CITATION:
R. v. Must, 2011
          ONCA 390

DATE: 20110519

DOCKET: C52319

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Robert Must

Appellant

Mark
Halfyard
, for the appellant

Peter
Scrutton
, for the respondent

Heard: May 17, 2011

On appeal from conviction entered by Justice John Macdonald of
          the Superior Court of Justice dated, December 18, 2009.

ENDORSEMENT

[1]

The appellant appeals his conviction for fraud by
    Macdonald J. on the basis that the trial judge erred in failing to find that
    the appellant had a colour of right defence to the charge.  For the following reasons, the appeal is
    dismissed.

[2]

The trial judge rejected the appellants primary
    position that his contract with
iGate
was still in effect
    and that he was entitled to continue to receive payments under the
    contract.  He also found that the
    appellant forged the signature of the client on the time sheets in order to
    obtain the payments, to which he was not legally entitled.  The trial judge did, however, accept that the
    appellant honestly believed that
iGate
was liable to
    him in damages for breach of contract because they did not terminate the
    contract by written notice in accordance with its terms.  We agree with the trial judge that this
    belief did not give the appellant a defence.

[3]

To succeed, the appellant must show that the facts as
    found by the trial judge negative the
mens

rea
for fraud.  Those facts do not negative the
mens

rea
; to the contrary they show that the appellant had
    the requisite
mens

rea
.
The
mens

rea
for fraud has been authoritatively
    determined in
R. v.
Théroux
,
    [1993] 2 S.C.R. 5 at
para
. 24:

Having ventured these general comments on
mens

rea
, I return
    to the offence of fraud. The prohibited act is deceit, falsehood, or some other
    dishonest act. The prohibited consequence is depriving another of what is or
    should be his, which may, as we have seen, consist in merely placing another's
    property at risk.
The
mens

rea
would then consist in the subjective awareness
    that one was undertaking a prohibited act (the deceit, falsehood or other
    dishonest act) which could cause deprivation in the sense of depriving another
    of property or putting that property at risk. If this is shown, the crime is
    complete. The fact that the accused may have hoped the deprivation would not
    take place, or may have felt there was nothing wrong with what he or she was
    doing, provides no defence
. To put it another way, following the
    traditional criminal law principle that the mental state necessary to the
    offence must be determined by reference to the external acts which constitute
    the
actus
of the offence (see Williams,
supra
, c. 3),
the proper focus in determining the
mens

rea
of fraud is to ask whether the accused intentionally
    committed the prohibited acts (deceit, falsehood, or other dishonest act)
    knowing or desiring the consequences proscribed by the offence (deprivation,
    including the risk of deprivation). The personal feeling of the accused about
    the morality or honesty of the act or its consequences is no more relevant to
    the analysis than is the
accused's
awareness that the
    particular acts undertaken constitute a criminal offence
.  [Emphasis added.]

[4]

On the findings of fact, the appellant was aware that
    he was undertaking a prohibited act, namely the deceit in forging the time
    sheets, which could cause a risk of deprivation in the sense of depriving
iGate
of its property.  The
accuseds
personal belief of entitlement
    to damages for breach of contract did not negative the
mens

rea
.  That belief falls within the statement in
Théroux
:  The personal feeling of the accused about
    the morality or honesty of the act or its consequences is no more relevant to
    the analysis than is the
accused's
awareness that the
    particular acts undertaken constitute a criminal offence.  The knowledge of risk of deprivation is found
    in the trial judges finding that the appellant, unilaterally determined that
    his entitlement would be full payment for the time from January 6
th
to March 23
rd
, 2006, without affording [
iGate
]
    from whom he sought payment the opportunity either to scrutinize the amount he
    sought or the period of claimed entitlement, or to dispute his claims.

[5]

Accordingly, the appeal is dismissed.

Signed: M. Rosenberg J.A.

S.
    E. Lang J.A.

David
    Watt J.A.


CITATION:
R. v.
Petruzzo
, 2011 ONCA 386

DATE: 20110517

DOCKET: M38186

COURT OF APPEAL FOR ONTARIO

Laskin J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party

and

Giovanni
Petruzzo

Moving Party

Giovanni
Petruzzo
, acting in person

Gleb

Bazov
,
          as duty counsel

Amanda Ross, for the responding party

Heard:
May 11, 2011

On a motion for leave to appeal the
          decision of the Provincial Offences Appeal Court by Justice Eric N. Libman,
          dated October 13, 2009.

Laskin J.A.:

[1]

Mr.
Petruzzo
was convicted of
    disobeying a traffic sign contrary to s. 182(2) of the
Highway Traffic Act
, R.S.O. 1990 c. H-8.  He was driving south on Bay Street and turned
    right onto Richmond Street contrary to a sign that prohibited right-hand
    turns.  The appeal from his conviction
    was dismissed by Libman J. of the Provincial Offences Appeal Court.

[2]

Mr.
Petruzzo
now seeks to
    leave to appeal to this court under s. 139 of the
Provincial Offences Act
, R.S.O. 1990 c. P.-33.  To obtain leave he must show that it is
    essential in the public interest or for the due administration of justice that
    leave be granted.

[3]

Mr.
Petruzzo
raises two
    grounds of appeal: 1) he should have been charged under s. 144(9) of the
Highway Traffic Act
, which specifically
    prohibits turns at intersections; and 2) his conviction was invalid because the
    sign prohibiting a right-hand turn at Bay and Richmond was in English only,
    instead of in both English and French, contrary to the
French Language Services Act
, R.S.O. 1990 c. F-32.

[4]

Neither ground of appeal warrants granting leave.  Before dealing with each grounds
    specifically, I make two preliminary points.  First, neither ground was raised at trial.  Second, Mr.
Petruzzo
has not served a notice of constitutional question challenging the
    constitutionality of the
French Language
    Service Act
.

[5]

On the first proposed ground of appeal, the prosecutor
    was entitled to proceed under s. 182(2) of the
Highway Traffic Act
.  Section
    182(2) is a general provision requiring motorists to obey instructions or
    directions on a traffic sign.  I know of
    no authority or principle that required the prosecutor to seek an amendment to
    change the charging section to the more specific provision dealing with
    intersections.  Mr.
Petruzzo
was aware of and understood the allegation against him and, on the facts found
    by the trial judge, was properly convicted under s. 182(2).

[6]

On the second ground, Mr.
Petruzzo
contends that the
French Language
    Services Act
obliges the City of Toronto to have bilingual traffic
    signs.  He points to two sections of that
    Act, ss. 5 and 14, in support of his contention.  Neither section assists him.

[7]

Section 5 stipulates that a person has the right to
    receive available services in French from any head or central office of a
    government agency.  However, the definition
    of government agency in s. 1 expressly excludes municipalities.

[8]

The City of Toronto is designated in the Schedule to
    the Act as a bilingual area, and under s. 14 may pass a by-law providing that
    the administration of a municipality shall be conducted in both official
    languages and that all or specified municipal services shall be available in
    English and French.  However, the City of
    Toronto has not passed such a by-law.  Because it has not done so, s. 52 of Regulation 615 under the
Highway Traffic Act
applies and
    forecloses the need for bilingual traffic signs.  Section 52 states:

A municipality situated in an area designated by
    the
French Language Services Act
is
    not required to comply with the sign requirements for such areas unless it has
    passed a by-law under section 14 of that Act.

[9]

Nonetheless, Mr.
Petruzzo
finds support for his argument in the decision of Justice of the Peace Napier
    in
R. v. Myers
,

2004
CarswellOnt
5638 (C.J.).  In that case, the Justice of the Peace held
    that unilingual traffic signs in the City of Toronto were not valid.  In his view, because the City is a designated
    bilingual area under the
French Language
    Services Act
, traffic signs under the
Highway
    Traffic Act
must be in both English and French.

[10]

Respectfully, I consider the decision in
Myers
to be wrong.  It does not satisfactorily explain why the
    City of Toronto is obliged to have bilingual signs when it has not passed a
    by-law under s. 14 of the Act.  Most
    important,
Myers
does not refer to s.
    52 of Regulation 615, which expressly states that absent a by-law under s. 14,
    bilingual signs are not required.

[11]

The motion for leave to appeal is dismissed.

John Laskin J.A.


CITATION: R. v. Roncaioli, 2011 ONCA 378

DATE: 20110513

DOCKET: C48861

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Roncaioli

Appellant

Sharon E. Lavine, for the appellant

M. David Lepofsky, for the respondent

Heard: November 29 and 30, 2010

On appeal from the conviction
          entered on February 16, 2008 and the sentence imposed on June 5, 2008, by
          Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A.

OVERVIEW

(i)        Factual Background

[1]

The appellant, Joseph Roncaioli, was an obstetrician and gynaecologist
    for over 35 years.  He was charged with and convicted of manslaughter in the
    death of his wife, Ibi Roncaioli, to whom he had been married for over 30
    years.  He was sentenced to seven years in jail.  He appeals both his
    conviction and sentence.

[2]

Ibi Roncaioli died in July 2003.  The appellant was charged with
    unlawfully causing her death in January 2004.  At the time, he was 67 years
    old.

[3]

The trial before a judge and jury began in the fall of 2006, but was
    discontinued because one of the Crowns expert witnesses was too ill to
    testify.  The defence was offered but turned down a new trial date in February
    2007.  Instead, the trial was rescheduled for October 2007, but again could not
    proceed because the assigned Crown had taken ill.  The trial began in January
    2008.  At the beginning of the trial, the defence brought a motion under s.
    11(b) of the
Charter
to stay the proceedings because of unreasonable
    delay.  The trial judge dismissed the motion.

[4]

At trial, a forensic pathologist testified that the cause of Ibi
    Roncaiolis death was multi-drug toxicity:  the aggregate effect of two local
    anaesthetics  lidocaine and bupivacaine  and alcohol.  The two factual issues
    for the jury were, first, identity: who injected Ibi with the toxic amount of
    the anaesthetics found in her body? And second, causation: was the combined
    effect of the two anaesthetics a significant contributing cause of death?

[5]

On the issue of identity, the appellant testified that on the day of her
    death, he had injected his wife with the two anaesthetics.  He said that he was
    trying to draw blood to run tests on her because of her declining health and
    wanted to alleviate any pain she might otherwise suffer.  He maintains,
    however, that he injected her with only therapeutic amounts of the
    anaesthetics, not the toxic amounts found in her body.  He claims that she
    injected herself with what proved to be the fatal doses.  The Crown accepted
    that it had to prove beyond a reasonable doubt that the appellant injected enough
    of the two anaesthetics found in Ibi Roncaioli to produce her drug level at the
    time of her death and that she had not self-injected either drug.

[6]

On the issue of causation, there was expert evidence that the combined
    effect of lidocaine and bupivacaine at the levels found in Ibi Roncaiolis body
    were likely toxic.  There was also evidence that Ibi Roncaioli had consumed
    alcohol in the hours leading up to her death, and that alcohol exacerbated the
    effects of the two anaesthetics.  The Crown agreed that it had to prove beyond
    a reasonable doubt that these two anaesthetics in combination were a significant
    contributing cause of Ibi Roncaiolis death.

[7]

In seeking to prove the appellant had unlawfully caused his wifes
    death, the Crown put forward two alternative theories of manslaughter:  by
    criminal negligence and by an unlawful act.  The criminal negligence route to
    manslaughter rested on showing that the appellant injected his wife with lidocaine
    and bupivacaine, and in doing so showed a wanton and reckless disregard for her
    life or safety.  The unlawful act route rested on showing that the appellant
    intentionally injected Ibi Roncaioli with the two anaesthetics in quantities that
    endangered her life, thus constituting manslaughter by the unlawful act of
    aggravated assault.

[8]

In attempting to prove unlawful act manslaughter, the Crown relied on
    evidence of motive.  Indeed, though not required to prove an intent to kill,
    the Crown claimed that the appellant wanted his wife dead for two reasons:  she
    had spent virtually all of their retirement savings and their relationship had
    deteriorated to such an extent that they were living separate lives.

(ii)       Issues on Appeal

[9]

The appellant argues five grounds of appeal:

(1)

The trial judge erred by failing to stay the prosecution because of
    unreasonable delay.  The appellant argues that the trial judge erred by
    characterizing the period from January to September 2007 as defence delay and
    by finding that the delay caused only marginal prejudice.

(2)

The trial judge confused the jury by leaving unlawful act manslaughter
    as an alternative theory of liability.

(3)

The trial judge erred by instructing the jury on motive because the
    appellant was not charged with murder, and further erred by giving a one-sided
    instruction on motive.

(4)

The trial judge confused the jury with her instructions on causation.

(5)

The trial judge erred by failing to sentence the appellant for
    manslaughter based on criminal negligence and by failing to give enough weight
    to the mitigating considerations favouring a lenient sentence.

B.

RELEVANT BACKGROUND

(a)       The events the day
    Ibi Roncaioli died, July 20, 2003

[10]

The appellant testified that in the weeks before his wifes death, he
    had become convinced that her health was deteriorating.  In the morning of July
    20, 2003, he decided to take her blood for testing.  She agreed but asked him
    not to hurt her.  Ibi Roncaioli had collapsed veins, making it hard to draw
    blood.  Therefore, the appellant took some lidocaine and bupivacaine, which he
    had brought home from the hospital three days earlier for his hip, to give his
    wife a local freeze so she would not feel the needle when he tried to draw
    blood.  He injected a small amount of lidocaine in her right arm. He testified
    that he could not find a vein to draw blood, so he stopped.

[11]

Later, at about 10:00 in the morning, Ibi Roncaiolis accountant, George
    Hegyi, and her real estate agent, Priscilla Wong, met the Roncaiolis to help
    them in buying a new bungalow, valued at about half of the price of their
    existing home.  The appellant said the move to a smaller house was partly
    financial and partly a lifestyle choice.  He testified that at first Ibi was
    reluctant to move, but eventually agreed.

[12]

After signing an offer to purchase at 1:00 p.m., the four went to lunch
    at the Red Lobster.  Ibi Roncaioli ordered a cognac and began to act
    strangely.  She was screaming, dropping her pizza and shaking.  She loudly told
    the appellant she loved him and asked whether he loved her.  Her face was white
    and she looked tired.  Mr. Hegyi drove the Roncaiolis back to their home and
    left about 3:00 p.m.

[13]

For many years, the Roncaiolis had slept in separate bedrooms and after Mr.
    Hegyi drove them home that afternoon, Ibi Roncaioli went to her own bedroom.
    The appellant went to the library.  He said, however, that her behaviour at
    lunch convinced him that she needed help.  He returned to her bedroom to try
    once more to draw blood.  Again she agreed if he would not hurt her.  He
    injected the two anaesthetics in her right arm but could not draw blood from
    that arm.  He tried the other arm but again was unsuccessful.  He left a
    syringe and vials on the bedside table, turned on the television, and went back
    to the library.

[14]

At 6:00 p.m. the appellant checked on his wife.  He said that she was
    sleeping soundly. He noticed the syringe on the floor.  He picked it up and put
    it along with the vials of anaesthetics and containers in the garbage.  The
    appellant went to Ibis bedroom again at 8:00 p.m.  He said that her mouth was
    open and her tongue was hanging out.  He felt for a pulse but could not find
    one.  She felt cold.  In his medical opinion, she was clinically dead.

[15]

The appellant drove over to his sons home.  He told his son and
    daughter-in-law that he could not wake Ibi and said, I think shes dead.  The
    appellant then returned home with his son.  They called Mr. Hegyi at 9:00 p.m.
    and told him that Ibi was dead.  Mr. Hegyi picked up Ms. Wong and they both
    came over before 10:00 p.m.  At that point Mr. Hegyi called 9-1-1.  The
    paramedics and police arrived quickly.  At 10:34 p.m. Ibi Roncaioli was
    pronounced dead.  Later, one of the police officers found alcohol and three
    empty vodka bottles in the kitchen.

(b)       The appellants evidence on the
    amounts of anaesthetics he injected

[16]

The appellant was first interviewed by the police the day after his wife
    died.  He made no mention of injecting her with anaesthetics.

[17]

On January 21, 2004, six months after his wife died, the appellant was
    interviewed at the police station.  By then, although unknown to the appellant,
    the police had a coroners report attributing Ibi Roncaiolis death to
    multi-drug toxicity.  During this interview, the appellant at first denied
    injecting Ibi with anaesthetics the day she died.  Eventually, however, he
    acknowledged that he had done so.  He admitted that during the day he may have
    injected her with as much as 19 cubic centimetres (cc) of lidocaine and
    bupivacaine combined  as much as 6 to 7 cc in the morning and 10 to 12 cc in
    the afternoon.

[18]

At trial, however, the appellant testified that he had injected only 6
    to 7 cc during the course of the day.  He suggested that his wife had injected
    herself with the rest of the drugs found in her body.

(c)       Expert evidence on
    the cause of Ibi Roncaiolis death

[19]

The jury heard evidence about the cause of Ibi Roncaiolis death from
    four experts.  The Crown called Dr. Karen Woodall, a forensic toxicologist at
    the Centre for Forensic Sciences, Dr. Susan Belo, an anaesthesiologist and Dr.
    John Doucet, a forensic pathologist.  The defence called Dr. Joel Mayer, a
    forensic toxicologist at the Centre of Forensic Sciences and an expert on
    pharmacology.

[20]

Blood and skin samples showed lidocaine, bupivacaine and alcohol in Ibi
    Roncaiolis body.  These toxicological findings served as the basis of the
    expert evidence.

[21]

Drs. Woodall, Belo and Doucet gave opinion evidence that the combined
    amount of lidocaine and bupivacaine in Ibi Roncaiolis body was in the toxic
    range, potentially fatal and could have caused her death, even absent alcohol.
    Dr. Woodall said that she would expect the combination to be toxic.  Dr. Belo
    said the combination was likely toxic.

[22]

Dr. Doucet, the pathologist, conducted a post-mortem on Ibi Roncaioli.
    He concluded that both drugs in aggregate  lidocaine and bupivacaine  had
    produced significant adverse affects.  In his opinion, Ibi Roncaioli had died
    from multi-drug toxicity from the two anaesthetics and the alcohol.  However,
    he also said that while alcohol was a contributing factor, lidocaine and
    bupivacaine alone could have caused Ibi Roncaiolis death.

[23]

Dr. Mayer testified that he could not reach the unequivocal conclusion
    that lidocaine and bupivacaine alone had caused Ibi Roncaiolis death.  Alcohol
    could not be discounted; it would have exacerbated the toxicity of the two
    anaesthetics.

[24]

Finally, I note the appellants argument that the trial judge misstated
    some of the expert evidence in her review of the evidence for the jury.  I am
    satisfied, however, that she did not materially misstate the expert evidence.  Moreover,
    defence counsel, who had a draft of the charge in advance of it being given,
    did not object to the accuracy of the judges factual review.

C.

ANALYSIS

First Issue:  Did the trial judge err by failing
    to stay the prosecution for unreasonable delay?

[25]

We did not call on the Crown to respond to this ground of appeal.

[26]

The delay between the appellants arrest in January 2004 and the start
    of the trial in January 2008 was 48 months.  The trial judge found that, of
    this period, 19.25 months were attributable to institutional delay, just
    slightly over the high end of the
Morin
guidelines and thus was
    acceptable.

[27]

The appellant contends that the trial judge erred in two respects:  by
    characterizing the period from January to September 2007 as defence delay
    instead of institutional delay, and by finding that the overall delay only
    marginally prejudiced him.  In our view, the trial judge did not err.

[28]

The trial was scheduled to begin in October 2006 but had to be
    discontinued because a main Crown expert, Dr. Woodall, was too ill to testify.
    The Crown offered to use the transcript of her preliminary inquiry evidence
    under s. 715 of the
Criminal Code
but the defence objected because it
    wanted to cross-examine her at trial.  The trial judge acceded to the defences
    position.

[29]

In mid-January 2007 counsel appeared in assignment court to reschedule
    the trial.  The trial was estimated to take six to eight weeks.  The court
    suggested starting the trial in February.  Defence counsel, however, asked for
    a September trial date because he was scheduled to start a murder trial for an
    in-custody accused on April 30.  He said that a February date would not give
    him a proper lag time between the two trials.  The trial judge agreed to put
    the matter over to September.  The court, however, could not accommodate a
    September date and the trial was rescheduled to start in October.  The trial
    judge characterized the delay from January to September as attributable to the defence.

[30]

In arguing that the period from January to September 2007 was
    institutional delay, the appellant relies on
R. v. Godin
, [2009] 2
    S.C.R. 3, at para. 2 where Cromwell J. said that scheduling requires
    reasonable availability and reasonable cooperation but does not require
    defence counsel to hold themselves in a state of perpetual availability.  It
    seems to me that defence counsel could reasonably have started this trial in February.
    On the estimates given, the trial would have finished by mid to late March,
    giving him at least a month to prepare for his murder trial.  Even if we take a
    more charitable view of the demands on defence counsel, I would characterize
    the period from January to September 2007, not as institutional delay, but as
    delay caused by the unexpected illness of the Crowns expert and thus as
    neutral delay or delay due to the inherent time requirements of the case: see
    for example
R. v. A.J.W
(2009), 257 O.A.C. 11 (C.A.), at para. 47.

[31]

The trial judges finding that the appellant was only marginally
    prejudiced by the delay was reasonable.  The appellant did not testify on the
    s. 11(b) motion.  His bail conditions were not onerous. Moreover, although the
    appellants doctor testified about his depression, the doctor acknowledged that
    the depression was due to many factors, of which the delay was but one, and was
    managed quite well with anti-depressant drugs.

[32]

In
R. v. Kporwodu
(2005), 75 O.R. (3d) 190 (C.A.), this court
    said, Society has a high interest in ensuring that persons charged with [serious]
    crimes are tried on the merits of the charge. That interest however must be
    balanced against the prejudice occasioned to the [accused] by reason of the
    delay. In balancing these interests in this case, the trial judge did not err
    in finding that the appellants s. 11(b) rights were not violated.

[33]

Therefore, we did not give effect to this ground of appeal.

Second Issue:  Did the trial judge confuse the
    jury by leaving unlawful act manslaughter as an alternative theory of
    liability?

[34]

The appellant says that he should have been charged only with
    manslaughter by criminal negligence.  He contends that, in agreeing with the
    Crowns position and charging the jury on manslaughter by an unlawful act
    (aggravated assault), the trial judge confused the jury.  The appellant submits
    that this alternative theory of liability was either a veiled charge of murder
    or redundant.  Also, the trial judges use of two separate decision trees to
    guide the jurys deliberations exacerbated the confusion.  I do not accept
    the appellants position.

[35]

First, at the outset of the trial, Crown counsel alerted the defence and
    the court that he was advancing two routes to manslaughter:

And I think my friend
    is already on notice that the Crown is relying on two possible theories  the
    two theories are unlawful act and criminal negligence.

But I want him to be on notice from the outset of
    the trial of that so that theres no misunderstanding.

[36]

The defence did not object to the Crowns position, or claim that it
    prejudiced the appellants position or that it would confuse the jury.

[37]

Second, although the two routes to manslaughter overlap, they do not
    duplicate each other.  Each has distinctive elements and relies on different
    evidence.  The Crowns closing shows how the two routes differ:

If you find that Joseph Roncaioli intentionally
    injected Ibi Roncaioli with lidocaine and bupivacaine and that the quantities
    he injected endangered her life, then that constitutes manslaughter by the
    unlawful act of aggravated assault. The evidence of motive, his delay in
    calling anyone after she appeared dead and his admission that he had planned
    three days before his wifes death to inject her might assist you in reaching
    this conclusion. ... If you find that Joseph Roncaioli injected Ibi Roncaioli
    with lidocaine and bupivacaine and showed wanton and reckless disregard for her
    life or safety because he injected her without checking whether or not the
    quantities he injected could kill, or without knowing how much he injected and
    without taking the necessary precautions for resuscitation, then that is
    manslaughter by criminal negligence.

[38]

To prove manslaughter by an unlawful act, the Crown had to prove the
    unlawful act of aggravated assault  being the intentional injection of all the
    anaesthetics found in Ibi Roncaiolis body  and prove that this act endangered
    Ibi Roncaiolis life.  To prove manslaughter by criminal negligence the Crown
    had to prove that the appellant showed a wanton or reckless disregard for Ibi
    Roncaiolis life or safety.  The two routes to manslaughter do not duplicate
    each other, and therefore the charge on manslaughter by an unlawful act was not
    redundant.  Nor did it amount to a veiled charge of murder.

[39]

Similarly, although as might be expected, some of the questions on the
    two decision trees replicated each other, the two trees were not identical.
    The nature of the charge and the evidence required the jury to consider similar
    issues at different stages of the analysis.

[40]

The real question underlying this ground of appeal is whether there is
    any risk the jury was confused or might have wrongfully convicted the appellant
    by being presented with two theories of manslaughter.  I do not think that the trial
    judges charge confused the jury or would have led it to wrongfully convict the
    appellant.  The central issues of identity and causation on which the verdict
    turned were quite simple and clear cut.  If the jury found that Ibi Roncaioli
    injected herself with some of the anaesthetics or had a reasonable doubt whether
    she did, they were bound to acquit. Equally, if the jury found that the
    anaesthetics injected by the appellant were not a significant contributing
    cause of her death or had a reasonable doubt whether they were, they were also bound
    to acquit.  Their verdict shows that they had no reasonable doubt on either
    issue.  I would not give effect to this ground of appeal.

Third Issue:  Did the trial judge err by
    instructing the jury on motive?

[41]

In closing, the Crown urged the jury that the appellant had a motive to
    want to kill his wife:  she had spent or given away virtually all of their
    savings and they had a poor marriage.  In her charge, the trial judge set out
    the Crowns position on motive and told the jury, It is for you to decide
    whether Dr. Roncaioli had such a motive, or any motive at all, and how much or
    how little you will rely on it to help you decide this case.

[42]

The appellant submits that the trial judge erred in instructing the jury
    on motive because he was not charged with murder, that is, the appellant was
    not charged with an offense that required the Crown to prove that he had an
    intent to kill his wife.  Alternatively, the appellant submits that the trial
    judge marshalled only the evidence showing that he injected his wife with the
    anaesthetics and failed to marshal the evidence showing that Ibi Roncaioli may
    have injected herself.  I do not agree with either submission.

[43]

Although motive is not an essential element of criminal responsibility,
    it is relevant in that it makes it more likely that the accused committed the
    crime.  Here, although the appellant was not charged with murder  a fact the
    Crown expressly told the jury  the Crown could nonetheless rely on the
    appellants motive to want his wife dead as a piece of circumstantial evidence
    showing that the appellant intentionally injected his wife with the
    anaesthetics and thus helping to prove manslaughter by an unlawful act.
    Whether he had a motive to want his wife dead and its role, if any, in proving
    the Crowns case were matters the trial judge correctly left for the jury to
    decide.

[44]

The trial judge did marshal the evidence showing that Ibi Roncaioli may
    have injected herself with the anaesthetics.  She did so when discussing with
    the jury the issue of who injected the drugs.  For example, she reminded the
    jury of the appellants testimony that, before leaving his wifes room, he put
    a syringe and two vials on the table beside her bed, and that when he returned
    the syringe was on the floor.  And the trial judge told the jury in some detail
    about Ibi Roncaiolis alcohol and gambling addictions, and the financial
    stresses in her life, which may have caused her to self inject.

[45]

I would not give effect to this ground of appeal.

Fourth Issue:  Did the trial judge confuse the
    jury with her instructions on causation?

[46]

In her main charge the trial judge instructed the jury on causation as
    follows:

For an act to cause someones death it must be at
    least a significant contributing cause, one that is beyond something that is
    trifling or minor in nature.  There must not be anything that somebody else
    does later that results in Dr. Roncaiolis act no longer being a significant
    contributing cause of Ibi Roncaiolis death.

[47]

This ground of appeal arises from the second sentence of this
    instruction, which amounts to an instruction on intervening cause.  Later in
    her charge, in answer to two jury questions and at the Crowns request, the
    trial judge removed the intervening cause instruction.  The appellant now
    argues that the trial judges instructions on causation confused the jury and
    removed from their consideration the possibility that Ibi Roncaiolis own unanticipated
    alcohol consumption broke the chain of causation.

[48]

The appellants concern arose in the following way.  In the pre-charge
    conference, the Crown agreed to an intervening cause instruction and the trial
    judge, as I have said, so instructed the jury. After her main charge, the jury
    asked the trial judge to clarify her instructions on causation. By then, the
    Crown had changed its position, and no longer wanted an intervening cause
    instruction.  In responding to the jurys question, the trial judge acceded to
    the Crowns new position.  She repeated her earlier instructions on causation but
    omitted the sentence [T]here must not be anything that somebody else does
    later that results in Dr. Roncaiolis act no longer being a significant contributing
    cause of Ibi Roncaiolis death.

[49]

The jury was alive to the omission because less than an hour later it
    returned with another question:

From the re-read today we understand the charge to
    be for an act to cause death, Dr. Roncaioli's act must be a significant
    contributory factor.

From yesterday's charge we understood For an act
    to cause death, Dr. Roncaioli's act must be a significant contributory factor,
    and nothing that someone else did later, intervened in causing the death.
    Which one is applicable[?]

[50]

The trial judge told the jury to stop deliberating.  She discussed with
    counsel how to answer the question and the next day, over the defences
    objection, she told the jury that the answer to the jurys original question
    was correct, not the instruction in her main charge.  In other words, the jury
    should not consider intervening cause.  To ensure that the jury understood the
    instruction, she repeated, correctly, the legal test for causation and the
    applicable evidence on the two routes to manslaughter.  She also repeatedly
    told the jury that to convict they must be convinced beyond a reasonable doubt
    that the appellant injected the lidocaine and bupivacaine found in Ibi Roncaiolis
    body, and that they must have no reasonable doubt she self injected these two
    drugs.

[51]

So, for example, her recharge contained the following instruction:

Based on the circumstantial evidence you heard,
    specifically the evidence regarding the syringe and the vials and the finding
    of the syringe on the floor, if you are satisfied that the deceased
    self-injected the drugs, as well as the drugs that Dr. Roncaioli administered,
    then the Crown has not discharged its burden of proof and you must find Dr.
    Roncaioli not guilty of manslaughter by unlawful act.  If that evidence leaves
    you with a reasonable doubt about whether Dr. Roncaioli injected the greater
    amount than that to which he admits, then the Crown has not discharged its
    burden of proof and you must find Dr. Roncaioli not guilty of manslaughter by
    unlawful act.  If you are not satisfied beyond a reasonable doubt that Dr.
    Roncaioli injected Ibi Roncaioli with the required amounts of lidocaine and
    bupivacaine to produce the post-mortem concentrations you must find him not
    guilty of manslaughter by unlawful act.

[52]

It might well have been preferable had the trial judge not removed the
    intervening cause instruction.  The question we must resolve, however, is
    whether, in doing so, she took away one of the appellants defences.  In my
    view, the trial judges final instruction on causation did not take away any
    defence available on the evidence.

[53]

The appellant argues that the trial judges final instruction removed
    from the jurys consideration the possibility that Ibi Roncaiolis
    unanticipated consumption of alcohol broke the chain of causation.  This
    argument must fail because there was no evidence and thus no air of reality to
    the suggestion that alcohol alone was an intervening cause of Ibi Roncaiolis
    death.  At its highest, alcohol may have exacerbated the toxic effects of the
    two anaesthetics.  Moreover, Dr. Roncaioli could hardly claim that his wifes
    consumption of six ounces of alcohol the afternoon of her death was
    unanticipated.  He knew, as he acknowledged in his testimony, that she abused
    alcohol.

[54]

Thus, the only intervening cause that had an air of reality was Ibi
    Roncaiolis own injection of the anaesthetics.  On the preponderance of the
    evidence, the combined amount of the two anaesthetics found in Ibi Roncaiolis
    body was likely toxic.  If the jury was convinced beyond a reasonable doubt
    that the appellant alone injected these drugs then he was guilty.  But if the
    jury was persuaded or had a reasonable doubt that Ibi Roncaioli self-injected
    some of the anaesthetics, then the appellant was entitled to an acquittal.

[55]

As the passage quoted in para. 51 illustrates, in her recharge, the
    trial judge repeatedly and correctly instructed the jury on Ibi Roncaiolis
    possible self-injection.  Although done in the context of her charge on
    identity  who injected the two anaesthetics  it amounted to a charge on the
    only potential intervening cause arising from the evidence  Ibi Roncaiolis
    own injection of the two anaesthetics.  Thus the express intervening cause instruction
    requested by the defence and removed by the trial judge would have done no more
    than replicate the critical issue the trial judge repeatedly told the jury to
    resolve: who injected the anaesthetics.  I would not give effect to this ground
    of appeal.

Fifth Issue:  Did the trial judge err by failing
    to sentence the appellant for manslaughter based on criminal negligence and by
    failing to give enough weight to the mitigating considerations favouring a
    lenient sentence?

[56]

The trial judge gave lengthy and thorough reasons for the seven-year
    sentence that she imposed.  She set out her factual findings, and then listed
    both the mitigating and aggravating consideration she weighed in her assessment
    of the appropriate sentence.  She concluded that a substantial penitentiary
    sentence is necessary to meet the needs of denunciation and deterrence and to
    reflect Dr. Roncaiolis moral blameworthiness.

[57]

Central to the trial judges conclusion was her finding that Dr.
    Roncaioli intentionally injected his wife with the two anaesthetics, and that
    those injections constituted an aggravated assault.  Indeed, the trial judge also
    found that the aggravated assault was planned, and that the manslaughter in
    this case more resembles murder than an accidental killing.

[58]

The appellant submits that the trial judge erred in principle in
    sentencing him on the basis of unlawful act manslaughter.  He argues that, as
    the basis for the jurys verdict was unclear, he was entitled to the benefit of
    the doubt and to be sentenced for manslaughter by criminal negligence, which he
    contends is not as morally blameworthy as unlawful act manslaughter.  In making
    this submission, the appellant relies on the decisions of this court in
R.
    v. Cooney
(1995), 98 C.C.C. (3d) 196 (Ont. C.A.) and
R. v. Craig
(2003), 177 C.C.C. (3d) 321 (Ont. C.A.), which I wrote.  In
Cooney
at
    204, the court said the sentencing judge is obliged to give to the convicted
    accused the benefit of the doubt regarding the basis on which he was convicted
    by the jury.  In
Craig
I followed this principle.

[59]

I do not accept the appellants submission.  On reflection, I have
    concluded that the principle set out in
Cooney
and
Craig
is
    inconsistent with several Supreme Court of Canada cases: see
R. v. Brown
,
    [1991] 2 S.C.R. 518,
R. v. Tempelaar
, [1995] 1 S.C.R. 760, and more
    recently
R. v. Ferguson
, [2008] 1 S.C.R. 96.  Where the basis of the
    jurys verdict is unclear, the correct principle is that the sentencing judge
    should make his or her own independent determination of the facts, consistent
    with the jurys verdict.

[60]

In the case before us, the trial judge recognized that the basis of the
    jurys verdict was unclear, and applied this principle. She made ten factual
    findings, which she listed, consistent with the jurys verdict and with the
    evidence. For the purposes of sentencing, it was open to the trial judge to
    then determine that the appellant had committed unlawful act manslaughter and
    she did not err in doing so.

[61]

The trial judge considered one fact to be aggravating in determining the
    appropriate sentence: the appellant not only intentionally injected his wife
    with the anaesthetics but he had planned to do so. As the trial judge
    acknowledged, she had to be convinced beyond a reasonable doubt to rely on this
    finding in sentencing the appellant. Although she did not specifically explain
    why she was convinced beyond a reasonable doubt that the appellants act was
    planned, the evidence at trial could have led her to this conclusion. First,
    the appellant had brought home vials containing the anaesthetics three days
    earlier. Second, there was evidence of motive: the appellant acknowledged that
    he and his wife were having marital problems and that they led separate lives. And,
    there was evidence that the appellant had found out only months earlier that
    Ibi Roncaioli had depleted their financial resources.

[62]

However, even if one were to discount the finding of a planned assault,
    the trial judge had ample grounds for the sentence she imposed. She correctly
    identified other aggravating factors present in this case: 1) The appellant was
    in a double breach of trust as Ibi Roncaiolis spouse and treating physician;
    2) The appellant had admitted to intentionally injecting Ibi Roncaioli so this
    was not an accidental act; 3) It was necessary to denounce violence,
    particularly when a doctor uses his special skills to cause deadly harm. While the
    trial judge also considered planning the assault to be an aggravating feature,
    this finding is not necessary to uphold the reasonableness of the sentence.

[63]

The appellants other submission on sentencing  which I also do not
    accept  is that the trial judge did not give enough weight to the various
    mitigating considerations supporting a more lenient sentence.  These
    considerations included the appellants exemplary working life, his good
    character, and his lack of a criminal record.  The trial judge, however,
    expressly took these considerations into account.  The weight to be given to
    them was a matter for her discretion.  The sentence of seven years that she imposed
    was not unreasonable in the light of the other aggravating factors she
    identified.

[64]

I would therefore not interfere with the appellants sentence.

D.

CONCLUSION

[65]

I would dismiss the appellants appeal against his conviction for
    manslaughter.  Although I would grant leave to appeal his seven-year sentence,
    I would dismiss his sentence appeal.

RELEASED:  May 13, 2011

JL                                                                       John
    Laskin J.A.

I
    agree Robert P. Armstrong J.A.

I
    agree H.S. LaForme J.A.


CITATION:
R. v. Rossi, 2011
          ONCA 380

DATE: 20110516

DOCKET: C52396

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francesco Rossi

Applicant/Appellant

Christi Hunter, for the appellant

Gregory J. Tweney, for the respondent

Heard and released orally: May 11, 2011

On appeal from the decision of the
          summary conviction appeal court dated June 18, 2010 by Justice R. Lococo of
          the Superior Court of Justice, dismissing the appeal from the conviction
          entered on May 15, 2090 by Justice D.T. Vyse of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from the decision
    dismissing the summary conviction appeal for mischief under $5,000 contrary to
    s. 430(4) of the
Criminal Code
.

[2]

We would not grant leave to appeal.  The appellant does not submit that the legal
    issues have greater significance to the general administration of justice.  Rather, the submission is that the proposed
    grounds of appeal are strong.  We
    disagree.

[3]

To the extent that any merit can be ascribed to
    the grounds of appeal, which are at best very weak, they arise in the
    circumstances involving a minor criminal charge and an appellant facing no
    deprivation of liberty.  The terms of the
    appellants probation have long since expired and he now stands discharged from
    the finding of guilt.  Accordingly, this
    case does not warrant a further review by this court and leave to appeal is
    denied.

K.M. Weiler J.A.

E.E. Gillese J.A.

H.S. LaForme J.A.


W A R N I N G

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

517.

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

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

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

Failure to comply

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

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

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

CITATION: R. v. Scott, 2011
      ONCA 365

DATE: 20110506

DOCKET: C50583

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Scott

Appellant

Kristin Bailey, for the appellant

Dena Bonnet, for the respondent

Heard:  May 6, 2011

On appeal from the sentence imposed by Justice Halikowski of
          the Ontario Court of Justice on March 3, 2009.

APPEAL BOOK ENDORSEMENT

[1]

This appeal arises out of the apparent misunderstanding over the view
    expressed by the pre-trial judge (later the trial judge) as to the appropriate
    sentence.  The misunderstanding is reflected in the conflicting affidavits
    filed on appeal.  We cannot resolve that conflict.  We would remind the bar of
    this courts comments in
R. v. OQuinn
(2001), 59 O.R. (3d) 321 at para.
    11.  Placing the essence of the pre-trial plea discussions on the record as
    part of the guilty plea proceeding will avoid misunderstandings.

[2]

The term of imprisonment, which is long served, was entirely
    appropriate.  We see no error in the imposition of the probation term.

[3]

The appeal is dismissed.


CITATION:
R. v.
Vasarhelyi
, 2011 ONCA 397

DATE: 20110520

DOCKET:  C50698

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pal Vasarhelyi

Appellant

Pal Vasarhelyi, appearing in person

Heather Pringle, duty counsel

Susan Ficek, for the respondent

Heard:  January 17, 2011

On appeal from a decision of Justice John B. McMahon of the
          Superior Court of Justice on June 8, 2009.

Watt J.A.:

[1]

In 1990 Pal and Ilona Vasarhelyi divorced. The divorce
    proceedings were acrimonious.  About two
    decades later, the virulence lingered.

[2]

In late 2008, Pal Vasarhelyi (the appellant) laid
an information
under oath before a justice of the peace. The
    appellant alleged that, decades earlier, Ilona Vasarhelyi had committed
    perjury, arson and fraud.  The justice of
    the peace received the information.

[3]

About a month after he laid the information, the
    appellant testified as the only witness on the pre-enquete held to determine
    whether process should issue to compel Ilona Vasarhelyi to answer to the
    charge. The justice of the peace refused to issue process.

[4]

The appellant applied to a judge of the Superior Court
    of Justice for an order in lieu of
mandamus
to compel the justice to issue process on the information.  The judge dismissed the application.

[5]

Pal Vasarhelyi appeals the decision of the judge of the
    Superior Court. He asks that we direct the justice of the peace to issue
    process.  For the reasons that follow, I
    would dismiss the appeal.

THE BACKGROUND FACTS

[6]

Some
    procedural history and a brief recital of the essential features of the
    appellants evidence are critical to the analysis that follows.

The
    Information

[7]

The
    appellant appeared before a justice of the peace on December 4, 2008, and laid
    an information containing allegations of arson, perjury and fraud against his
    former wife.  According to the appellant,
    his ex-wife was criminally responsible for
an arson
at
    his business premises in 1985 and committed perjury on several different
    occasions between 1990 and 1998. The appellant claimed that his ex-wife also
    stole his OHIP card in 1984 and provided it to others who fraudulently obtained
    prescription drugs or health related services.

[8]

The
    justice of the peace, apparently satisfied that the allegations met the requirements
    of s. 504(a) of the
Criminal Code
,
    received the information.

The Pre-enquete

[9]

On
    January 12, 2009, a justice of the peace undertook a pre-enquete to determine whether
    process should issue to compel Ilona
Vasarhelyi to answer to the charges
    contained in the appellants information. The appellant was there with counsel.
    A student-at-law appeared for the Attorney General. The appellant was the only
    witness who gave evidence at the hearing.

The Evidence at the Pre-enquete

[10]

The
    allegations of perjury include several discrete incidents over many years.

[11]

The
    appellant claimed that, as a result of his ex-wifes perjury, he was detained
    at the airport for two or three hours in March, 1990, when he was taking their
    child to his place in Florida for March break.  He says that his ex-wife told the F.B.I. that he was a spy and an
    international criminal.

[12]

The
    appellant gave two other examples of his ex-wifes perjury.  One occurred in a family court proceeding on
    June 8, 1998, when she falsely claimed that he had harassed her physically and
    emotionally during the hearing: officials took a restraining order against me
    without my knowledge. On February 10, 1999, during the appellants trial on a
    charge of uttering death threats, his ex-wife claimed that he had hired a hit man
    to kill her. The appellant was in custody during the investigation and
    convicted of the offence charged.

[13]

The
    appellant did not produce any transcripts of the allegedly perjured testimony
    of his ex-wife. Nor was any evidence adduced capable of constituting
    corroboration of the appellants allegations as s. 133 of the
Criminal Code
requires in prosecutions
    for perjury.

[14]

The
    arson charge had to do with a fire at the appellants woodworking shop in
    1985.  The appellants only key to the
    shop had disappeared before the fire.  His wife had claimed that their child had thrown the key into the
    toilet. While his wife was not at home, the appellant removed the toilet.  He found no key.  The appellant claimed that his wife had given
    the shop key to her (then) boyfriend.

[15]

Someone
    from the Office of the Fire Marshall telephoned the appellant to
notify  him
about a
    fire at his shop.  During this discussion
    the appellants ex-wife smiled and appeared to be happy.  The appellant says that this reaction also
    proves that his ex-wife committed arson.

[16]

The
    allegation of fraud related to what the appellant claimed had been fraudulent
    use of his OHIP card to obtain antibiotics for his ex-wifes friend who had
    come to Canada from Romania to obtain medical care.  The appellant told the justice that his OHIP
    card, along with other items of his identification, had been stolen in 1984.  In 2000, a nurse told him that someone had
    been using his OHIP card.  The appellant
    obtained medical care with a replacement card.

[17]

Despite
    the presence of counsel, the appellants responses to questions at the hearing were
    discursive, often unresponsive to the questions and unfocussed. When asked
    about the delay of decades in laying the charges, the appellant responded:
    its a very funny question.  He
    explained that he wanted to wait until the only child of their marriage had
    grown up to avoid retaliatory measures towards the child by his ex-wife.  By the time the pre-enquete took place, the
    child was 26 years old.

The Submissions at the Pre-enquete

[18]

At
    the pre-enquete, counsel for the appellant contended that the appellant had
    adduced evidence that Ilona
Vasarhelyi had made untrue statements to a
    justice of the peace on June 8, 1998.  These statements, which included complaints that the appellant beat her,
    persuaded the justice to issue a restraining order against the appellant.  She also lied at the appellants trial for
    uttering death threats of which he was convicted.

[19]

Counsel
    for the appellant urged the justice of the peace to issue process on the
    allegations of arson and fraud. The fire at the workshop had been set by
    someone who had access to the building, since there were no signs of forcible
    entry. The evidence of the appellant pointed to his ex-wife as the only person
    who had access to the keys.  In a similar
    way, the appellants ex-wife had exclusive access to the appellants
    identification, including his OHIP card. Thus, it was his ex-wife who stole the
    OHIP card and provided it to a mutual friend to obtain medical benefits to
    which the friend was not entitled.

[20]

The
    articling student who appeared on behalf of the Attorney General opposed the
    issuance of process. He pointed out that the appellant had offered no evidence
    of what Ilona
Vasarhelyi had actually said in any of the hearings, or
    that what she said was false. Further, the appellant had adduced no evidence
    capable of constituting corroboration as required by s. 133 of the
Criminal Code
.

[21]

The agent of the Attorney General contended that
    the appellant had adduced no evidence on the arson charge that there had been an
    actual fire that caused damage to his workshop, let alone a fire set at the
    direction of or with the participation of Ilona Vasarhelyi.  Her smile upon learning of the events was no
    evidence of her participation in them.  Likewise, the link between the appellants ex-wife and the theft and
    fraudulent use of his OHIP card, as reported by
an unnamed
    nurse years
later, was unsupported by any evidence.

The Decision at the Pre-enquete

[22]

At
    the conclusion of the pre-enquete, the justice decided not to issue
    process.  The nucleus of his reasons for
    refusal appears in this passage:

Now
    you have to understand, the nature of a pre-enquete hearing is to decide
    whether process should be issued, whether these charges can go forward, whether
    the Crown feels that they can prosecute. The very nature of their job is to
    prosecute. They want to prosecute.  So
    when I hear from a Crown that, Listen, I dont think that, my Crowns opinion
    is that they dont think theres evidence here to prosecute, I have to pay very
    close attention to that.  And I do.

And
    I heard the same evidence today and I did hear a lot of hearsay evidence and
    Im not satisfied, Mr. Vasarhelyi, that charges can be issued, or process can
    be issued on any of these charges. Im not satisfied theres enough evidence in
    the Court today to issue process. So
process on all three
    charges, sir, are
not issued.

The Application for
Mandamus

[23]

The appellant sought an order in lieu of
mandamus
to compel the justice of the
    peace to issue process on the information. A judge of the Superior Court of
    Justice dismissed the application.

[24]

At the outset of his reasons for judgment, the application
    judge began:

I
    am mindful that under the provisions of s. 507.1 of the
Criminal Code
the applicant must satisfy the justice of the peace
    that there is a
prima facie
case
    based upon the evidence of a witness or witnesses called on the pre-enquette
    hearing.  The evidence called must be
    admissible at law.

[25]

The application judge then considered the evidence
    adduced in connection with each charge.

[26]

In connection with the charge of perjury, the
    application judge noted that the only evidence about the falsity of the
    ex-wifes testimony was the appellants opinion that she lied. The judge
    concluded:

The
    learned justice of the peace I find did not exceed his jurisdiction in electing
    not to issue process on the perjury charges.  In fact, I find the justice of the peace was correct in law in not
    issuing process since there was no evidence of an essential element of the
    offence of perjury; i.e., there was no evidence of corroboration.
[1]

[27]

The application judge concluded that the justice of the
    peace had
not
committed
    jurisdictional error in failing to issue process on the proposed charge of
    fraud.  The judge reasoned:

In
    regard to the count of fraud, there was no admissible evidence presented at the
    pre-enquette to link his former wife directly to the theft of the OHIP card or
    its subsequent use.  Further, the alleged
    subsequent use was provided by way of a hearsay statement received by the
    applicant.

He added:

Further, I am satisfied that the learned justice of
    the peace was again correct in law in concluding that there was insufficient
    evidence to issue process on the fraud charge.

[28]

In his rejection of the appellants submissions on the
    arson charge, the application  judge
    said:

In
    examining whether on the totality of the circumstantial evidence if the
prima facie
test has been met, I must
    note that, first, there was no admissible evidence before the learned justice
    of the peace that could establish that the fire was deliberately set.  Second, what the superintendent is alleged to
    have said to the applicant twenty-four years ago would be inadmissible hearsay.
    Third, the applicants belief his former wife set the fire would not be
    admissible evidence at trial but would be speculation.

THE GROUNDS OF APPEAL

[29]

The
    appellant submits that the application judge was wrong in concluding that the
    justice had acted within his jurisdiction in refusing to issue process. The
    jurisdictional error left uncorrected by refusal of
mandamus
, according to the appellant, was that the justice failed
    to consider
all
the evidence in
    deciding whether to issue process.

[30]

Duty
    counsel advanced a different argument on the appellants behalf. Ms. Pringle
    submitted that the justice exceeded his jurisdiction by restricting his
    consideration to evidence that would be
admissible
at a criminal trial. The incorporation of the provisions of s. 540(7) of the
Criminal Code
, by the combined operation
    of ss. 507.1(8) and 507(3)(b), permits the introduction of evidence at the
    pre-enquete that would not otherwise be admissible in a criminal trial. Thus,
    the argument continues, the justice declined jurisdiction when he failed to
    take into account the hearsay evidence given by the appellant in determining
    whether to issue process.

[31]

For
    the respondent, Ms. Ficek contends that the appellant has failed to establish
    any jurisdictional default or error here. The justice was simply not persuaded
    that the information offered by the appellant met the standard required for the
    issuance of process. The shortcomings in the appellants testimony were not
    limited to hearsay.  What the appellant
    said under oath was rife with speculation, incapable of supporting any rational
    inference that linked the putative accused to the offences alleged.  Nothing said by the appellant was above the
    level of unfounded suspicion.

[32]

Ms.
    Ficek says that the referential incorporation of s. 540(7) into the pre-enquete
    is of no moment in this case.  At bottom,
    evidence inadmissible under traditional rules of admissibility may only be
    relied upon where the justice considers it credible and trustworthy under s.
    540(7) and the notice and disclosure required by s. 540(8) have been provided
    to the Attorney General. The justice, as he was entitled to do, considered it
    neither here. The application judge was right to conclude that the justice had
    committed no jurisdictional error.

ANALYSIS

[33]

To
    determine whether an order in lieu of
mandamus
should have issued, an appropriate foundation on which to begin combines a
    brief measure of the purpose of the pre-enquete, a ration of the procedure that
    governs the hearing and a portion of the principles that govern the
    extraordinary remedy of
mandamus
.

The Pre-enquete

[34]

Section
    504 of the
Criminal Code
describes
    who may lay
an information
before a justice of the
    peace alleging that a person or persons committed an indictable offence.  The section describes the form of the
    information and defines the circumstances in which the justice is required to
    receive it.

[35]

Receipt
    of
a sworn
information by a justice of the peace does
    not, on its own, require the person alleged to have committed the offence to
    answer to the charge.  The next step is a
    hearing or an inquiry to determine whether the person alleged to have committed
    the offences described in the sworn information should be compelled to appear
    in answer to those charges. This hearing or inquiry determines whether process
    should issue.

[36]

The
Criminal Code
contains two separate
    provisions for inquiries about the issuance of process. The distinction resides
    in the status of the informant. One provision governs where the informant is a
    law enforcement official and the other, where the informant is a private
    citizen. Where, as in this case, the informant is a private citizen,
    s. 507.1 of the
Criminal Code
governs the inquiry into the issuance of process, commonly described as the
    pre-enquete.

[37]

Under
    s. 507.1, the purpose of the pre-enquete is to determine whether process should
    issue to compel the appearance of the prospective accused to answer to the
    charges contained in the information. The designated justice or provincial
    court judge who presides at the pre-enquete decides whether a case has been
    made out for the issuance of process on the basis of the
allegations
of the informant and the
evidence
of witnesses.

[38]

The
    language used in s. 507.1(3), which defines the conditions to be satisfied
    before process may issue, is discretionary: the judge or designated justice
may
issue a summons or warrant.  The standard or test the judge or justice is
    to apply emerges from s. 507.1(2): that a case for doing so is made out.  Sections 507.1(5)  (7) describe the effect
    of a finding that no case has been made out for the issuance of process.

Evidence at the Pre-enquete

[39]

Section
    507.1(3
)(
a) distinguishes between the
allegations
of the informant, on the
    one hand, and the
evidence
of
    witnesses, on the other. Unlike s. 507(1
)(
a)(ii),
    applicable to informations laid by law enforcement officers, where the
    introduction of the
evidence
of
    witnesses is only required where the justice considers it desirable or
    necessary to do so, s. 507.1(3)(a) appears to make the introduction of
    evidence of witnesses essential.  Such
    a requirement serves as an important control over invocation of the criminal
    process to further the fevered imaginings of a private informant.

[40]

Despite
    this apparent requirement of the evidence of witnesses at the pre-enquete
    under s. 507.1(3), the section does
not
specify or otherwise describe, in express words, the substance or kind of
    evidence that must or may be introduced on the inquiry.  For example, nothing like s. 518(1),
which sets the boundaries of the justices inquiry and delineates
    the nature and scope of evidence that may be received at a judicial interim
    release hearing, appears in s. 507.1.

[41]

The
    absence of express provisions governing the evidence of witnesses at the
    pre-enquete is alleviated by the provisions of s. 507.1(8), which incorporate
    by reference ss. 507(2)-(8). Among the incorporated provisions of ss.
    507(2)-(8) is s. 507(3)(b), which requires a justice who hears the evidence of
    a witness under s. 507(1), a provision like ss. 507.1(2) and (3), to
    cause the evidence to be taken in accordance with section 540 in so far as
    that section is capable of being applied.

[42]

Section
    540 is one of several provisions that appear under the heading,
Taking Evidence of Witnesses
,

under Part XVIII that deals with the
    procedure on the preliminary inquiry.

[43]

Sections
    540(1)  (5) have appeared in one form or another, since the
Criminal Code
of 1892. With the more
    recent addition of subsection (6), these provisions describe the mechanics of
    recording evidence received in the proceedings. They do not concern themselves
    with what may be given in evidence, only with how it is to be recorded once
    received.

[44]

Sections
    540(7)  (9) entered service on June 1, 2004, as part of a comprehensive series
    of amendments intended to expedite the hearing and circumscribe the scope of
    the preliminary inquiry.  The current
    regime for private prosecutions, including the procedure to be followed at the
    pre-enquete, came into force on July 23, 2002. The referential incorporation of
    the provisions of s. 540 by what is now s. 507(3) continues provisions to the
    same effect that have been in force since prior to the 1955 revision of the
Criminal Code
.

[45]

Sections
    540(7)-(9) and sections 540(1)-(6) serve entirely different functions.

[46]

The
admissibility
of evidence at a
    preliminary inquiry is the focus of ss. 540(7
)-
(9).  In other words, these provisions have to do
    with
what
the justice may receive as
    evidence at the inquiry.  Sections
    540(7)-(9) expand the scope of what may be received as evidence beyond what the
    traditional rules of admissibility would permit.  Provided the information tendered for
    reception is credible and trustworthy, and the opposite party has received
    reasonable notice of the intention to introduce it, together with disclosure,
    the justice may admit the information as evidence even though the traditional
    rules of evidence would exclude it.

[47]

In
    contrast, ss. 540(1)-(6)
have
nothing to do with
what
may be admitted as evidence at the
    preliminary inquiry.  Their focus is on
how
what is admitted as evidence is to
    be recorded, not on the evidentiary composition of the record.

[48]

In
    combination, ss. 507.1(8) and 507(3
)(
b) appear to
    incorporate s. 540 in its entirety in so far as that section is capable of
    being applied to the pre-enquete.  By
    contrast, s. 646,
[2]
the marginal heading of which is also taking evidence, expressly excludes ss.
    540(7)-(9) from its incorporation of the evidence taking provisions of Part
    XVIII.

[49]

Unlike
    a preliminary inquiry to which s. 540 applies directly, a pre-enquete is not an
    adversarial proceeding.  The person
    against whom the informant seeks to have process issued is not present and is
    not represented by counsel.  The Attorney
    General is entitled to notice of the hearing, an opportunity to attend, to
    cross-examine and call witnesses and to present any relevant evidence at the
    pre-enquete without being deemed to intervene in the proceeding.  The Attorney General may also enter a stay of
    proceedings on a private information as soon as the information has been laid
    or withdraw the information once a justice has determined that process should
    issue:
Criminal Code
, s. 579(1);
R. v. Dowson
, [1983] 2 S.C.R. 144; and
R. v. McHale
(2010), 256 C.C.C. (3d) 26
    (Ont. C.A.), at para.
89,
leave to appeal to S.C.C. refused,
    [2010] S.C.C.A. No. 290.

Evidentiary Decisions and Extraordinary Remedies

[50]

The
    appellant seeks
mandamus
/
certiorari
compelling the issuance of
    process.  Both
mandamus
and
certiorari
are extraordinary remedies that issue out of a superior court for
    jurisdictional default or excess. Each is discretionary. Neither issues as of
    right.

[51]

An
    order in lieu of
mandamus
may be
    granted to compel a court of limited jurisdiction to exercise a jurisdiction or
    discharge a duty, but not to compel the court, tribunal or official to exercise
    the jurisdiction or discharge the duty in a particular way.

[52]

Jurisdiction
    has to do with the authority to decide an issue or perform a duty, not the
    nature or correctness of the decision made:
Belgo
    Canadian Pulp & Paper Co. v. Court of Sessions of Peace of Three Rivers
(1919),
    33 C.C.C. 310 (Q     ue. S.C. In Review),
    at pp. 317-318. On subjects within its jurisdiction, if a court of limited
jurisdiction  misconstrues
a statute or otherwise misdecides the law, the remedy to correct the legal
    error is an appeal from the final disposition, not an application for an order
    in lieu of the extraordinary remedies of
mandamus
or
certiorari
:
Re Longpoint Co. v. Anderson
(1891), 18
    O.A.R. 401 (C.A.), at pp. 406; 407-408; 411.

[53]

As
    a general rule, errors in the admission or exclusion of evidence are not
    jurisdictional errors:
Attorney General
    for Quebec v. Cohen
, [1979] 2 S.C.R. 305, at pp. 307-308.  Further, errors in the application of the
    rules of evidence are not jurisdictional errors:
R. v. Deschamplain
, [2004] 3 S.C.R. 601, at para. 17.  The same may be said about errors in interpreting
    statutory provisions that are not jurisdictional in nature.

The Principles Applied

[54]

The
application of the governing principles to the circumstances
    of this case compel
the conclusion that the application judge did not
    err when he refused the relief sought. I reach this conclusion, however, on a
    different basis than did the application judge.

[55]

The
    task set for the justice of the peace by s. 507.1 was to determine whether he
    considered that the appellant had made out a case for the issuance of process
    to compel the appearance of the prospective accused to answer allegations of
    three historical indictable offences. The justices decision, according to s.
    507.1(3
)(
a), was to be based upon a hearing and
    consideration of the
allegations
of
    the informant and the
evidence
of
    witnesses. Unlike the provisions of s. 507(1
)(
a)(ii),
    applicable to informants associated with law enforcement, s. 507.1(3)(a)
    appears to
require
the evidence of
    witnesses.  The only witness here was
    the appellant.

[56]

Section
    507.1 contains no express provisions about what is admissible as evidence at
    the pre-enquete. Such a lacuna is scarcely remarkable. As a matter of general
    principle, however, it would seem logical to conclude that, at the very least, evidence
    that showed or tended to show the commission of the listed offences by the
    prospective accused would be relevant and material at the pre-enquete:
R. v.
    Grinshpun
(2004), 190 C.C.C. (3d) 483 (B.C.C.A.), at para.
33,
leave to appeal to S.C.C. refused, [2004] S.C.C.A. No.
    579.

[57]

No
    principled reason would exclude from the evidentiary mélange at the
    pre-enquete, evidence that would be relevant, material and admissible (under
    the traditional rules of evidence) in support of committal at the preliminary
    inquiry or in proof of guilt at trial.

[58]

We
    need not decide in this case whether the absence of exclusionary or more
    restrictive language from s. 507(3
)(
b) renders the
    expansive provisions of ss. 540(7)-(9) applicable at the pre-enquete for
    private informations. Nor need we decide whether competing policy
    considerations overwhelm the expansive language of incorporation and exclude
    the operation of ss. 540(7)-(9) in the non-adversarial proceedings of the
    pre-enquete. In the end, the conclusions at first instance and on review that
    process should not issue in this case are firmly grounded and
    unassailable.  I say so for several
    reasons.

[59]

First,
    when the reasons of the justice of the peace and application judge are read as
    a whole, neither conclusion rests exclusively on the basis that process should
    not issue because the evidence on which the application was grounded would not
    be admissible at trial.

[60]

The
    justice of the peace referred to the hearsay nature of the appellants evidence,
    but concluded that the evidence, as a whole, was simply not sufficient to
    warrant the issuance of process. He did not say, expressly or by necessary
implication, that
process would not issue because the
    informants evidence would not be admissible at trial.

[61]

Some
    passages in the reasons of the application judge support the contention that he
    considered that only admissible evidence could be taken into account in the
    decision about the issuance of process. But elsewhere the application judge
    refers to no evidence and insufficient evidence to justify the issuance of
    process. Reading his reasons as a whole, I am not satisfied that the
    application judge grounded his conclusion on the failure of the appellants
    evidence to satisfy the traditional rules of admissibility.

[62]

Second,
    I have grave doubts whether an error about the nature of the evidence that may
    be considered in determining the issue framed for consideration of the justice
    at the pre-enquete amounts to jurisdictional error remediable by recourse to
    orders in lieu of
mandamus
or
certiorari
.

[63]

Finally,
    the hearsay rule was well down the list of reasons for declining to issue
    process. The appellants testimony lacked many of the indicia of evidence. The
    appellants evidence consisted of an amalgam of unshakeable beliefs, unbridled
    speculation and patent animus. It left untouched many, if not most essential
    elements of the offences alleged in the information. On no standard of measure
    could it justify the issuance of process.

CONCLUSION

[64]

For these reasons, I would dismiss the appeal.

David Watt J.A.

I agree K. Feldman J.A.

I agree Paul Rouleau J.A.

RELEASED:  May 20,
    2011 KF

APPENDIX A

Applicable
Criminal Code
provisions

Section 504

504.    In
    what cases justice may receive information  Any one who, on reasonable
    grounds, believes that a person has committed an indictable offence may lay an
    information in writing and under oath before a justice, and the justice shall
    receive the information, where it is alleged

(a)
that
the person has committed, anywhere, an indictable
    offence that may be tried in the province in which the justice resides, and
    that the person

(i)
is
or is
    believed to be, or

(ii)
resides
or is
    believed to reside,

Within the territorial jurisdiction of the
    justice;

(b)
that
the person, wherever he may be, has committed an
    indictable offence within the territorial jurisdiction of the justice;

(c)
that
the person has, anywhere, unlawfully received property
    that was unlawfully obtained within the territorial jurisdiction of the
    justice; or

(d)
that
the person has in his possession stolen property within
    the territorial jurisdiction of the justice.

Section 507

507. (1) Justice to hear informant and witnesses  public
    prosecution  Subject to subsection 523(1.1), a justice who receives an
    information laid under section 504 by a peace officer, a public officer, the
    Attorney General or the Attorney Generals agent, other than an information
    laid before the justice under section 505, shall, except if an accused has
    already been arrested with or without a warrant,

(a)
hear
and consider,
ex parte
,

(i)
the
allegations
    of the informant,  and

(ii)
the
evidence of
    witnesses, where  he  considers it desirable or  necessary
    to do so; and

(b)
where
he considers that a case for so doing is made out,
    issue, in accordance with this section, either a summons or a warrant for the
    arrest of the accused to compel the accused to attend before him or some other
    justice for the same territorial division to answer to a charge of an offence.

(2)       Process
    compulsory  No justice shall refuse to issue a summons or warrant by reason
    only that the alleged offence is one for which a person may be arrested without
    warrant.

(3)       Procedure
    when witnesses attend  A justice who hears the evidence of a witness pursuant
    to subsection (1) shall

(a)
take
the evidence on oath; and

(b)
cause
the evidence to be taken in accordance with section
    540 in so far as that section is capable of being applied.

(4)       Summons
    to be issued except in certain cases  Where the justice considers that a case
    is made out for compelling an accused to attend before him to answer to a
    charge of an offence, he shall issue a summons to the accused unless the
    allegations of the informant or the evidence of any witness or witnesses taken
    in accordance with subsection (3) disclose reasonable grounds to believe that
    it is necessary in the public interest to issue a warrant for the arrest of the
    accused.

(5) No process in blank  A justice shall not sign
    a summons or warrant in blank.

(6)       Endorsement
    of warrant by justice  A justice who issues a warrant under this section or
    section 508 or 512 may, unless the offence is one mentioned in section 522,
    authorize the release of the accused pursuant to section 499 by making an
    endorsement on the warrant in Form 29.

(7)       Promise
    to appear or recognizance deemed to have been confirmed  Where, pursuant to
    subsection (6), a justice authorizes the release of an accused pursuant to
    section 499, a promise to appear given by the accused or a recognizance entered
    into by the accused pursuant to that section shall be deemed, for the purposes
    of subsection 145(5), to have been confirmed by a justice under section 508.

(8)       Issue
    of summons or warrant  Where on an appeal from or review of any decision or
    matter of jurisdiction, a new trial or hearing or a continuance or renewal of a
    trial or hearing is ordered, a justice may issue either a summons or a warrant
    for the arrest of the accused in order to compel the accused to attend at the
    new or continued or renewed trial or hearing.

Section 507.1

507.1  (1)       Referral when private prosecution  A
    justice who receives an information laid under section 504, other than an
    information referred to in subsection 507(1), shall refer it to a provincial
    court judge or, in Quebec, a judge of the Court of Quebec, or to a designated
    justice, to consider whether to compel the appearance of the accused on the
    information.

(2)       Summons
    or warrant  A judge or designated justice to whom an information is referred
    under subsection (1) and who considers that a case for doing so is made out
    shall issue either a summons or warrant for the arrest of the accused to compel
    him or her to attend before a justice to answer to a charge of the offence
    charged in the information.

(3)       Conditions
    for issuance  The judge or designated justice may issue a summons or warrant
    only if he or she

(a)
has
heard and considered the allegations of the informant
    and the evidence of witnesses;

(b)
is
satisfied that the Attorney General has received a copy
    of the information;

(c)
is
satisfied that the Attorney General has received
    reasonable notice of the hearing under paragraph (a); and

(d)
has
given the Attorney General an opportunity to attend the
    hearing under paragraph (a) and to cross-examine and call witnesses and to
    present any relevant evidence at the hearing.

(4)       Appearance
    of Attorney General  The Attorney General may appear at the hearing held under
    paragraph (3
)(
a) without being deemed to intervene in
    the proceeding.

(5)       Information
    deemed not to have been laid  If the judge or designated justice does not
    issue a summons or warrant under subsection 92, he or she shall endorse the
    information with a statement to that effect. Unless the informant, not later
    than six months after the endorsement, commences proceedings to compel the
    judge or designated justice to issue a summons or warrant, the information is
    deemed never to have been laid.

(6)       Information
    deemed not to have been laid  proceedings commenced  If proceedings are
    commenced under subsection (5) and a summons or warrant is not issued as a
    result of those proceedings, the information is deemed never to have been laid.

(7)       New
    evidence required for new hearing  If a hearing in respect of an offence has
    been held under paragraph (3
)(
a) and the judge or
    designated justice has not issued a summons or a warrant, no other hearings may
    be held under that paragraph with respect to the offence or an included offence
    unless there is new evidence in support of the allegation in respect of which
    the hearing is sought to be held.

(8)       Subsection
    507(2) to (8) to apply  Subsections 507(2) to (8) apply to proceedings under
    this section.

(9)       Non-application
     Information laid under section 810 and 810.1  Subsections (1) to (8) do not
    apply in respect of
an information
laid under section
    810 or 810.1.

(10) Definition of
designated justice  In this section,
designated justice means a justice designated for the purpose by the chief
    judge of the provincial court having jurisdiction in the matter or, in Quebec,
    a justice designated by the chief judge of the Court of Quebec.

(11)     Meaning of Attorney General  In this
    section, Attorney General includes the Attorney General of
Canada  and
his or her lawful deputy in
    respect of proceedings that could have been commenced at the instance of the
    Government of Canada and conducted by or on behalf of that Government.

Section 540

540.
    (1)          Taking evidence  Where an
    accused is before a justice holding a preliminary inquiry, the justice shall

(a)       take the evidence under oath of the
    witnesses called on the part of the prosecution and allow the accused or
    counsel for the accused to cross-examine them; and

(b)
cause
a record
    of the evidence of each witness to be taken

(i)        in
    legible writing in the form of a deposition, in Form 31, or by a                              stenographer appointed by him or  pursuant
    to law, or

(ii)       in a province where a sound recording
    apparatus is authorized by or under provincial legislation for use in civil
    cases, by the type of apparatus so authorized and in accordance with the
    requirements of the provincial legislation.

(2)       Reading and signing depositions  Where a
    deposition is taken down in writing, the justice shall, in the
presence  of
the
    accused, before asking the accused if he wishes to call witnesses,

(a)
cause
the
    deposition to be read to the      witness;

(b)
cause
the
    deposition to be signed by the witness;
    and

(c)
sign
the deposition himself.

(3)       Authentication
    by justice  Where depositions are taken down in writing the justice may sign

(a)
at
the end of each deposition; or

(b)
at
the end of several or all of the depositions in a manner
    that will indicate that his signature is intended to authenticate each
    deposition.

(4)       Stenographer
    to be sworn  Where the stenographer appointed to take down the evidence is not
    a duly sworn court stenographer, he shall make oath that he will truly and
    faithfully report the evidence.

(5)       Authentication
    of transcript  Where the evidence is taken down by a stenographer appointed by
    the justice or pursuant to law, it need not be read to or signed by the
    witnesses, but, on request of the justice or of one of the parties, shall be
    transcribed, in whole or in part, by the stenographer and the transcript shall
    be accompanied by

(a)
an
affidavit of the stenographer that it is             a true report of the evidence; or

(b)
a
certificate that it is a true report of the evidence if
    the stenographer is a duly sworn court stenographer.

(6)       Transcription
    of record taken by sound recording apparatus  Where, in accordance with this
    Act, a record is taken in any proceedings under this Act by a sound recording
    apparatus, the record so taken shall, on request of the justice or of one of
    the parties, be dealt with and transcribed, in whole or in part, and the
    transcription certified and used in accordance with the provincial legislation,
    with such modifications as the circumstances require mentioned in subsection
    (1).

(7)       Evidence
     A justice acting under this Part may receive as evidence any information that
    would not otherwise be admissible but that the justice considers credible or
    trustworthy in the circumstances of the case, including a statement that is
    made by a witness in writing or otherwise recorded.

(8)       Notice
    of Intention to tender  Unless the justice orders otherwise, no information
    may be received as evidence under subsection (7) unless the party has given to
    each of the other parties reasonable notice of his or her intention to tender
    it, together with a copy of the statement, if any, referred to in that
    subsection.

(9)       Appearance
    for examination  The justice shall, on application of a party, require any
    person whom the justice considers appropriate to appear for examination or
    cross-examination with respect to information intended to be tendered as
    evidence under subsection (7).

[1]

Corroboration is not an essential
    element of the offence of perjury, but is an evidentiary requirement for
    conviction under s. 133.

[2]
Section
    646 applies to jury trials. A similar provision excluding ss. 540(7)-(9)
    appears in s. 557 that applies to trials without a jury.


WARNING

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

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

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

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

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

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

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

CITATION: R.
          v. Vogel, 2011 ONCA 342

DATE: 20110502

DOCKET: C45370

COURT OF APPEAL FOR ONTARIO

Laskin, Juriansz and MacFarland

BETWEEN

Her Majesty The Queen

Respondent

and

Hans-Joachim Vogel

Appellant

Richard Posner for the appellant

Elise Nakelsky for the respondent

Heard:
April 27, 2011

On appeal from the conviction imposed by Justice James Robert
          MacKinnon of the Superior Court of Justice dated September 6, 2005.

ENDORSEMENT

[1]

Hans Vogel appeals from his conviction on July 7, 2005
    for the manslaughter of his wife. He had been charged with second-degree
    murder. He raises several grounds of appeal but we find it necessary to deal
    only with his submission that the trial judge did not adequately instruct the
    jury on the mental element required for manslaughter.

[2]

The Crowns theory at trial was that the appellant, in
    a fit of frustration over his wifes excessive drinking and their financial
    problems, had committed second-degree murder by deliberately pushing his wife
    down the stairs in the middle of the night. Given that the injuries the
    deceaseds suffered were consistent with a fall down a flight of stairs, the
    differing accounts the appellant had given about how he discovered her at the
    bottom of the stairs were an important part of the Crowns case. The appellant
    had stated that he found the deceased after coming home from a friends home,
    that he discovered her body as he was going to the bathroom in the middle of
    the night, and finally that he accidentally bumped into her in the upstairs
    hallway as he was going to the toilet beside the staircase.

[3]

The trial judges charge focused on the state of mind
    required for murder and said little about the mental state required for the
    included offence of manslaughter. The trial judge told the jury that if they
    had a reasonable doubt that what happened to the deceased was an accident, they
    must find the appellant not guilty. On the murder charge, he said the Crown
    must prove that the appellant either meant to kill his wife or meant to cause
    her bodily harm that he knew was likely to kill her and saw the risk that she
    could die from the injury but went ahead anyway and took the chance. He added
    If [the appellant] did not mean to do either, [he] has committed manslaughter.
    He also told them that Manslaughter, very briefly, is the wrongful killing of
    a human being by means of an unlawful act but without the intention needed for
    murder.

[4]

These instructions to the jury reflected the competing
    theories of the Crown and the defence at trial. The trial judge did not
    instruct the jury specifically on the mental component required for
    manslaughter.

[5]

The trial judges initial charge to the jury about
    manslaughter, though incomplete, would have been sufficient in the circumstances
    of the case. The defence recognized that deliberately pushing a person down a
    flight of stairs would give rise to an objectively foreseeable risk of bodily
    harm, which is neither trivial nor transitory. Thus, the jury was presented
    with the two alternatives  an accident or a deliberate push down the stairs.
    The jury, however, evidently considering another scenario permitted by the
    evidence, posed a question about the mental state required for manslaughter.
    The trial judges response to that question was inadequate.

[6]

The jury, in a preface to their question, indicated
    that they recognized that the unlawful act alleged in the case was the
    appellants assault on his wife by
deliberately pushing her down the stairs
.
    (Underlining not added). The jury then asked If he deliberately pushed her out
    of the way,
not
intending to push her down the stairs, but simply
    intending to move her out of the way, does that constitute an unlawful act?
    (Underlining not added).

[7]

The trial judge answered this question by telling the
    jury:

Your question,
    ladies and gentlemen, assumes a deliberate pushing, and intentional pushing. I
    instruct you, as a matter of law, that an intentional application of force
    without consent constitutes an assault in law and that is an unlawful act. The
    strength of the force is immaterial.

[8]

There are two problems with this. First, it is not
    necessarily obvious that pushing the deceased out of the way in the hallway,
    not intending that she fall down the stairs, is an objectively dangerous act.
    Second, the instruction that the strength of the force is immaterial is
    simply wrong. The trial judge should have instructed the jury that the mental
    state required for unlawful act manslaughter is objective foreseeability of
    the risk of bodily harm which is neither trivial nor transitory, in the context
    of a dangerous act:
R. v Creighton
(1993), 83 C.C.C. (3d) 346, at 373.

[9]

The trial judges answer to the question would have
    misled the jury. The appeal must be allowed. The conviction is set aside and
    the matter is remitted to be Superior Court of Justice for a new trial.

John Laskin J.A.

R.G. Juriansz J.A.

J. MacFarland J.A.


CITATION:
R. v. Williams, 2011 ONCA 398

DATE: 20110520

DOCKET: C50753

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Moldaver and Simmons JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

William Jack Williams

Appellant

Phil Downes, for the appellant

William J. Williams, in person

Amy Alyea, for the respondent

Heard and endorsed: May 16, 2011

On appeal from conviction entered by Justice J. Stephen
          ONeill of the Superior Court of Justice, sitting with a jury, dated June 17,
          2009.

APPEAL BOOK ENDORSEMENT

[1]

In our view, this appeal must be allowed and a
    new trial ordered on the three counts on which the appellant was convicted.

[2]

Evidence
    was led improperly at trial that the appellant refused to respond to police
    questions about the location of a key to the gun cabinet. This evidence was
    repeated by the trial judge in his charge to the jury when he described the
    position of the Crown.  It appears as well that the Crown failed to disclose a
    property report that might reasonably have assisted the appellant in his
    defence of the gun storage charges. The convictions for the two gun storage
    offences must therefore be set aside.
[3]

[4]

Accordingly
    the convictions are quashed and a new trial ordered. Particularly in the light
    of the trial judge's comments concerning the resources already expended on this
    matter, the Crown will no doubt seriously consider whether it is advisable to
    pursue this matter any further.
Janet Simmons J.A.