligibility
    date is May 21, 2020. His statutory release date is June 17, 2022. His warrant
    expiry date is July 12, 2024.

[41]

I would allow the application to introduce fresh
    evidence. The evidence meets the requirements of the test in
Palmer v. The
    Queen
, [1980] 1 S.C.R. 759, at p. 775: it could not have been adduced at
    trial, it is relevant, it is credible, and it could reasonably be expected to
    have affected the result.

[42]

There are two categories of material that are
    relevant on the fresh evidence application  the evidence relating to the
    appellants progress during his 25 months in the Beaver Creek Institution after
    the sentence was imposed, and the evidence relating to the appellants progress
    during his seven months on bail pending this appeal.

[43]

There is strong evidence that the appellant made
    substantial progress during his 25 months in custody at the Beaver Creek
    Institution. There are two comprehensive reports about the appellants attitude
    and behaviour while in custody that are highly complimentary about the
    appellant and promising in terms of his future prospects in the community.

[44]

These two reports were before the motion judge
    who heard and granted the appellants bail application in May 2020. In
R.
    v. Sangster
, 2020 ONCA 332, at para. 17, Jamal J.A. said this about these
    reports:

Reports prepared by the Beaver Creek
    Institution in September, 2019 and March, 2020 confirm the applicant has made
    substantial progress in managing his addiction and his personal risk factors:

·

The September 2019 report notes substantial
    gains in the applicants ability to recognize and address problems and
    confirms that he has been sober for two years. It notes that he participated
    in a methadone program, communicates positively with staff, has improved
    relations with his family as a result of his sobriety, and is determined to
    set boundaries with anyone who uses drugs, whereas previously he was never
    sober and began to become more violent and aggressive the more drugs he
    used. The report notes that he has made sobriety his number one priority and
    has planned a continuum of care using community supports. His rated ability
    and commitment to manage his thinking that justifies and supports the use of
    violence, partner violence, and general violence has improved from needs a lot
    of improvement to moderate. The report concludes that the applicants current
    overall ability and commitment to use the skills required to manage his various
    risk factors improved and is currently rated as good.

·

The March 2020 report highlights continued
    improvement. It confirms that the applicant conducts himself respectfully with
    staff, has successfully completed his correctional programs, is enrolled in
    school, and has maintained employment. It notes that his risk to public safety
    is reduced from moderate to low. The report states that he has demonstrated
    accountability for his offences and [t]here are no indicators of substance
    abuse during his incarceration. The report also states that [h]e is not
    currently assessed to be a candidate for detention. It concludes that he has
    demonstrated limited negative conduct and there is no evidence of violent
    behaviour or substance abuse institutionally.

[45]

This first category of evidence, demonstrating
    the appellants significant progress while at the Beaver Creek Institution,
    supports a reduction in the appellants sentence.

[46]

In the second category  the appellants
    situation since he was granted bail on May 28, 2020  there is also strong
    evidence to support the appellants actual, and likely continuing,
    rehabilitation.

[47]

The appellant has been living with his mother
    while on bail. In a letter filed with the court, she records:

I have had many conversations with my son
    which have clearly demonstrated to me that his past behaviour, which was
    greatly influenced by severe drug and alcohol abuse/addiction, is a thing of
    the past. I feel that I now have back the son that I raised.

In my view Alex has taken full responsibility
    for his past poor life choices, which led to the loss of his good reputation
    and culminated in his criminal behaviour, for which he was found guilty.

Alex became a first time father during his
    incarceration. His daughter  has brought great happiness and a deep bond
    between them. I believe Alex will forever fulfill his role as a father, along
    with his long time mate Samantha (mother of his child). Alex and Samantha have
    a loving, devoted and respectful relationship towards each other and co-parent
    very well.

He has clearly benefited from the programs he
    attended at Beaver Creek.

[48]

While on bail, the appellant reports that he has
    been working with the Ontario Addiction Treatment Centre to connect with
    resources to help him manage his addiction challenges. This is confirmed in a
    letter from Dr. Michael DeRoode of the OATC in Huntsville who sees the
    appellant on a weekly basis and reports excellent progress:

Since starting the program, Alex has been
    focused and goal oriented. He has worked hard to make the program work for him
    and has reaped the rewards. He also attends my general medical clinic where we
    have worked hard at treating some of his underlying psychologic issues. He now
    takes medication for these issues and they have helped his concentration and
    impulsiveness. He is on stable doses of these meds. This has allowed him to
    achieve a goal of gainful employment.

[49]

The last sentence of Dr. DeRoodes report is
    confirmed by Matthew Marietta, a friend of the appellant:

I have known Alex Sangster for over 20 years,
    we met while attending Huntsville High School. [H]e took a path that led him
    to make very poor choices.

Since Alexs temporary release from Beaver
    Creek, I have noticed a huge change in his mannerism, drive and demeanor. He
    has been volunteering some hours around my home with repairs, clean up and
    other household chores that I have needed assistance with. As I own a small
    local business, Premier Northern Exteriors, it would be a great pleasure to
    have Alex join my team after his court date.

[50]

Taking all these factors together  his mothers
    support and supervision, a very young first child born while he was
    incarcerated, a revived relationship with his partner, good medical and
    psychological support, and the promise of stable employment  I conclude that
    the second category of fresh evidence also supports a reduction in the appellants
    sentence.

[51]

At this juncture, and bearing in mind that the
    original sentence was a stiff sentence, I see that no good purpose  for the
    appellant or the administration of justice  would be served by reincarcerating
    the appellant.

Disposition

[52]

I would dismiss the conviction appeal. I would
    allow the sentence appeal on the basis of the fresh evidence application only
    and substitute a sentence, at this juncture, of time served.

Released: JCM  JAN 12 2021

J.C.
    MacPherson J.A.

I
    agree. M. Tulloch J.A.

I
    agree. P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Seip, 2021 ONCA 101

DATE: 20210219

DOCKET: C67573

MacPherson, van Rensburg and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcel Seip

Appellant

Marcel Seip, acting in person

Danielle Robitaille, appearing as duty
    counsel

Jeffrey Wyngaarden, for the respondent

Heard: February 9, 2021 by
    video conference

On appeal from
    the conviction entered on May 21, 2019 and the sentence imposed on October 9,
    2019 by Justice Diane M. Lahaie of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant Marcel Seip appeals his conviction
    and sentence for the offences of using a restricted or prohibited firearm in a
    kidnapping with intent to confine, break and enter, aggravated assault, assault,
    possession of a firearm while prohibited by reason of an order under s. 109 of
    the
Criminal Code
, R.S.C. 1985, c. C-46, breach of recognizance, and
    two counts of uttering threats to cause death.

[2]

The trial judge made the following findings
    relevant to this appeal:

·

The appellant participated in a home invasion
    and kidnapping with an accomplice to collect a $300 drug debt. The appellant
    was the mastermind and principal driving force of the home invasion and
    kidnapping. He knew his accomplice had a gun and decided it was time to be
    taken seriously regarding the money owed to him.

·

The appellant asked his girlfriend to knock on
    the door of the home as a decoy. She knew nothing about the accuseds plan in
    advance.

·

The door was opened by an 18-year-old high
    school student who lived at that address with his mother. The appellant and the
    accomplice barged in and the accomplice shot the student in the arm. The trial
    judge found that the accomplice put the gun to [the students] forearm and
    shot him. The bullet travelled through his arm and into the arm of the
    accomplice.

·

The appellant and the accomplice threatened to
    kill or harm the five occupants if they called the police, and did so again
    when they screamed with fear.

·

The appellant punched the individual who owed
    the drug debt in the face. Then, the appellant and the accomplice kidnapped him
    to force him to get the money to repay the debt. Eventually he escaped.

·

The trial judge found that although the
    appellant and the accomplice discussed and intended to use the gun as part of
    the home invasion, she was not prepared to find beyond a reasonable doubt that
    the plan was to shoot the gun into the student or anyone else. The trial judge
    was left in doubt by the evidence of the appellants girlfriend, that the gun
    went off when the student flinched after opening the door, and because in
    shooting the student the accomplice shot himself, which suggested the gun might
    have been fired accidentally. The trial judge therefore acquitted the appellant
    of discharging a firearm with intent to wound, but found him guilty of
    aggravated assault.

·

The appellant was sentenced to a global sentence
    of 10 years in jail, less 866 days credit for pre-sentence custody, and various
    ancillary orders.

[3]

On the conviction appeal, duty counsel argues
    that because the trial judge acquitted the appellant of discharging a firearm
    with intent to wound, she could not convict the appellant of aggravated
    assault. She asserts that the trial judges conclusion that she could not find
    beyond a reasonable doubt that the shooting was intentional precluded any
    finding of an intentional application of force needed to convict him for
    aggravated assault. Duty counsel submits that if the aggravated assault
    conviction is set aside, a global sentence around 6 to 7 years would be more
    appropriate. No other argument was made in relation to the sentence appeal.

[4]

We do not accept this submission. In our view,
    the trial judge was entitled to find the appellant guilty of aggravated assault
    in the circumstances.

[5]

Section 268(1) of the
Criminal Code
provides:

Every one commits an aggravated assault who
    wounds, maims, disfigures or endangers the life of the complainant.

[6]

The essence of aggravated assault is captured by
    Morris Manning and Peter Sankoff in
Manning, Mewett & Sankoff
    Criminal Law
, 5th ed. (Toronto: LexisNexis, 2015), at p. 998:

The most serious type of assault short of
    homicide is called aggravated assault, which occurs when a person wounds,
    maims, disfigures or endangers the life of another. Conduct of this sort is
    punishable by imprisonment for up to 14 years. The elements of the offence are
    fairly well established. In addition to proving the basic requirements for an
    assault, it must also be shown that one of the prohibited consequences  wounding,
    maiming, disfiguring or endangering  was caused by the assault.
Although it
    is not necessary to prove that the accused intended those consequences in all
    cases, the Crown must demonstrate that the conduct was at least objectively
    likely to cause bodily harm
. [Emphasis added.] [Footnotes omitted.]

[7]

The
mens rea
for aggravated assault is
    the
mens rea
for the offence of assault coupled with objective
    foreseeability of harm. As Cory J. stated in
R. v. Godin
, [1994] 2
    S.C.R. 484, at p. 485:

The
mens rea
required for s. 268(1)
    of the
Criminal Code
, R.S.C., 1985, c. C-46, is objective foresight of
    bodily harm. It is not necessary that there be an intent to wound or maim or
    disfigure. The section pertains to an assault that has the consequences of
    wounding, maiming or disfiguring.

[8]

Here, the trial judge found the accomplice put
    the gun to the students arm. This intentional act was an assault. Even if the
    accomplice did not intend to shoot the student, the trial judge was entitled to
    find that the resulting injury was objectively foreseeable as a result of this
    assault, and was thus an aggravated assault. The trial judge was also entitled
    to find that the appellant was a party to this offence. He was the mastermind
    of the home invasion and knew his accomplice had a gun and intended to use it
    in the crime. We therefore see no error in the following analysis and
    conclusion of the trial judge:

[The appellant] was a party to the offence of
    aggravated assault committed against [the student]. The
mens rea
of
    this offence is objective foresight of bodily harm. The Crown need not show
    that an accused alleged to be a party to the offence of aggravated assault had
    any greater
mens rea
than the actual perpetrator and, in particular,
    need not show an objective foresight of the specific wounds resulting from the
    assault. (
R. v. Vang
(1999), 132 C.C.C. (3d) 32 (Ont. C.A.), leave to
    appeal to S.C.C. refused;
R v. Cuadra
(1998), 125 C.C.C. (3d) 289
    (B.C.C.A.) I am convinced beyond a reasonable doubt that all the elements of
    this offence have been established.

[9]

The appellant also argues that the trial judge
    erred in her credibility findings. He says that he was waiting in the car
    downstairs and that he did not participate in the home invasion. The trial
    judge rejected the appellants evidence at trial, stating:

I reject the entirety of [the appellants]
    evidence because it is inconsistent and illogical. [The appellant] is not an
    honest man. He has a criminal history which includes convictions for crimes of
    dishonesty and breaches of court orders. That being said, it was his
    inconsistent evidence and version of events which made no sense which leads to
    my conclusion in regards to his evidence.

[10]

We see no error in the trial judges rejection
    of the appellants evidence. Nor do we see any error in how the trial judge
    evaluated the credibility of the other witnesses or in finding the appellant
    guilty.

[11]

Because the conviction appeal is dismissed,
    there is no basis for the sentence appeal. Leave to appeal the sentence is
    denied.

[12]

The appeal is dismissed.

J.C.
    MacPherson J.A.

K.
    van Rensburg J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2021 ONCA 310

DATE: 20210512

DOCKET: C67990

Hoy, Hourigan and Zarnett J.J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Smith

Appellant

Christopher Smith, acting in person

Daniel A. Stein, acting as duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: May 4, 2021 by
    videoconference

On appeal from the conviction entered on
    December 4, 2019 by Justice Andrew J. Goodman of the Superior Court of Justice,
    sitting with a jury, and the sentence imposed on January 14, 2020.

REASONS FOR DECISION

[1]

As a result of a search by the police of a
    residence on Cannon Street in Hamilton, the appellant was charged with a number
    of offences: two counts of possessing, without lawful authority, identity
    documents that related to another person contrary to s. 56.1(1) of the
Criminal
    Code of Canada
, R.S.C., 1985, c. C-46; two counts of possessing, without
    lawful authority, a counterfeit mark contrary to s. 376(2)(b) of the
Code
;
    and one count of possessing cocaine contrary to s. 4(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.

[2]

The same items formed the basis of the identity
    document charges and the counterfeit mark charges  a drivers licence and
    Ontario health cards. They each bore the Ontario government trillium logo  the
    fact at the core of the allegation of a counterfeit mark. They each had a
    photograph of the appellant, but a different name and various dates of birth  the
    facts at the core of the allegation that they were identity documents that
    related to another person. They were each found in a box on the main floor of
    the Cannon Street premises.

[3]

The cocaine  approximately 4.5 grams  was found
    beneath clothing on the second floor of the Cannon Street premises.

[4]

The appellant was tried by a judge and jury. The
    central issue at trial was whether the identity cards and cocaine were in the
    possession of the appellant and whether he had knowledge of them. This issue
    largely turned on the appellants connections to the Cannon Street premises.

[5]

The trial judges charge to the jury explained
    that there were limited matters for them to consider. He instructed the jury to
    find that the drivers licence and health cards were identity documents that
    related to another person (as s. 56.1 requires), that the marks (the trillium
    logo) on them were counterfeit (as s. 376(2)(b) requires), and that there was
    no lawful authority for their possession (as both sections require). He also
    instructed the jury that there was no issue that the drug was cocaine.

[6]

After describing the essential elements of each
    count of each offence, the trial judge said:

Therefore, to help you in your analysis, the
    issues in this case for all of the charges related to Mr. Smith's alleged
    possession of the false identity cards in question, and/or the cocaine found in
    the residence. Therefore, the only questions or essential elements for all of
    the counts relates to your consideration of Mr. Smith's possession and his
    knowledge over the identity cards and/or the cocaine.

[7]

The trial judge then outlined for the jury the
    evidence from which an inference might or might not be drawn of possession and
    knowledge, instructing them that they needed to be satisfied that the essential
    elements were proven beyond a reasonable doubt for each count.

[8]

The jury convicted the appellant on all counts.

[9]

Given the conviction on the counterfeit mark
    charges, the trial judge entered a conditional stay of the convictions on the
    identity documents charges. He imposed a global sentence of four months
    incarceration after credit for pre-trial custody, allocating four months to the
    counterfeit mark charges and 90 days concurrent to the cocaine charge, to be
    followed by two years probation. He also made certain ancillary orders.

[10]

Duty counsel advanced six grounds of appeal on
    behalf of the appellant, which are discussed below. The other grounds in the
    Notice of Appeal were not pursued.

[11]

The first four grounds raised by duty counsel
    revolve around the interrelated contentions that the trial judge allowed
    inadmissible evidence to be led of suspected drug dealing at the Cannon Street
    premises and of the appellants involvement in it, that he failed to instruct the
    jury about the use of evidence across counts, and that he failed to instruct
    the jury not to engage in propensity reasoning. We decline to give effect to
    these arguments.

[12]

The appellant was represented by counsel at
    trial. No objection was made to the evidence now characterized as inadmissible.

[13]

The trial judge did not ignore his gatekeeping
    role. Rather, he exercised it in light of the theories and positions taken by
    the parties. The trial judge, on his own, limited the narrative evidence of a
    police officer about the suspected drug dealing that was the backdrop to the
    search of the premises, noting that the validity of the warrant was not
    challenged. It was also the trial judge who voiced a concern, and invited a
    defence objection that he gave effect to, when an officer offered opinion
    evidence about whether trafficking was taking place at the premises. Although
    the appellant now argues that a caution to the jury should have been given, the
    trial judges intervention would have made the lack of relevance of those lines
    of questioning clear to the jury. Moreover, no caution or limiting instruction
    to the jury was requested during trial. The evidence about drug dealing was not
    referenced in the judges charge, and a limiting instruction about it would
    have required a repetition of the evidence which may have been contrary to the
    appellants interests:
R. v. M.P.
, 2018 ONCA 608, 363 C.C.C. (3d) 61
    at para. 108.

[14]

Similarly, no request for a cross-count or
    propensity reasoning instruction was made, despite the evidence led by the Crown
    and counsels participation in a pre-charge conference. Nor was there any
    objection to the jury charge after its delivery.

[15]

While a cross-count or propensity instruction would
    have been appropriate, we do not view the failure to provide one in this case as
    a reversible error. In
R. v. Beausoleil
, 2011 ONCA 471, 277 C.C.C.
    (3d) 50, this court set out relevant considerations in determining whether such
    limiting instructions are required. These include the nature of the evidence,
    the issue to which the evidence is relevant, and the likelihood that an
    instruction would confuse the jury or draw attention to the discreditable
    conduct: at para. 20. The key question is whether the appellant was prejudiced
    by the absence of the instruction.

[16]

In our view, given the way the case was framed,
    the circumstances did not demand a cross-count instruction, nor was the
    appellant prejudiced by the absence of one. Importantly, the central evidence
    related to each count was the evidence that connected the appellant to the Cannon
    Street premises. This evidence was relevant to each count and was approached as
    such by both sides at trial. Although the jury was not told that guilt on one
    charge did not mean guilt on any other, the jury was told it needed to be
    satisfied on each count before convicting on that count.

[17]

A propensity reasoning instruction is given to
    address the risk that evidence of discreditable conduct (not forming the basis
    of the charge before the court) will be used by the jury to stigmatize the accused
    as a person of bad character and convict him on that basis, or in a manner that
    distracts them from the proper issues they are to consider. As noted, there was
    evidence that police suspicion of the appellant was the reason for surveillance
    of the Cannon Street premises, but that evidence was limited in scope including
    by rulings of the trial judge. The bulk of the evidence of the police officers
    dealt with what they observed during surveillance, what was found when the
    premises were searched, and the circumstances of the appellants arrest (away
    from the premises). These were relevant to the issues on the charges and were
    relied on by both sides. In this relatively brief trial with relatively
    focussed issues, the risks of moral or reasoning prejudice were not high.

[18]

The conclusion that the absence of a cross-count
    or propensity reasoning instruction did not prejudice the appellant is
    reinforced by the lack of request for such instructions and the lack of an
    objection to the charge at trial. Where the defence was  alerted to, and had a
    meaningful opportunity to raise such matters, but strategically chose not to, a
    complaint on appeal about missing instructions may be unavailing:
R. v.
    Graham
, 2015 ONCA 113, 330 O.A.C. 394 at para. 32.

[19]

Duty counsels other two grounds of appeal are
    that the convictions on the counterfeit mark charges were unreasonable, as the
    marks were not proven to be counterfeit, as opposed to being genuine but
    appearing on otherwise false documents.

[20]

We are satisfied that this argument was
    sufficiently referenced in the pre-charge conference to permit its
    consideration on appeal.

[21]

Section 376(2)(b) of the
Code
provides:

Every one who, without lawful
    authority,

(b) sells, or exposes for sale, or
    has in his possession a counterfeit mark, is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding fourteen years.

[22]

The
Code
defines mark to include the
    mark of a province of Canada. It is not disputed that the trillium logo on the
    drivers licence and health cards fits that description. The
Code
does
    not define counterfeit.

[23]

In
R. v. Sommani
, 2007 BCCA 199, 218
    C.C.C. (3d) 168, the court held that counterfeit marks are those that falsely
    purported to be genuine official marks: at para. 66. This statement was made
    in the context of a case where the accused had made false ID cards and argued
    (unsuccessfully) that the marks he had put on them did not look enough like the
    genuine government marks to be considered counterfeit versions. In
R. v.
    Ariri
, 2007 ONCJ 535, 75 W.C.B. (2d) 468, the accused possessed drivers
    licences in other persons names that had been illegally altered. They were
    genuine cards but with illicit photo and information substitutions. It was
    held that once the original photo was removed and a new one with new
    information substituted, the mark or design became a counterfeit: at paras.
    14, 48.

[24]

The appellants argument is that there was no
    evidence in this case as to how the licence or health cards came to be issued or
    appear as they did  that is, with the trillium logo, the appellants
    photograph, but a different name and birthdate(s). There was no evidence they
    were not issued by the government in that form. Put differently, there was no
    evidence that the government did not issue those cards at all (as in
Sommani
),
    or that they were issued by the government and then altered after issuance (as
    in
Ariri
).

[25]

Trial counsel raised this concern during the pre-charge
    conference. The trial judge noted that, I dont think thats a necessity the
    Crown has to prove, quite frankly. The document speaks for itselfI dont think
    youre going to make a lot of headway in that regard. Ultimately, despite the
    lack of evidence, the trial judge concluded that, the cards had a counterfeit
    mark, Im going to direct on that they find that. He then instructed the jury
    that there was no issue that the identity cards bore a counterfeit mark.

[26]

It is unnecessary for us to decide the precise
    scope of the counterfeit mark offence in s. 376(2) of the
Code
to
    resolve this appeal. Even on the scope contended by the Crown before us, the
    trial judge erred in giving the direction that he did. The result is that the convictions
    on the counterfeit mark counts cannot stand.

[27]

The Crown concedes that for a mark on a
    government issued document to be counterfeit, the document on which it appears
    must at least have been altered in some way after the government issued the
    document and applied the mark. While there was no direct evidence of
    alteration, Crown counsel argues that the jury could compare the impugned drivers
    licence and health cards to others legitimately issued to the appellant (which
    were also in evidence), and draw the conclusion that the impugned identity
    cards had been altered post-issuance.

[28]

Although there was evidence on which the jury
    could have made such a comparison, the trial judge took that issue away from
    the jury with his instruction to treat the marks as counterfeit.

[29]

Accordingly, the convictions on the counterfeit
    mark charges must be set aside. It follows that we must also set aside the
    conditional stay of the convictions on the identity documents charges. It was
    not argued, nor do we see any basis, why the net global sentence would be
    varied as a result of this change, other than to allocate the net term of four
    months incarceration to the identity documents charges.

[30]

Accordingly, the conviction appeal is allowed to
    the extent of setting aside the convictions on Counts 3 and 4 (the counterfeit
    mark charges). The conditional stay of the convictions on Counts 1 and 2 (the
    identity documents charges) is lifted. Leave to appeal sentence is granted, but
    the sentence appeal is dismissed, other than to vary it to provide that the
    sentence allocated to Counts 3 and 4 be allocated to Counts 1 and 2.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


WARNING

An order restricting publication in
    this proceeding was made under s. 517 of the
Criminal Code
and
    continues to be in effect.  This section of the
Criminal Code
provides:

517(1)         If the prosecutor or
    the accused intends to show cause under section 515, he or she shall so state
    to the justice and the justice may, and shall on application by the accused,
    before or at any time during the course of the proceedings under that section,
    make an order directing that the evidence taken, the information given or the
    representations made and the reasons, if any, given or to be given by the
    justice shall not be published in any document, or broadcast or transmitted in
    any way before such time as

(a)     if a preliminary inquiry
    is held, the accused in respect of whom the proceedings are held is discharged;
    or

(b)     if the accused in respect of whom the
    proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2)     Everyone who fails without
    lawful excuse, the proof of which lies on him, to comply with an order made
    under subsection (1) is guilty of an offence punishable on summary conviction.

(3)     [Repealed, 2005, c. 32, s.
    17]

R.S., 1985, c. C-46, s. 517; R.S.,
    1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Snache, 2021 ONCA 323

DATE: 20210513

DOCKET: M52434

Fairburn
    A.C.J.O. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Justice Snache

Applicant

Jay Herbert, for the applicant

Amy Alyea, for the respondent

Heard: May 12, 2021
by
    video conference

[1]

A non-publication order under s. 517 of the
Criminal
    Code
, R.S.C. 1985, c. C-46,
was imposed in this matter at the bail hearing in the court below. That order
    precludes the publication, broadcast, or transmission of any evidence taken,
    information given, representations made, and reasons given.

[2]

The decision in
R. v. Snache
, 2021 ONCA 323
, contains information
    covered by that order.

[3]

Accordingly, the decision will be available on
    the Court of Appeal for Ontarios website once the non-publication order ceases
    to be in effect.

[4]

In the interim, a copy of the full decision is
    available at the Registry of the Court of Appeal for Ontario at 130 Queen
    Street West, Toronto.