CITATION:
Ontario (Finance) v. Pilot Insurance
          Company, 2012 ONCA 33

DATE: 20120119

DOCKET: C53694

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

IN THE
          MATTER of the
Insurance Act
, R.S.O. 1990, c. I.8, as amended, and O. Reg.
          283/95 made thereunder;

AND IN THE MATTER of the
Motor
          Vehicle Accident Claims Act
, R.S.O. 1990, c. M.41;

AND IN THE MATTER of the
Arbitration
          Act
,
1991
, S.O. 1991, c.17;

AND IN THE
          MATTER of an arbitration.

BETWEEN

Her Majesty
          the Queen in Right of Ontario as represented
          by the Minister of Finance

Applicant (Respondent in appeal)

and

Pilot Insurance Company

Respondent (Appellant)

Todd J. McCarthy and Stephanie Zwicker Slavens, for the
          appellant

John Friendly, for the respondent

Heard: October 20, 2011

On
          appeal from the judgment of Justice Peter A. Cumming of the Superior Court of
          Justice dated October 4, 2010, with reasons reported at
2010
          ONSC 5361, 2 M.V.R. (6th) 112
.

H.S. LaForme
          J.A.:

INTRODUCTION

[1]

In Ontario, insurance law designates which insurance companies are
    liable to pay statutory accident benefits in the case of a motor vehicle
    accident.  The priority rules are set out in the
Insurance Act
, R.S.O.
    1990, c. I.8, s. 268.

[2]

Non-occupants who are involved in a motor vehicle accident must first
    submit their claim for statutory accident benefits to their own insurance
    company.  If they do not have insurance, then they must submit their claim to the
    insurer of the vehicle that struck them.

[3]

However, in circumstances where the striking vehicle is not
    insured or where the insurer of the striking vehicle is unknown, and no other
    vehicle was involved, non-occupants have recourse against the Motor Vehicle
    Accident Claims Fund (the Fund), established under the
Motor Vehicle
    Accident Claims Act
,
R.S.O. 1990, c.
    M.41.

[4]

Her Majesty the Queen
    in Right of Ontario as represented by the Minister of Finance administers t
he Fund.  The Fund is considered to be the payer of
    last resort because it provides compensation to people injured in motor
    vehicle accidents when no insurance exists to respond to their claim.

[5]

If, after receiving a
    claim, the Fund discovers that another insurer may be liable, the Fund can
    dispute its obligation to pay statutory accident benefits.

[6]

This appeal examines
whether the Fund can dispute its obligation to pay benefits
    to an injured cyclist with Pilot Insurance Company (Pilot).  This examination
    turns on whether the Fund complied with the requirements of s. 3 of
Disputes
    Between Insurers,
O. Reg. 283/95, when it notified Pilot that it was
    seeking to dispute liability.

BACKGROUND

Relevant provisions

[7]

Sections 2 and 3
of O. Reg.
    283/95 are
relevant to this appeal
.
[1]
O. Reg. 283/95 creates a scheme that applies to insurers disputing who is
    obligated to pay statutory accident benefits.

[8]

Section 2 directs the first insurer that receives a completed
    application for statutory accident benefits to
pay those benefits to the injured applicant
:

2.
(1)  The first insurer
    that receives a
completed application
for benefits is responsible for
    paying benefits to an insured person pending the resolution of any dispute as
    to which insurer is required to pay benefits under section 268 of the [
Insurance
    Act
].  [Emphasis added.]

[9]

Section 3(1) gives an insurer 90 days
    from receipt of a completed application to dispute its obligation to pay
    statutory accident benefits:
[2]

3.
(1)    No insurer may
    dispute its obligation to pay benefits under section 268 of the Act unless it
    gives written notice within 90 days of receipt of a
completed application
for benefits to every insurer who it claims is required to pay under that
    section.  [Emphasis added.]

[10]

The 90-day notice period in s.
    3(1) is subject to extension by s. 3(2).  Section 3(2) provides an exception for
    cases in which, despite the reasonable efforts of the insurer seeking
    indemnity, 90 days is not enough to determine whether another insurer is
    liable:

(2)
An insurer may
    give notice after the 90-day period if,

(a) 90 days was not a sufficient
    period of time to make a determination that another insurer or insurers is
    liable under section 268 of the Act; and

(b) the insurer made the
    reasonable investigations necessary to determine if another insurer was liable
    within the 90-day period.

[11]

As emphasized above, receipt
    of a completed application triggers obligations under both ss. 2 and 3.

[12]

This court recently dealt
with the meaning of completed
    application for the purpose of triggering the first insurers obligation to
    pay benefits to the injured person under s. 2 in
ING Insurance Company of Canada v. TD
    Insurance Meloche Monnex
, 2010
    ONCA 559, 103 O.R. (3d) 270
.
[3]

[13]

The case we our
    deciding deals with
the meaning of
    completed application for the purpose of triggering the 90-day notice period in
    s. 3.

The facts

[14]

A cyclist was injured by an
    unidentified motorist on November 30, 2006.  He had no insurance of his own and
    thus, on December 19, 2006, submitted a signed application for statutory
    accident benefits to the Fund.  He did not attach a police report as he was
    unable to obtain one.

[15]

The Fund received the cyclists application
    on March 7, 2007.  Seeking to dispute its obligation to pay benefits to the
    cyclist, the Fund took steps to determine the insurer of the striking vehicle.

[16]

On May 8, 2007, the Fund obtained a statement from the cyclist.  This
    statement informed the Fund that the driver of the vehicle that struck the
    cyclist made a 911 call on her cell phone to inform police of the accident.

[17]

In September 2007, an investigator for the Fund identified and spoke to
    the police officer who had responded to the accident.  The police officer told
    the investigator that his notes had gone missing and that it was possible he
    had not written an official accident report.

[18]

The police advised the investigator that there were only two ways to
    obtain information about the 911 call:
through a
    Freedom of Information request or by way of a court order.

[19]

The Funds investigator made two
    unsuccessful Freedom of Information requests to obtain the 911 call records.
    The last of these requests was denied on January 17, 2008.

[20]

On May 22, 2008, the Fund wrote to Kingsway General Insurance Company to
    inquire about Kingsways position on priority with regard to the accident.  The
    Fund had received information suggesting that Kingsway might be liable, but
    this later turned out to be incorrect.

[21]

Kingsway did not respond to the Funds letter.  The Fund turned the
    matter over to its legal counsel.  Counsel served Kingsway with a
Notice of Commencement of Arbitration
on July
    9, 2008.  Then, on August 21, 2008, counsel filed a motion to obtain the
    particulars of the 911 call.

[22]

On September 4, 2008, the Fund obtained an unopposed court order to
    provide the particulars of the 911 call.  On September 8, 2008, the Fund
    received the 911 call records from Toronto Police Services.  The records
    identified the driver of the vehicle that struck the cyclist.

[23]

On September 12, 2008, a driver record and insurance search provided
    contact information for the driver.  On October 8, 2008, the driver confirmed
    her involvement in the accident and that Pilot was her insurer.

[24]

On October 10, 2008, Pilot was put on notice
that the Fund was disputing its obligation to pay
    benefits.

Pilot, therefore, was put on
    notice some one and a half years after the Fund had received the cyclists
    application without the police report, but within 30 days after the Fund had
    identified the driver.

[25]

The Fund then initiated arbitration
    against Pilot, seeking to have Pilot held responsible for paying the cyclists
    statutory accident benefits.

The issue arbitrated

[26]

The issue that proceeded to arbitration was straightforward: did
    the Fund provide written notice of its intent to dispute priority within 90
    days of receiving a completed application for statutory accident benefits, as
    required by s. 3(1) of O. Reg. 283/95, and if not, do the saving provisions of
    s. 3(2) apply?

The arbitrators decision

[27]

The arbitrator held that the Fund had not met the notice requirements
    of s. 3, so Pilot could not be held responsible for covering the costs of the
    cyclists statutory accident benefits.

[28]

The arbitrator relied on
R. v. Lombard Ins. Co. of Canada
,
    2010 ONSC 1770, 100 O.R. (3d) 51, in which Perell J. held that the term
    completed application could have a different meaning for establishing whether
    an insured has made out a claim for benefits (pursuant to s. 2) than it does for
    calculating the deadline for contesting priority between insurers (pursuant to
    s. 3).  When a police report is unavailable, an insured need not submit such a
    report for her application to be treated as complete for the purpose of obtaining
    benefits under s. 2.  However, the application is not treated as complete for
    the purpose of starting the insurers 90-day clock for disputing its liability
    to pay those benefits with other insurers under s. 3 as long as the insurer is
    diligent in investigating the missing information.

[29]

The arbitrator held that the Fund
    had not been
diligent in investigating the missing information and so
    failed to meet the 90-day deadline when it put Pilot on notice on October 10,
    2008.
Following
Lombard
, the arbitrator
    held that the Fund had access to the information that would have been in the
    police report once it obtained the 911 call records in September 2008.
    However, the Fund was estopped from claiming that it had not received a
    completed application until September 2008 because the Fund delayed in seeking
    a court order to obtain those call records between January 2008 (when its last
    Freedom of Information request was denied) and August 2008 (when it brought the
    motion to obtain the court order).

[30]

The arbitrator held that the Fund should
    have moved for the court order far earlier than it did  by February 2008 at
    the very latest  and 90 days from that date would have been sufficient time to
    obtain the information.  So the Fund did not come within the saving provisions
    of s. 3(2).

The application judges
    decision

[31]

The application judge allowed the Funds appeal, holding that the Fund
    had met the notice requirements of s. 3.  The application judge agreed with the
    arbitrator that the principles set out in
Lombard
apply to this case;
    however, he held that the arbitrators ruling did not accord with those
    principles.

[32]

At para. 29 of his reasons, the application judge expressed the law as
    follows:

The case law recognizes
    that receipt of an application may be functionally adequate so as to be
    treated as a completed application for the purpose of paying benefits under
    s. 2 while not being functionally adequate so as to be treated as a
    completed application under s. 3 for the purpose of triggering the 90 day limitation
    period to exercise its legislated rights to determine the priority obligation
    as between competing insurers.

[33]

The application judge concluded that the Fund did not have a functionally
    adequate application  so as to be treated as a completed application under s.
    3  until the Fund obtained the 911 call records in September 2008, and thus
    met the 90-day deadline when it put Pilot on notice on October 10, 2008.  This was
    because, until the 911 call records were obtained, the Fund did not have
    sufficient information to identify the insurer of the unidentified motorist.

[34]

The arbitrators conclusion that the Fund did too little
    between January and August 2008 to locate the motorist did not, in the
    application judges view, result in the Funds receiving a completed
    application prior to September 2008.
The application judge found the
arbitrators
conclusion to be
inconsistent with
    the evidence that, during that time, the Fund was pursuing the possibility that
    another insurer might be responsible.

[35]

The application judge also held that the
evidentiary record did not support the arbitrators finding that the Fund was
    estopped from asserting that it did not have a completed application until
    September 2008.  In his view, the elements of estoppel by representation had
    been made out.

NATURE OF THE
APPEAL

[36]

The issue on appeal is whether the
    application judge erred in reversing the arbitrators decision that the Fund
    did not comply
with the notice requirements under s.
    3
.

[37]

Pilot argues that the application judge erred because the Fund
    had a functionally adequate application on March 7, 2007
when the Fund received the cyclists application
.
    On that date, the Fund had sufficient information to conduct investigations
    within 90 days with the assistance of an investigator or counsel.  At that time
    the Fund could have and should have, applied for a Freedom of Information request
    or applied to the court for an unopposed order to produce the 911 call records
    from the police.  In other words, it should have conducted the same process in
    March 2007 that it successfully conducted early in the second half of 2008.

[38]

The Fund makes two arguments.
    First, it argues that the application judge was correct to hold that the Fund did
    not receive a functionally adequate application until it received the 911
    call records in September 2008.

[39]

Second, the Fund argues that, even
    if the 90-day notice period began on March 7, 2007, it would have been
    impossible, on the facts as found, for the Fund to have put Pilot on notice
    within 90 days of that date.  The Fund relies on s. 3(2) to say that the notice
    period could not have expired at that point as the Fund exercised due diligence
    to determine if another insurer was liable and 90 days was not a sufficient period
    of time in which to do so.

[40]

For the following reasons, I would allow Pilots appeal.

[41]

I agree with the decision of the
    arbitrator.  As I will explain, the arbitrators evidentiary findings support
    the conclusion that the Fund had a functionally adequate application, and
    therefore a completed application, in September 2008.  However, because the
    Fund was not diligent in investigating the missing information, it cannot claim
    that it did not receive a completed application until September 2008.  Rather,
    the Fund ought to have pursued the information by at least February 2008 and
    was required to put Pilot on notice under s. 3 by May 2008.

ANALYSIS

[42]

I would adopt the approach that
    has developed through the jurisprudence  particularly as set out by Perell J.
    in
Lombard
 to determine when an insurer has received a completed
    application for the purposes of s. 3 of O. Reg. 283/95.  That is to say, and
    as I will discuss below, a completed application is one that is:

(1)

genuinely complete;

(2)

functionally adequate for its legislated purpose; or

(3)

treated as complete based on the conduct of the first
    insurer.

Genuinely complete

[43]

A genuinely complete application
    is one that is filled out on the Application for Accident Benefits (OCF-1) form
    and contains any required attachments.  Part 11 of the OCF-1 form requires
    three documents to be attached to the applicants form  one of which is a
Motor
    Vehicle Accident (Police) Report  in cases where
the applicant, as a last resort,
applies to the Fund for the payment of
    accident benefits
.

[44]

The cyclist in this case clearly
    did not submit a genuinely complete application, as the police report was
    missing.

[45]

However, the jurisprudence dealing
    with the interpretation of completed application in s. 3 as well as in s. 2
    of O. Reg. 283/95 has looked beyond the plain meaning of this phrase and
    interpreted it purposively.

Functionally adequate

[46]

An application for benefits that
    is not genuinely complete can nevertheless constitute a completed application
if it
is
    functionally adequate for its legislated purpose.  This interpretation applies
    to both ss. 2 and 3.

Section 2

[47]

In
ING
, this
    court held that a functionally adequate application constitutes a completed
    application under s. 2.  In doing so, at para. 51, this court
endorsed the following proposition set out in
Liberty
    Mutual Insurance Co. v. Commerce Insurance Co.
(2001), 36 C.C.L.I. (3d) 269
    (Ont. S.C.):

[A]n application for accident
    benefits need not be on a certain form in order to be valid  it need only
    provide sufficient particulars to reasonably assist the insurer with processing
    the application, identifying the benefits to which the applicant may be entitled,
    and assessing the claim  the insurer only needs sufficient information to
    meaningfully move forward or commence the process of adjusting the claim...

[48]

This court went on to hold, at para. 60 of
ING
, that [o]nce
    an insurer has received sufficient information that it can obtain any further
    necessary information, it must obtain that additional information and begin to
    pay benefits.  The insurer is not permitted to rely on shortcomings in
    written documentation as grounds for refusing to pay benefits.

[49]

This court
held that this
    flexible approach to determining whether certain documents amount to a
    completed application  as opposed to a formalistic one  furthers the
legislative goal of
pay now, dispute later,
    as it encourages the prompt payment of benefits to injured applicants.

Section 3

[50]

Consistently, a
functionally adequate application constitutes a completed
    application under s. 3.  An insurer is not permitted to rely on shortcomings
    in written documentation as grounds for claiming that the 90-day notice period
    has not commenced.  As soon as the insurer has sufficient information
to
    notify another insurer that it is disputing liability to pay the benefits, the
    90-day notice period starts running.

[51]

This interpretation advances
    the goal of resolving disputes between insurers in a timely and efficient
    manner.

[52]

In this case, Pilot
    and the Fund agree that a functionally adequate application is sufficient to
constitute a completed application under s. 3.  They
    agree that a
completed application may be different
    for purposes of s. 2 and s. 3.  They agree that the application judge applied
    the correct test.  Where they part company is on when a functionally adequate
    application existed.

Determining when an
    application is functionally adequate

[53]

The purpose of the
section of
O. Reg. 283/95
that
    is being considered (
i.e.
, s. 2 or s. 3) will determine whether an
    application is functionally adequate.

[54]

As set out in
ING
,
to be functionally adequate for the purpose of s. 2  and
    thus trigger the first insurers obligation to pay benefits to the injured
    person  an application must
contain
    sufficient information to allow the insurer to assess and process the injured
    persons claim for benefits.

[55]

To be functionally adequate for the purposes
    of s. 3  and thus trigger
the 90-day period an insurer has to notify
    another insurer that it is disputing its obligation to pay benefits  an
    application must
contain sufficient information to allow the
    first insurer to
give notice of dispute to another insurer
.
    This interpretation applies in this case.

Application to this case

[56]

The Fund had
    sufficient information to give written notice to Pilot for the purpose of s. 3
    when the 911 call information was obtained in September 2008.  Before this, the
    Fund did not know the identity of the
motorist who struck the cyclist
    and so could not determine the insurer of the motorists vehicle.  Once it
    obtained the missing information of the motorists identity, the Fund had
    sufficient external information to supplement the standard OCF-1 form and make
    it complete.  At this point, the Fund had an application that was functionally
    adequate for the purpose of notifying Pilot.

[57]

The
    analysis, however, does not end there.

Completed
    application based on the first insurers conduct

[58]

Another
    principle that has developed in the jurisprudence involves circumstances where
    the fi
r
st insurer receives an
    inadequate application but is treated as if it had received a completed
    application because of its conduct.
Waiver,
    estoppel, delay and deflection have all been seized on as examples of such
    conduct.

[59]

This case is concerned
    with whether an insurer has failed to act diligently to obtain information that
    is missing from an application form when a police report is not available.  The
    90-day clock will start to run when an insurer fails to fulfill its obligation
    to take steps to ascertain the missing information:
Lombard
, at para.
    63.

[60]

In this case, the evidentiary record
    supports the arbitrators conclusion that the Funds delay in pursuing the 911
    call information forms the basis for treating the Fund as if it had received a
    completed application in February 2008.

[61]

The
    arbitrators finding that
the
    Fund failed to diligently investigate the claim is owed deference, as is his
    finding that the Fund should have moved for the court order
to obtain the 911 call records
in
February 2008 at the very latest
.

[62]

The arbitrator found that the Fund
    was aware of the two possible ways to acquire the 911 call information in this
    case: (1) through a Freedom of Information request, or (2) through a court
    order.  When the last Freedom of Information request was denied in January
    2008, the Fund was obligated to continue to pursue the information using other
    means.  T
he arbitrator found that the Fund delayed
    unnecessarily in seeking a court order to obtain the 911 call records that
    revealed the information necessary to proceed against Pilot.  In my view, these
    findings
were entirely
    reasonable given the evidence before the arbitrator.

[63]

The application
    judges observation, at para. 18 of his reasons, that the Fund did take some
    steps to investigate between May and August 2008, is not sufficient to disturb
    the arbitrators findings.

[64]

The Fund was required to exercise
    reasonable diligence in pursuing the missing information.  The Fund was one
    step away from turning an incomplete application into a functionally adequate application,
    but did not act to obtain the court order for more than seven months after the
    Freedom of Information route proved unsuccessful.  Given the short notice
    period established by s. 3, it would be contrary to the legislative intent to
    allow the Fund to sit on the application without adequate investigation for
    months at a time.

[65]

I agree with the application judge
    that the elements of estoppel by representation were not made out.
There is no suggestion that Pilot
    detrimentally relied on the Funds conduct  I imagine that Pilot had no idea
    that the accident had occurred.  However, in my view, the application judge
    misinterpreted the arbitrators reference to estoppel as referring narrowly to
    estoppel by representation.  The arbitrator indicated that he was relying on
Lombard
for the principle that the first insurer should be treated as receiving a
    completed application when it does not act diligently in attempting to obtain
    missing information.  The arbitrators findings relate to the Funds failure to
    exercise diligence in obtaining the missing information.  The arbitrator made
    no reference to the elements of estoppel by representation.  In my view, the
    arbitrator relied on the Funds delay in investigating the missing information,
    not on estoppel by representation, as the basis for his conclusion.

S
aving provisions

[66]

Given this result and the reasons for it, the Fund
    cannot rely on the saving provisions in s. 3(2).

DISPOSITION

[67]

For these reasons, I would allow the appeal.
    The order of the arbitrator  that
it is the responsibility of the Fund
    to pay accident benefits to or on behalf the cyclist  should be restored.

[68]

I would award the appellant its
    costs of the appeal in the agreed upon amount of $7,500, inclusive of
    disbursements and HST.  Given the result, I would also award the appellant its
    costs before the application judge fixed in the agreed upon amount of $5,000
    inclusive of disbursements and HST.

RELEASED:

JCM                                                            H.S.
    LaForme J.A.

JAN 19 2012                                               I
    agree M.C. MacPherson J.A.

I
    agree G.J. Epstein J.A.

[1]
This regulation was amended in 2010 by O. Reg. 38/10.  Sections 2 and 3 were
    amended with respect to accidents that occur on or after September 1, 2010.

[2]
The 2010 amendments to the regulation now provide that [i]f the dispute
    relates to an accident that occurred on or after September 1, 2010, the Fund
    may give a notice under subsection (1) after the 90-day period and is not
    required to comply with subsection (2). O. Reg. 38/10, s. 4.

[3]

ING Insurance Company of Canada v. TD Insurance Meloche Monnex
was released after the two main cases that the arbitrator and application judge
    relied upon, namely,
R. v. Lombard Ins.
    Co. of Canada
,
2010 ONSC
    1770, 100 O.R. (3d) 51,
and
ING Insurance Co. of Canada v. State Farm Insurance Companies
(2009), 97 O.R. (3d) 291 (S.C.).


COURT OF APPEAL FOR ONTARIO

CITATION: Placzek v. Green, 2012
    ONCA 45

DATE: 20120126

DOCKET: C52959

Doherty, LaForme and Hoy JJ.A.

BETWEEN

Carmen Placzek

Respondent (Plaintiff)

and

Albert Green

Appellant (Defendant)

Todd J. McCarthy, for the appellant (defendant)

Barbara Legate and Sue Noorloos, for the respondent
    (plaintiff)

Heard: January 19, 2012

On appeal from the judgment of Justice H.A. Rady of the Superior
    Court of Justice, dated October 15, 2010.

ENDORSEMENT

[1]

At the end of oral argument, we advised counsel that the appeal
    would be dismissed with reasons to follow.  These are those reasons.

[2]

The respondent, Carmen Placzek, was injured in a rear end
    collision.  The appellant, Albert Green, was the driver of the vehicle that
    struck the vehicle in which the respondent was riding.  Liability, while not
    conceded, was not strongly contested.  Damages were very much in issue.

[3]

The respondent had suffered from severe fibromyalgia for many
    years prior to the accident.  The appellant argued that to the extent that the
    respondents physical problems interfered with her life after the accident,
    those problems were attributable in whole or in the main to the serious
    pre-existing condition and not to the relatively minor accident involving the
    vehicle driven by the appellant.

[4]

The trial judge struck the jury at the outset of the trial.  She
    ultimately found the appellant liable.  With respect to damages, the trial
    judge held that despite the respondents prior physical problems, the injuries
    suffered as a result of the car accident had caused significant problems for
    the respondent.  The trial judge ultimately awarded damages in the amount of
    $919,237.  A large portion of that amount went toward damages attributable to the
    lost income and lost future income claims.

[5]

There are two grounds of appeal.

I

The Decision to Discharge the Jury

[6]

As indicated above, the trial judge discharged the jury at the
    outset of the trial.  The decision to discharge a jury is a discretionary one.
    This court will defer to the exercise of that broad discretion unless it is
    shown that the discretion was exercised on a wrong principle or that its
    exercise in the circumstances can properly be characterized as arbitrary,
    capricious or unreasonable.  Clearly, trial courts are given considerable leeway
    in exercising their discretion on this question:
Hunt v.
Sutton
(2002), 60 O.R. (3d) 665 at para. 52 (C.A.);
Cowles v. Balac
(2006), 83
    O.R. (3d) 680 at paras. 31-46 (C.A.).

[7]

The trial judge recognized that the right to trial by jury was a
    substantive one and that the respondent bore the onus of demonstrating that the
    justice of the case would be better served by the discharge of the jury.  Nor
    is it argued that the trial judge erred in making her determination prior to
    the commencement of the evidence.

[8]

We had the benefit of a careful and critical review of the trial
    judges reasons for discharging the jury.  As we read those reasons, paras. 16
    through 20 speak to the anticipated complexity of the evidence relevant to the
    damage assessment.  In the trial judges view, that complexity arose out of
    several aspects of the evidence.  First, there was the respondents
    pre-existing medical condition and the need to determine the impact of that
    condition on the respondents post-accident medical condition (paras. 16-18).
    Second, there was competing expert evidence relating to the respondents loss
    of income and loss of future income claims.  The respondent was a self-employed
    realtor and there were several factual variables relevant to her lost income
    claims.  Those variables complicated the quantification of that claim (para.
    19).  Third, there was competing and somewhat complex medical, engineering and
    biomedical evidence (para. 20).

[9]

Based on these evidentiary complexities, the trial judge
    concluded, at para. 21:

As a result, of all of the foregoing I am satisfied that this
    case is of sufficient complexity that it is in the interest of justice that the
    jury notice be struck.

[10]

It was open to the trial judge to reach this conclusion.  While
    counsel for the appellant mounted a powerful argument in support of his
    position that this was not really a complicated case at all, we cannot describe
    the trial judges characterization of the evidentiary complexity as arbitrary,
    capricious or unreasonable.  Other judges may have reached a different
    assessment of the complexity of the evidence and declined to strike the jury.  The
    fact that other judges may have exercised their discretion differently is, of
    course, not a basis upon which this court can interfere with this trial judges
    exercise of her discretion.

[11]

The trial judge, after indicating that the evidentiary complexity
    satisfied her that the interests of justice required that the jury notice be
    struck, went on to address certain other factors which, in her view, also
    supported the exercise of her discretion in favour of striking the jury (paras.
    22-24).  We agree with counsel for the appellant that some of these
    considerations were irrelevant to the question of whether the jury should be
    struck.  For example, the trial judge speculated about the manner in which some
    of the evidence would be put before the jury and the advantages or
    disadvantages that one side or the other might have as a consequence.  This
    kind of speculation is unhelpful and had no relevance to whether the jury
    should be struck before the trial started.  Similarly, the concerns expressed
    by the trial judge about the position taken by the appellant on liability could
    not, in our view, provide any basis for striking the jury.  The determination
    of liability would not have posed any problem for a jury in this case.

[12]

The trial judge, however, made it clear in her reasons that she
    struck the jury because of the anticipated evidentiary complexity on matters
    relating to damages.  She clearly would have struck the jury without regard to
    the other factors, some of which we find to be inappropriate considerations.
    Errors in respect of those matters did not taint the exercise of the trial
    judges discretion.

[13]

We would not interfere with the trial judges decision to strike
    the jury.

II

Damages

[14]

The appellant argues that the trial judge did not attempt to
    quantify the damages based on a critical assessment of the evidence, but
    instead simply picked a point somewhere in the middle between the various
    scenarios advanced by the parties.  We see no support for this submission in
    the record.  The trial judge decided that the respondents post-accident
    problems were attributable to the accident.  She found that as a result of the
    accident, the respondents working life was shortened and that she would work
    only part-time for part of that shortened working life.  These findings were
    available on the evidence and drove the damage calculation, especially as it
    related to the calculation of the respondents loss of income claims.

[15]

The appellant has not offered any basis upon which this court
    should interfere with the damage assessment.

III

CONCLUSION

[16]

The appeal is dismissed.  The respondent is entitled to her costs
    in the amount of $25,000, inclusive of disbursements and applicable taxes.

Doherty J.A.

H.S. LaForme J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Armstrong, 2012
    ONCA 57

DATE: 20120130

DOCKET: C51658

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Armstrong

Appellant

Dale E. Ives, for the appellant

Grace Choi, for the respondent

Heard and released orally:  January 27, 2012

On appeal from the conviction entered on November 3, 2009
    and the sentence imposed on December 8, 2009 by Justice Wayne Rabley of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of robbery of a convenience store.
    The Crown alleged he was a party by having scouted out the store before the
    robbery.

[2]

The appellant argues that the trial judge misapprehended some
    evidence and did not give effect to other evidence that could have raised a
    reasonable doubt.  We see no basis to interfere.

[3]

The trial judge did not misapprehend any of the evidence that was
    essential to his finding of guilt, nor any evidence that could possibly have
    affected the outcome.

[4]

The case against the appellant was overwhelming.  The store clerk
    knew the appellant who was a regular customer.  He identified the appellant as
    the person who entered the store and left without buying anything shortly
    before the masked robber entered.  Neighbours living close to the store
    testified about seeing the interactions of two men outside the store just
    before one of them put a black shirt around his face in the presence of the
    other.

[5]

After the masked man came out of the store, witnesses at various
    vantage points observed two men running away from the store and eventually into
    the back unit of 110 Delaware Street.  Within minutes, the police found two men
    in that unit, one of whom was the appellant.  There was evidence that the two
    men had been cutting or shaving their hair and changing their clothes in the
    unit.  The police found a roll of cash totalling $270 underneath a laundry
    basket in a cupboard.  This was the amount the store owner estimated was stolen
    during the robbery.

[6]

The appellant also argues that the trial judge wrongly used the
    appellants utterances to the police to draw an inference of guilt.  We do not
    agree with this argument.  In any event, there was no prejudice.  The remaining
    evidence was overwhelming as to the appellants guilt.

[7]

In the result, the appeal is dismissed.

Dennis OConnor
    A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bariamis, 2012
    ONCA 52

ATE: 20120127

DOCKET: C53125

Feldman, Watt JJ.A. and Dambrot J. (
ad hoc
)

BETWEEN

Her Majesty The Queen

Respondent

and

Panayiotis Bariamis

Appellant

John Weisdorf, Q.C., for the appellant

David Finley, for the respondent

Heard and endorsed: January 25, 2012

On appeal from the conviction entered on October 14, 2010
    and the sentence imposed on January 7, 2011 by Justice John McMahon of the Superior
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant abandons his conviction appeal, and seeks leave to
    appeal his sentence of one year for fraud and forgery plus three years
    probation.

[2]

In argument, the appellant sought to have the sentence varied to
    an intermittent sentence of 90 days to be imposed in order to allow the
    appellant to earn money for restitution. In our view, the sentence imposed by
    the trial judge was within the range and not unfit. The appellant is to be
    commended for continuing to make restitution to the victims. However, we see no
    basis to interfere with the sentence that was imposed. Leave to appeal sentence
    is granted but the appeal is dismissed.


WARNING

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

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

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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

CITATION:
R. v. Butts, 2012
          ONCA 24

DATE: 20120113

DOCKET: C52357

COURT OF APPEAL FOR ONTARIO

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Christian Butts

Appellant

Timothy E. Breen, for the appellant

Matthew Asma, for the respondent

Heard:
November 8, 2011

On appeal from the conviction imposed by Justice T. Bielby of
          the Superior Court of Justice dated August 11, 2009.

By the Court:

[1]

The appellant was convicted, following a jury trial, of one count of
    sexual assault
and sentenced to forty months imprisonment. He raises two
    grounds of appeal against the conviction:

1)    that the trial
    judge erred by excluding evidence that the complainant had consensual sex with
    another man shortly after the alleged sexual assault; and

2)    that the trial
    judge erred by leaving it open for the jury to consider the complainants incapacity
    to consent as a basis for liability.

1. Exclusion
    of the complainants subsequent sexual conduct

[2]

The 16 year old female complainant first met the appellant, who she knew
    by the name Jamie, approximately one month prior to the alleged sexual assault.
    After the complainant was kicked out of her parents home, her boyfriend, I.O.,
    made arrangements for her to stay at the appellants apartment, where I.O. had
    also recently begun living. On the evening of the alleged sexual assault, the
    complainant, the appellant, I.O. and another friend, M.W., were at the
    appellants apartment.

[3]

The complainant was drinking and vomited in the living room. She
    proceeded to the bathroom, where she vomited again, and then moved to the
    bedroom, where she was upset and crying. A short time later, the appellant went
    into the bedroom. According to the complainant, the appellant then forcibly
    removed her clothing and had non-consensual intercourse with her.

[4]

After this incident, the complainant returned to the living room. She
    was still upset and went for a walk with M.W. The complainant admitted, in a
    statement to the police, that she engaged in consensual intercourse with M.W. in
    a stairwell approximately 1-2 hours after the alleged assault.

[5]

At the outset of the trial, the appellant's trial counsel brought a
Seaboyer
application for an order pursuant to the
Criminal Code
, s. 276, to
    permit the appellant to lead evidence of the subsequent sexual encounter with
    M.W. The trial judge disagreed with the defence counsel`s argument that the
    evidence of the subsequent sexual encounter [was] relevant to the narrative of
    events and would assist the jury in understanding how the events unfolded. He
    dismissed that application on the ground that, in the absence of expert
    evidence [as] to how the complainant was supposed to have acted within an hour
    or two of the alleged assault, the evidence of the subsequent sexual conduct
    had little probative value.

[6]

M.W. was then called by the defence and testified that when the
    complainant and the appellant were in the bedroom, he heard sounds of giggling,
    laughing and what sounded like two people engaged in consensual sex. Crown
    counsel cross-examined M.W. to the effect that the complainant wanted to be
    left alone when she was in the bathroom, despite the attempts by M.W. and I.O.
    to comfort her. Crown counsel also questioned M.W. about how the complainants
    emotional state could change so rapidly from being upset in the bathroom to
    apparently giggling and having consensual sex with the appellant. She also
    asked questions about the complainants emotional state after her sexual
    encounter with the appellant. For example:

Q.        Right, Now, Im going to suggest to you
    that when you went out into that stairwell with her, she was not behaving
    normally at first, was she?

A.        She was  she was pretty straightforward.
    Like, she was talking to me

Q.        You were

A.        and

Q.        Im sorry.

A.        She was talking to me and I was just
    trying to cheer her up and she was slowly getting back to normal, and she was
    laughing with me. We were cracking jokes

Q.        Right.

A.        and everything seemed fine.

Q.        Which would make sense because youre a
    friend of hers; correct?

A.        Mhmm.

Q.        Right. But when you first went out there
    with her, she was still upset; right?

A.        Yes.

Q.        Yes. And you were concerned that she may
    not be okay; correct?

A.        Yes.

...

Q.  So you did have some concerns about [the
    complainants] emotional state in that stairwell, didnt you?

A.

Yes, I did.

Q.        Yes. And that evening, throughout the evening,
    youve already told us that [the complainant] wanted you and [I.O.] to leave
    her alone when she was in the bathroom; correct?

A.        Thats correct.

Q.        Right. She really didnt want to be
    around anybody that evening, did she?

A.        At that  at the moment in the bathroom,
    she didnt want to be around anybody while she was crying.

[7]

Crown counsel also asked the following questions about the complainants
    boyfriend:

Q.        you knew that she and [I.O.]
    had been in a relationship; correct?

Q.        And Im going to suggest to
    you that they were in fact in a relationship on this particular date?

Q.        she and [I.O.] were fine
    with each other that night; isnt that correct?

[8]

These questions elicited evidence that the complainants boyfriend was
    present in the apartment that night and the complainants relationship with him
    that night was fine.

[9]

Following the cross-examination, the appellants trial counsel renewed
    the
Seaboyer
application on the ground that the Crown was advancing the theory
    that the complainants emotional condition was such that she would not have
    consented to sex. The appellants counsel argued that the evidence that she had
    engaged in consensual sex with M.W. very shortly thereafter, when she was still
    in an emotional state, should now be admissible. The Crown argued that the
    cross-examination was targeted at undermining M.W.s credibility.

[10]

The trial judge dismissed the second
Seaboyer
application on the
    basis that the objection of the defence counsel was to suggestions made by the
    Crown and not to actual evidencebefore the court. As such, any resultant
    prejudice could be dealt with by instructions to the jury. The trial judge also
    cautioned Crown counsel not to suggest in her jury address that it was
    unreasonable to think a person can go from being on the floor to having, you
    know, giggling sex a half an hour later. In response to a question from Crown
    counsel, the trial judge clarified that he was instructing Crown counsel to
    avoid any reference to the time element between the floor and the bedroom. He
    also stated that there was no evidence about human behaviour, how behaviour
    changes over time, et cetera before the court and to therefore stay away from
    that point.

[11]

The trial judges ruling prevented the defence from establishing in the
    re-examination of M.W. that despite the complainants upset state and her
    fine relationship with her boyfriend who was there that night, she had she
    engaged in consensual sex in the stairwell shortly afterwards.

[12]

In his jury address, trial counsel for the appellant suggested, among
    other things, that the complainant was upset with her family, depressed, sick
    from drinking and that her relationship with I.O. was not really on. He
    suggested that what you have here is all the makings for someone being open to
    looking for comfort and acceptance, if even momentarily, in the intimacy of a
    sexual encounter.

[13]

Crown counsel, in her jury address, stated that it was the Crowns
    theory that the appellant saw the complainant in a weak and vulnerable state
    and preyed upon her to his own advantage. Crown counsel pointed out that the
    complainant trusted both M.W. and I.O. She had known M.W. for some time and
    I.O. was her boyfriend. The appellant was different; the complainant had only
    known him for a very short time and she testified that she had no romantic or
    sexual interest in him.

[14]

As to defence counsels suggestion that the complainant was seeking
    comfort from the appellant, Crown counsel responded:

Once again, ladies and gentlemen, I urge you to
    rely upon your common sense. The evidence from [the complainant] is that she
    was dating [I.O.] She was having problems with her parents because they did not
    approve of [I.O.] She did not stop seeing [I.O.] despite the problems it caused
    with her parents. She was in fact, living with [I.O.] at Jamies place. Her loyalty
    is to Jamie [sic].

[15]

Crown counsel went on to refer to the attempts by M.W. and I.O. to
    comfort the complainant in the bathroom to bolster her argument that it was
    unlikely she would seek comfort from the appellant:

M.W. further said I.O. was trying to comfort [the
    complainant] and that she expressed the desire to be left alone. Further, M.W.
    himself said he tried to comfort [her] and she again wanted to be left alone.
    Does it make any sense whatsoeverthat if [the complainant] does not want the
    comfort of her boyfriend and her close friend that she would want the comfort
    of the defendant, a man she barely knew a man she referred to as only an
    acquaintance, in whom she had no sexual or romantic interest?

I urge you to find, ladies and gentlemen, that that
    suggestion defies common sense. [The complainant] denies ever wanting comfort
    from Jamie and it is clear from the evidence of [M.W.] she wanted comfort from
    nobody. She wanted to be alone.

[16]

Crown counsel then said the following, which, when read in the context
    of the cross-examination and overall theory of the case, could leave the
    impression that it was the Crowns position that given her emotional and
    mental state on the night in question, the complainant would not have
    consented to sex with anyone. This was combined with a reference to the sanitized
    version of the encounter between the complainant and M.W. in the stairwell:

[The complainant] described for you
    her emotional and mental state on the evening in question. She told you how she
    tried to fight off Jamie but was unsuccessful. She was a very young girl in an
    extremely vulnerable state. She was not seeking comfort. She was seeking only
    to be left alone so she could sober up. Jamie was nine years older than her. He
    saw her weakened condition and he decided to use it to his own advantage. [M.W.]
    himself confirms that when [the complainant] left that bedroom and went out in
    the stairwell, she was angry - at Jamie.

[17]

Defence counsel did not object to Crown counsels jury address and did
    not suggest that she had violated the trial judges order. Neither counsel
    raised any objections to the jury charge.

Analysis

[18]

We agree with the trial judge`s finding that, as per s. 276(1) of the
Criminal
    Code,
the excluded evidence, standing on its own, was not admissible to
    prove that because the complainant had consented to sex on another occasion she
    was more likely to have consented to sex with the appellant.

[19]

It may be that all Crown counsel meant to suggest through her
    cross-examination and jury address was that given the complainants emotional
    and mental state and her only passing acquaintance with the appellant, she
    would not have consented to sex with the appellant on the occasion in question.
    However, the cross-examination must be viewed in conjunction with Crown
    counsels jury address.

[20]

Even though Crown counsel did not violate the trial judges order, the
    effect of the cross-examination and the jury address was to suggest that one
    reason the complainant would not have consented to sex with the appellant was
    because she still had a relationship with her boyfriend, I.O. Another effect
    was to suggest that the complainant would not have had sexual relations with anyone
    at all because of her emotional and mental state at the time. However, a brief
    time after she was allegedly sexually assaulted by the appellant and at a time
    when she was still said to have been in an emotional condition, the complainant
    had consensual sexual relations with M.W.

[21]

Having excluded M.W.s evidence about what really happened in the
    stairwell from the evidentiary record, the Crowns cross-examination of M.W.
    and closing statement had the net effect, even if unintended, of presenting the
    jury with a misleading picture of crucial aspects of the incident that gave
    rise to this charge. The jury was left with the Crowns distorted narrative
    that the complainant was too upset to have consensual sex at a time relevant to
    the charge and that she would not have consensual sex with the appellant
    because she remained loyal to her boyfriend.

[22]

The problem that arose is not unlike what occurred in
R. v. Clarke
(1981), 63 C.C.C. (2d) 224 (Alta. C.A.). In that case, the accuseds statement
    to the police had been excluded as being involuntary. In that statement, the
    accused had told police that he had a blackout the day of the killing. There
    was other evidence that many months later the accused had said the same thing
    to a jailhouse informant. In his closing, Crown counsel had suggested the
    accused all of a sudden spoke about the blackout and that it was the first
    time that we have heard about this. While the facts are more egregious in
Clarke
than in this case, the principle stated at pp. 238-39 is applicable here:

To leave the jury with the impression that blackout
    was a concoction that first arose two months after the killing and was
    therefore a circumstantial contribution to the proof of guilt cannot stand.
I
    recognize counsel's obligation to comment on nothing but the admissible evidence
    during closing submissions. But this responsibility should not be inverted to
    encourage jurors to make findings in conflict with undisputed facts which did
    not reach their attention simply because of trial safeguards.
It is not
    possible to say what role a finding of concoction may have played in the jury's
    deliberations. [Emphasis added.]

[23]

Similarly, it cannot be said what role Crown counsels suggestions about
    the effect of the complainants emotional condition played in the jurys
    deliberations. What can be said, however, is that the complainants emotional
    condition formed a central plank in the Crowns theory that the complainant
    would not have consented to have sex with the appellant. If the jury accepted
    that argument because they believed the complainants loyalty was to I.O. or
    because she was not capable of having consensual sex when in an emotional or
    upset condition, the jury would have reached its verdict on a distorted view of
    the facts.

[24]

In our view, the excluded evidence became relevant to the Crowns
    particular theory of the case. Had the Crown not advanced a theory that was
    inconsistent with the excluded evidence, there would have been no problem.
    However, given the manner in which the Crown chose to present its case, the
    excluded evidence acquired significant probative value to the defence on the
    inferences to be drawn from her upset state and loyalty to her boyfriend. That
    probative value was not substantially outweighed by any danger of prejudice to
    the proper administration of justice. In our respectful view, the trial judge
    erred by permitting this distortion to occur and at the end of the day, the
    appellant was denied a fair trial.

[25]

For that reason we conclude that that the accused was denied his right
    to a fair trial.

2. Did the
    trial judge erred by leaving incapacity to consent with the jury?

[26]

Given our conclusion on the first issue, strictly speaking it is not
    necessary for me to consider this issue. In any event, we am satisfied that
    there was no error. Defence counsel raised the issue in his jury address and
    told the jury that the trial judge would be defining consent and that there can
    be no consent if the person is so drunk you dont know what youre doing. The
    trial judges instructions to the jury on consent were correct. He later made
    it clear that it was the Crown theory that the complainant did not in fact
    consent; there was no suggestion that the Crown relied on incapacity as a
    result of intoxication. There was no objection to the charge and no submission
    from defence counsel in the pre-charge discussion that the trial judge should
    not deal with the issue. In our view, the defence was not prejudiced by the
    trial judges correct definition of consent.

Disposition

[27]

Accordingly, we would allow the appeal, set aside the conviction and order
    a new trial. It goes without saying that the admissibility of the evidence of
    the complainants subsequent sexual conduct will have to be assessed afresh at
    the new trial in the light of the evidence and positions taken by the parties.

M. Rosenberg J.A.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

RELEASED: January 13,
    2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Chaing, 2012 ONCA
    59

DATE: 20120130

DOCKET: C53410

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Chhay Chaing

Appellant

David Anber, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: January 27, 2012

On appeal from the conviction entered on January 12, 2011
    and the sentence imposed on March 8, 2011 by Justice Roy of the Superior Court
    of Justice.

ENDORSEMENT

[1]

The appellant was convicted of possession of marijuana for the
    purposes of trafficking by Roy J. of the Superior Court of Justice on January
    12, 2011.  He was sentenced to three months incarceration and 12 months
    probation on March 8, 2011.

[2]

On the conviction appeal, the appellant raises five grounds of
    appeal.

[3]

The first ground of appeal is that the trial judge erred in
    relying on the appellants testimony on the pre-trial
Charter
application on the issue of guilt at trial.  The respondent Crown concedes that
    the trial judge did err in this respect.

[4]

It is clear from the record that the appellant testified on the
Charter
    voir dire
only, and not at the trial proper.  This is reflected in the
    following exchange between the trial judge and defence counsel:

THE COURT: ...you dont plan to call any evidence on the
    substantive charge?

MR. ANBER: Thats correct, Your Honour.

[5]

Unfortunately, the trial judge appears to have forgotten this
    when he turned to his brief oral decision.  He said:

THE COURT: ...I can only say on the issue of possession,
    frankly the evidence is there.  The evidence is overwhelming, and I have no
    difficulty whatsoever in being satisfied beyond a reasonable doubt on all the
    evidence
including his own clients own evidence
, that Mr. Chaing had
    possession, in other words that he had knowledge, and that he had control over
    the drugs that were found in the trunk.  [Emphasis added.]

[6]

The only dispute between the parties concerns the disposition of
    the appeal.  The appellant contends that since there is no evidence to
    establish a link between the drugs sent to Health Canada for analysis and the
    drugs to which Health Canadas certificate applies,
i.e.
his second
    ground of appeal, the result should be an acquittal.

[7]

We disagree.  The information on Health Canadas certificate
    identifying the police officer, police detachment and referral date, coupled
    with the officers testimony at trial, establish a sufficient link between the
    drugs sent and the drugs analyzed.

[8]

The appeal is allowed, the conviction is set aside, and a new
    trial is ordered.

Dennis OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (ad hoc)


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.
    539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These
    sections of the
Criminal Code
provide:

539          (1)
Prior to the
    commencement of the taking of evidence at a preliminary inquiry, the justice
    holding the inquiry

(a)       may, if application therefor is made by the
    prosecutor, and

(b)       shall, if application therefor is
    made by any of the accused, make an order directing that the evidence taken at
    the inquiry shall not be published in any document or broadcast or transmitted
    in any way before such time as, in respect of each of the accused,

(c)       he or she is discharged; or

(d)       if he or she is ordered to stand
    trial, the trial is ended.

(2)
Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)
Everyone who fails to
    comply with an order made pursuant to subsection (1) is guilty of an offence
    punishable on summary conviction

(4)
[Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539; R.S.,
    1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

CITATION:
R. v. Gray, 2012 ONCA 7

DATE: 20120105

DOCKET: C54575

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Gray

Appellant

Victoria Rivers, for the appellant

Shawn Porter, for the respondent

Heard & released orally:
December 22,
          2011

On appeal from the order of Justice Michael J. Quigley of the
          Superior Court of Justice dated October 21, 2011.

ENDORSEMENT

[1]

The appellant argues that the application judge erred by granting
certiorari
to quash a committal for trial for manslaughter and committing him for second
    degree murder.

[2]

There are two issues:

1.   Did the
    application judge err by concluding that the preliminary inquiry judge fell
    into jurisdictional error when he failed to commit the appellant for trial on
    the charge of second degree murder?

2.   Did the
    application judge err by committing the appellant for trial on second degree
    murder rather than remitting the matter to the preliminary inquiry judge?

1. Jurisdictional error

[3]

After reviewing the evidence and the preliminary inquiry judges
    reasons, the application judge concluded as follows at para. 30:

I find that Justice Hunter did commit
    jurisdictional error by favouring inferences to the benefit of the respondent
    without regard to inferences which might well be favourable to the Crowns
    position.  I further find that Justice Hunter did not look at the totality of
    the evidence notwithstanding the fact that his reasons indicated that he had
    done so.

[4]

In our view, the application judge applied the correct test.  It is well
    established that a preliminary inquiry judge falls into jurisdictional error
    where he or she prefers an inference favourable to the accused over an
    inference favourable to the Crown or by failing to consider the whole of the
    evidence: see e.g.
R. v. Sazant
(2004), 208 C.C.C. (3d) 224 (S.C.C.).

[5]

It is also our view that it was clearly open to the application judge to
    conclude that the preliminary inquiry judge had committed both types of error.
    On our reading of the preliminary inquiry judges reasons, the exercise he
    engaged in was much more akin to weighing the evidence and trying the case than
    to assessing the sufficiency of the evidence for trial.  That, in our view,
    amounts to jurisdictional error.

[6]

[This paragraph has been edited for publication pending the conclusion of the trial, pursuant to the non publication order of  the court.]

[7]

[This paragraph has been edited for publication pending the conclusion of the trial, pursuant to the non publication order of  the court.]

[8]

[This paragraph has been edited for publication pending the conclusion of the trial, pursuant to the non publication order of  the court.]

2. Committing for trial on second degree
    murder

[9]

The respondent concedes that the application judge erred by committing
    the appellant for trial on second degree murder: see
R. v. Thomson
(2005), 74 O.R. (3d) 721 (C.A.).

[10]

While the Crown does not appear to have asked the application judge in
    either or written submissions to issue an order of
mandamus
, it is clear
    from the notice of application and from the reasons of the application judge
    that there was an application for
mandamus
in aid of
certiorari.

[11]

In our view, in these circumstances, the appropriate order is to allow
    the appeal in part and issue a
mandamus
order remitting the matter to
    the preliminary inquiry judge requiring him to commit the appellant for trial
    on the charge of second degree murder.

Robert J. Sharpe J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


CITATION:
R. v. Jeffers, 2012 ONCA 1

DATE: 20120104

DOCKET: C49760

COURT OF APPEAL FOR ONTARIO

Laskin, Gillese and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Livingston Jeffers

Appellant

James Lockyer, for the appellant

John Patton, for the respondent

Heard: June 9, 2011

On appeal from the conviction entered on October 14, 2008 by
          Justice Gail S. Dobney of the Ontario Court of Justice.

Laskin J.A.:

A.

OVERVIEW

[1]

The appellant, Livingston Jeffers, appeals his convictions for counselling
    murder and mischief under $5,000.

[2]

Mr. Jeffers is a black man from the Caribbean.  In 2007, he and his
    family faced a number of difficulties in their lives, largely centered on their
    inability to maintain mortgage payments on their condominium.  Using poor
    judgment, but hoping to get someones attention for his familys plight, Mr.
    Jeffers glued numerous posters to road signs, hydro poles and parking meters in
    the neighbourhood of the Scarborough Town Center.  Some of the posters claimed
    that
the Jeffers Family fear for their life
 and contained the words
we
    have been fraud by York Condocork 98 and representitive David Jepb and TD Bank
    Debora Fredricks
.

[3]

Another poster  the poster that precipitated the charges against Mr.
    Jeffers  showed a photograph of city councillor Michael Thompson, also a black
    man, and contained the following hand-printed words:

Murder                                               Help

Councillor
    Thompson
Jeffers

Help Black
647-436-4476

We Black

[4]

A city of Toronto employee complained about the posters.  Mr. Jeffers
    was then charged with counselling members of the public to murder Councillor
    Thompson and with mischief under $5,000.
[1]
At his trial, Mr. Jeffers testified that the posters were a cry for help and
    that he never intended to harm Councillor Thompson.  He said that in the past Councillor
    Thompson had been the one person who had helped him.  The trial judge,
    nonetheless, rejected Mr. Jeffers evidence and convicted him of both charges.
    She imposed a suspended sentence and three years probation.

[5]

On appeal, the Crown concedes that the conviction for mischief cannot
    stand because the posters did not cause damage or endanger public safety.  However,
    the Crown seeks to maintain the conviction for counselling murder.

[6]

I would allow Mr. Jeffers appeal, set aside both convictions, and
    substitute acquittals.  In my opinion, the conviction for counselling murder is
    unreasonable.  It is not supported by the evidence and, indeed, is contrary to
    the evidence.  The trial judges reasons for conviction are undermined by her
    failure to consider the offending poster and Mr. Jeffers intention in
    context.  More broadly, I agree with counsel for Mr. Jeffers that our society
    can accommodate the kind of nuisance caused by the appellant; to convict him of
    one of the most serious crimes in our criminal law is on its face
    unreasonable.

B.

OTHER RELEVANT FACTS

1)

Mr. Jeffers Background

[7]

Mr. Jeffers was born in Montserrat.  He came to Canada in 1974.  He is
    married with four children.  At the time of trial he was 58 years old.

[8]

Mr. Jeffers has a grade five education.  He testified that he is not
    too great at reading and writing.  He had been a heavyweight boxer and became
    the Ontario Champion for Canada in bodybuilding.  Up to the time of trial, he
    had been working in the scrap metal business.

[9]

Mr. Jeffers and his wife bought a condominium townhouse in 1986.  Their
    difficulties began in 1996, when Mr. Jeffers wife, who was employed as a
    chambermaid at a hotel, suffered a workplace injury.  By 2005 the Jeffers could
    no longer maintain mortgage payments on their townhouse and the mortgage, which
    was held by the Toronto Dominion Bank, went into default.  His condominium corporation
    wanted him to move.  Mr. Jeffers tried to get help from the fraud squad, police
    station, community centres, the Jamaican Centre and City Hall.  He believed
    that his problems originated with the bank because its automated system
    failed.  He claimed they are stealing our property.  He blamed the local
    branch manager, Debra Frederick.

2)

The Posters

[10]

Mr. Jeffers glued about 50 posters to road signs, hydro poles and
    parking meters.  None of the posters interfered with the operation of the
    signs, poles or meters.  Moreover, the posters were easily traced to Mr.
    Jeffers because his name and telephone number were written on all of them, and
    his address on some of them.

[11]

The posters were of two types.  The first type, of which there were two
    variations, showed a photograph of Mr. Jeffers when he was a much younger man.
    Superimposed on his chest and stomach were pictures of the heads of his wife
    and two of his grandchildren.  These posters claimed that Mr. Jeffers and his
    family had been the victims of house fraud, and targeted their condominium corporation
    and the Toronto-Dominion Bank.  I attach as Appendices 1 and 2 to my reasons
    copies of the two posters of this first type.

[12]

The second type of poster is the one with a photograph of Councillor
    Thompson and the word murder on it.  I attach as Appendix 3 a copy of this
    poster.

[13]

Mr. Jeffers, whose speech was at times colourful, testified that he used
    the word murder because in his vernacular it meant a cry for help; he and his
    family were being murdered.

A.

Okay.  I like what I say, I say, murder, now murder is me that.  Me
    crying for murder.  When we in the Caribbean and anything - - anything would
    happen to anybody that is wrong, that is the only way you could - - if somebody
    is beating somebody badly.

Q.

Yes.

A.

Somebody yell
    murder, murder.

Q.

Okay.

A.

That is what we - - that is the phrase we use.  So what I am really saying,
    is very simple, murder, help Jeffers, that is what I am saying.

[14]

He said that he was asking Councillor Thompson, a fellow black man, to
    help him.  He never intended to harm the councillor in any way.

3)

Mr. Jeffers Interaction With Councillor Thompson

[15]

Mr. Jeffers met Councillor Thompson in 2006.  Councillor Thompson was
    then Mr. Jeffers local city councillor and helped him with a sewage problem.

[16]

Mr. Jeffers said that he never had a problem with Councillor Thompson.
    He was asked why he did not phone the councillor directly about his problems
    with his condominium corporation and the bank.  Mr. Jeffers explained:

He done his best.  He do what he could done and I
    didnt want to keep bothering him up.  He do his part, I said him get we back
    in our home and we thank him very much for that.

[17]

Councillor Thompson did not testify at trial.  And the Crown called no
    evidence to suggest that Mr. Jeffers held a grudge against him or to contradict
    Mr. Jeffers evidence that he viewed Counicllor Thompson as a good person.

C.        THE CONVICTION FOR MISCHIEF

[18]

The Crown proceeded under s. 430(a) of the
Criminal
    Code
.
[2]
It alleged that Mr. Jeffers committed mischief by willfully damaging property.
    In convicting him, the trial judge held:

In my view, damaged property can
    include things like defacing, putting graffiti on, sticking posters up, things
    that interfere with the manner in which the owner of the property had had his
    property originally set out.

The fact that it can be remedied
    subsequently by someone coming along and taking the glue off and scraping the
    posters or tearing them down, doesnt change the fact that for the time being
    damage was done by gluing things to a parking machine and I find the accused
    guilty of that offence.

[19]

The trial judge erred in her appreciation of the
    meaning of damage under the mischief provisions of the
Code
.  To
    criminalize mischief, the damage must be more than negligible, more than a
    minor inconvenience.  To prove damage the Crown must show that the usefulness
    or value of the property has been impaired, at least temporarily.  Proulx J.A. set
    out the test in
R. v. Quickfall
(1993), 78 C.C.C. (3d) 563, at p. 566
    (Q.C.A.):

Without disagreeing with this
    definition of the word damage according to which the thing is rendered less
    suited for its intended purpose, I would add, on the basis of my reading of
    the dictionaries, that damages means that at least temporarily,
the
    usefulness or the value of the property is impaired, whether or not the
    property was harmed or ruined
.  In this sense and, with respect for the
    contrary opinion, I do not believe that the least bit of damage is sufficient
    to constitute mischief. [Emphasis in original.] [Footnotes omitted.]

[20]

In the present case, none of Mr. Jeffers
    posters interfered with the utility of the signs, poles or parking meters, or
    impaired their value.  All of the citys property remained functional.  At most,
    the glue affixed to the posters made them somewhat difficult to remove.  This
    minor difficulty does not amount to damage under s. 430(a) of the
Code
.

[21]

The test for damage amounting to criminal
    mischief reflects an appropriate balance between individual and societal
    rights.  Individuals have long used postering as an effective and inexpensive
    means of communicative expression  whether to give notice of a lost pet, an
    upcoming local concert, or a persons availability to do home repairs.
    Criminalizing this kind of conduct is not in societys interest.

[22]

On the other hand, local municipalities have a
    legitimate interest in ensuring that posters do not become a nuisance or impair
    the safe operation of their signs, poles and meters.  For this reason, the
    regulation of postering on public property  be it the size, appearance or
    location of the poster  is best left to local by-law legislation: see
Peterborough
    Corp. v. Ramsden
, [1993] 2 S.C.R. 1084.
[3]

[23]

The conviction for mischief must be set aside, and in its place an
    acquittal entered.

D.        THE CONVICTION FOR COUNSELLING MURDER

[24]

In
R. v. Hamilton
, 2005 SCC 47, [2005] 2 S.C.R. 432 , the Supreme
    Court of Canada set out the
actus reus
and
means

rea
for
    counselling the commission of an offence.  Fish J., writing for the majority, said
    at para. 29:

In short, the
actus reus
for counselling is
    the
deliberate encouragement or active inducement of the commission of a
    criminal offence.
And the
mens rea
consists in nothing less than an
    accompanying
intent
or
conscious disregard of the substantial and
    unjustified risk inherent in the counselling:
that is, it must be shown
    that the accused either intended that the offence counselled be committed, or
    knowingly counselled the commission of the offence while aware of the
    unjustified risk that the offence counselled was in fact likely to be committed
    as a result of the accuseds conduct. [Emphasis in original.]

Thus, to establish Mr. Jeffers guilt, the Crown had to prove
    that: (a) an ordinary reasonable person viewing the poster objectively would
    take it as an invitation to kill Councillor Thompson; and (b) Mr. Jeffers
    either intended or knowingly counselled Councillor Thompsons murder while
    aware of the unjustified risk that murder was likely to be committed.

[25]

I agree with the Crown that in her oral reasons for conviction, the
    trial judge correctly set out both the
actus

reus
and the
mens

rea
for counselling murder.  However, I do not agree that she correctly
    applied these elements of the offence.

[26]

The trial judge was required to approach her analysis of the poster from
    the perspective of the ordinary, reasonable person. In doing so, she was required
    to look beyond the words on the page to consider the context or circumstances
    in which the poster was made, including the manner in which the words were
    communicated and the relationship between the writer and the subject of the
    alleged invitation to kill: see
Hamilton,
at paras.  15 & 74;
R.
    v. Sharpe,
2001 SCC 2, [2001] 1 S.C.R. 45, at para. 56; and
R. v.
    Batista
, 2008 ONCA 804, 238 C.C.C. (3d), at paras. 19 & 20.

[27]

She was also required to inquire into Mr. Jeffers subjective state of
    mind. She had to take account of not only Mr. Jeffers direct evidence, but as
    well of the various pieces of circumstantial evidence that told of his
    intention.

[28]

Although the trial judge gave reasons that are seemingly thorough, her
    analysis failed to go beyond the poster itself. After analyzing the poster (at
    Appendix 3) the trial judge concluded that Mr. Jeffers testimony was not
    believable:

In my view, his explanation is utterly and entirely
    inconsistent with what is on the face of this document.  Indeed it was meant to
    be read down, being murder Councillor Thompson to help black was or could
    be certainly read as being an incitement or a solicitation to others to murder
    Councillor Thompson, the reason why, to help Jeffers, both of those things set
    out there.  It is clear to me that Mr. Jeffers holds a significant group of
    grievances against a number of people.  He has problems with his condominium
    association.  He has problems with his bank.  He has problems with various
    other people who were named on this.  I find it implausible, his explanation
    that Councillor Thompson, who had previously helped him by a simple phone,
    would be incited to assist him or asked to assist him by putting up a poster
    around the city, which there was no guarantee would ever come to Councillor
    Thompsons intention of asking help by saying, murder Councillor Thompson.  I
    do not accept that.  I reject his evidence on that completely.

[29]

She also concluded that the words on the poster:

are deliberately written in that way to act as a
    deliberate encouragement or act of inducement to the commission of a criminal
    offence.  It may have been put there as a threat to Councillor Thompson to get
    his assistance but it also has the dual purpose of attempting to solicit
    someone to commit the offence.

[30]

In my opinion, these conclusions are not supportable.  Mr. Jeffers had
    neither the
actus reus
nor the
mens rea
for counselling murder,
    and to conclude that he did is unreasonable.  No reasonable person viewing the
    words on the poster could think that they were encouraging someone to murder Councillor
    Thompson.  On their face, they were a cry for a fellow black man to help the
    Jeffers family, not an exhortation to kill.

[31]

The trial judges analysis did not take account of the context of the
    alleged offence, including the collective message of the posters, the
    appearance of the words, the lack of motive, the steps Mr. Jeffers took to
    ensure that he could be identified, and Mr. Jeffers personal background.

(i)
The collective message of the posters

[32]

The poster in question cannot be considered in
    isolation.  It has to be looked at in the context of the other posters. The
    other two posters share a common theme, a complaint of house fraud. They
    mention the TD Bank and the condominium corporation, but do not refer to Councillor
    Thompson. Obviously, Mr. Jeffers grievances are not with Councillor Thompson,
    but with his condominium corporation and the bank.

(ii)
The appearance of the words on the poster

[33]

Mr. Jeffers explained his use of the word
    murder as meaning a cry for help.  That intention seems obvious from the
    juxtaposition of murder with help Jeffers and the phone number. These items
    are related. Indeed the relative thinness of the pen strokes of these words, as
    compared to the words help black, we black and
Councillor
Thompson supports this interpretation and suggests that they were
    written in sequence.  In contrast, the words help black and we black are
    related to
Councillor
Thompson.

(iii)
Absence of motive

[34]

The trial judge held that Mr. Jeffers motive
    was irrelevant.  She said:

And what may have been in his mind
    and why he thought this was going to help, in my view is more of a question of
    motive and it is not something that I have solve here.

[35]

However, as evidence motive is always relevant
    to the issue of intention and this case is no different: see
Lewis v. The
    Queen,
[1979] 2 S.C.R. 821.  The existence of a motive makes it more likely
    that a person committed the crime.  Persons do not usually act without a
    motive.  Mr. Jeffers had no motive to want
Councillor Thompson murdered.
    The councillor had helped him in the past and had never done him any harm.  Mr.
    Jeffers lack of motive to want Councillor Thompson killed is a strong piece of
    circumstantial evidence that he never intended to encourage his murder.

(iv)
Mr. Jeffers was easily identified

[36]

The trial judge did not take into account that
    Mr. Jeffers made sure he could easily be identified and found.  His name and
    telephone number were displayed on the offending poster.
[4]
When the police
    arrived at his home, he was open and co-operative with them, and, indeed,
    delighted to see them.  Even during his testimony, both in chief and under
    cross-examination, Mr. Jeffers was more than candid about his postering
    campaign, advising that he had about ten thousand flyers printed, including
    others that did not make it to the posting stage. This is not the normal
    conduct of a person who intends to counsel the murder of another human being.
    Instead, this conduct is another piece of circumstantial evidence supporting the
    appellants lack of intent.

(v)
Mr. Jeffers personal background

[37]

Mr. Jeffers personal background was also highly
    relevant to the question of his intent. Mr. Jeffers limited level of literacy,
    his rudimentary English, his grade five education and his Caribbean background
    all should have been considerations in evaluating his intent, and more
    specifically his credibility: see
Batista
. Rather than rejecting the
    appellants explanation of what he intended to convey through the offending
    poster as being implausible, the trial judge ought to have evaluated his
    evidence with these subjective characteristics in mind. Had she done so, it
    would have been clear that Mr. Jeffers had no intention of encouraging
    Councillor Thompsons murder.

[38]

For these reasons I would set aside the
    conviction for counseling murder.  It is not supported by the evidence, and in
    my opinion, it is contrary to the evidence.

[39]

The Crown submits, in the alternative, that we
    ought to substitute a conviction for threatening death.  Accepting that we have
    the jurisdiction to do so, I would not give effect to the Crowns submission.
    Mr. Jeffers no more intended to threaten
Councillor Thompsons death
    than he intended to counsel his murder.

E.        CONCLUSION

[40]

I would allow Mr. Jeffers appeal, set aside his
    convictions for mischief and
counselling
murder, and in
    their place enter an acquittal on each charge.

John Laskin J.A.

I agree E.E. Gillese
    J.A.

I agree Karakatsanis
    J.A.

RELEASED:  January 4, 2012

Appendix 1

Appendix 2

Appendix 3

[1]

The indictment did not specify how the mischief
    was committed; however, the parties and the trial judge proceeded on the
    assumption that the mischief count alleged destruction or damage of property:
    see s. 430(1)(a).

[2]

Supra
note 1.

[3]
My reasons apply to the affixing of posters on public property.  Postering on
    private property is not before us and may call for a different assessment.

[4]

The other two
    posters also contained his home address.


CITATION:
R. v. Kopas, 2012 ONCA 16

DATE: 20120110

DOCKET: C50622

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randall Kopas

Appellant

Daniel Brodsky, for the appellant

Andreea Baiasu, for the respondent

Heard:
January 9, 2012

On appeal from the sentence imposed by Justice Sutherland of
          the Ontario Court of Justice, on August 14, 2006.

APPEAL BOOK ENDORSEMENT

[1]

We reject the appellants submission that the respondent must show
    evidence of untreatability to sustain a dangerous offender order.

[2]

Here the trial judge correctly asked himself whether there was a
    reasonable possibility of eventual control in the community of the risk posed
    by the appellant.  There was ample evidence, all of which was carefully
    considered by the trial judge, to support his conclusion that the evidence fell
    far short of providing any such reasonable possibility.

[3]

The appeal is dismissed.


CITATION: R. v. Malaj, 2012
          ONCA 21

DATE: 20120111

DOCKET: C51180

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Edi Malaj

Appellant

P. Andras Schreck and Lucy Sanders, for the appellant

Scott Latimer, for the respondent

Heard:
January 10, 2012

On appeal from the conviction entered on May 19, 2009 by
          Justice P.A. Daley of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant does not contest the trial judges finding of fact.  The
    trial judge reviews them in detail in para. 37 of his reasons, to which we
    would only add the fact that the male seen at the parking lot matched the
    description of the male who pointed the handgun.  The trial judge took all
    these circumstances into account.  We find no error in his conclusion that they
    constitute reasonable and probable grounds for arrest.  Because of this the
    stop and the search were lawful.

[2]

The arguments concerning ss. 10(a) and (b) of the Charter were not pressed
    before us and we find no merit in them.  In the circumstances it is unnecessary
    for us to deal with s. 24(2).

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McDonald, 2012
    ONCA 40

DATE: 20120123

DOCKET: C54335

Goudge, Epstein JJ.A., and Newbould J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Keaton McDonald

Appellant

Keaton McDonald, appearing in person

Louis P. Strezos, acting as duty counsel

Catherine Mullaly, for the respondent

Heard: January 16, 2012

On appeal from the conviction entered on August 19, 2011
    by Justice Russell J. Otter of the Ontario Court of Justice.

ENDORSEMENT

[1]

At the appellants request, duty counsel argued his appeal from
    conviction.  Mr. Strezos central argument concerned the identification
    evidence that was the basis for the appellants conviction.

[2]

The case turned entirely on the identification of the appellant
    by the victim, to whom he was a stranger.  The victim, a white male, was robbed
    by two black men, one of whom brandished a firearm.  The encounter was over in
    a matter of a few minutes.  Subsequently, the victim picked the appellant out
    of a photo line-up.

[3]

The trial judge instructed himself about the great caution with
    which visual identification generally must be viewed, especially with
    strangers.  However, he did not caution himself expressly about the danger
    presented by three specific circumstances pointed out by Mr. Strezos: that the
    identification was interracial; that the encounter was admittedly one of real
    stress for the victim; and that during the encounter the victim was facing what
    appeared to be a firearm.  Nor did the trial judge explain in his reasons why,
    despite these difficulties, he accepted the identification made by the victim.
    Mr. Strezos says that this leaves the reasons for conviction fatally flawed.

[4]

Despite his able argument, we would not interfere with the
    conviction.

[5]

The trial judge was clearly aware that this was an identification
    that was interracial, and arose from a stressful confrontation where a gun was being
    pointed at the victim.  The risks presented by the interracial identification,
    the stress and the weapon would have been apparent to him.  He expressly
    cautioned himself on the generic risks of identification evidence.

[6]

As all trial judges are, this experienced trial judge is taken to
    know the law.  He was not required to expressly avert to the risks arising from
    the specific circumstances.  While he did not expressly offer reasons for
    rejecting their impact, he gave clear positive reasons for accepting the
    identification evidence: the victim had a clear and close-up look at the
    assailant; this persisted over the entire confrontation; and he was looking at
    the assailant the whole time.  The victim then took great care before
    identifying the appellant in the photo line-up.  In our view, on the current
    state of the law he was required to do no more.

[7]

The appeal must be dismissed.

S.T. Goudge J.A.

G.J. Epstein
    J.A.

Newbould J. (
ad hoc
)