COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Reid, 2016
    ONCA 944

DATE: 20161215

DOCKET: C59985

Epstein, Pepall
    and van Rensburg JJ.A.

BETWEEN

Her Majesty the
    Queen

Respondent

and

Troy Reid

Appellant

Andrew Stastny, for the
    appellant

Lucas Price, for the
    respondent

Heard: May 9, 2016

On appeal from the
    convictions entered by Justice Ramez Khawly of the Ontario Court of Justice on
    December 8, 2014.

Epstein J.A.:

A.

Overview

[1]

In the early hours of May 24, 2014, police officers entered a small
    apartment unit. There, they discovered the appellant, Troy Reid, with
    approximately 38 grams of crack cocaine. Mr. Reid was convicted of possession
    of cocaine for the purpose of trafficking and two counts of breach of
    recognizance, one based on his possession of drugs and the other based on his
    being in violation of his curfew.

[2]

At trial, Mr. Reid challenged the admissibility of the drugs, arguing
    that the evidence was discovered in breach of his rights under ss. 7, 8, 9,
    10(a) and 10(b) of the
Canadian Charter of Rights and Freedoms
.
[1]
The trial judge found no
Charter
breaches and went on to conclude that
    if he had found a
Charter
breach, he would not have excluded the
    evidence under s. 24(2) of the
Charter
. The trial judge convicted Mr.
    Reid of all three counts and sentenced him to 21.5 months in jail.

[3]

Mr. Reid appeals from conviction only. He submits that the trial judge
    erred in law by failing to find that: (i) he had standing to assert a claim
    under s. 8; (ii) his arrest and detention violated his rights under s. 9; (iii)
    his ss. 10(a) and 10(b) rights were violated; and (iv) the evidence obtained in
    connection with the breach of his
Charter
rights should be excluded
    under s. 24(2). He asks that all evidence flowing from the unlawful entry into
    the dwelling and his unlawful detention and arrest be excluded, and that
    acquittals be entered on all charges.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

Facts

[5]

Just before midnight on May 23, 2014, the police received a 911 call
    about an assault in progress. Sergeant Robin Dey arrived at the scene to find a
    distraught female who said her ex-boyfriend, Troy Reid, had assaulted her. The
    woman indicated to Sergeant Dey that Mr. Reid was inside a rooming house at 51
    Mutual Street, and that he was in possession of drugs and in breach of his
    curfew.

[6]

Sergeant Dey went to 51 Mutual Street to investigate. Officers
    Hinchcliffe and ODonnell arrived to assist. A man in the lobby of the building
    told them that there was a black man on the second floor dealing drugs and directed
    them to unit 202. The man in the lobby added that it was crazy up there, as people
    were coming in and out of the unit constantly.

[7]

The three police officers went to the second floor. There was
    conflicting evidence at trial as to what happened next, but the trial judge
    accepted Sergeant Deys testimony that he heard a woman inside the apartment, knocked
    on the door and requested that the door be opened. Sergeant Dey had a brief
    conversation with the woman, later identified as Catherine Coleman. She told
    Sergeant Dey that she needed time to get dressed. Sergeant Dey could hear
    people shuffling around inside the apartment. Ms. Coleman then attempted to
    open the door but it was jammed by fabric on the floor that had bunched up
    under the door. Sergeant Dey pushed on the door to help Ms. Coleman open it while
    she pulled it from inside the apartment.

[8]

Finally, the door was opened wide enough to enable Sergeant Dey to make
    his way into the apartment. While part way through the door, Sergeant Dey asked
    Ms. Coleman and a Caucasian man who was also in the apartment if they lived
    there. They answered that they did not live in the apartment and did not know
    who did. They also advised the police that no one else was in the unit.

[9]

Sergeant Dey testified that, at that point, he suspected that this was
    an apartment takeover situation and became concerned for the well-being for
    the true resident of apartment 202.
[2]

[10]

Sergeant Dey then noticed a closed door in the unit.  Based on safety
    concerns, he opened the door. Inside was a very small bathroom, with only
    enough room for a toilet. Mr. Reid was sitting on the toilet.  Sergeant Dey
    told Mr. Reid to stand up and pull up his pants. Sergeant Dey put his hand on
    the small of Mr. Reids back, effectively guiding him out of the bathroom. As
    Mr. Reid moved out of the bathroom, Sergeant Dey looked in the toilet and saw a
    cellophane bag in the water. The bag contained what was later determined to be approximately
    38 grams of crack cocaine.

[11]

Sergeant Dey told Officer Hinchcliffe to arrest Mr. Reid for possession
    of cocaine for the purposes of trafficking. Mr. Reid was arrested and read his
    rights to counsel.

C.

Reasons for Conviction

[12]

The trial judge, following the leading authority of
R. v. Edwards,
[1996] 1 S.C.R. 128, held that Mr. Reid had no reasonable expectation of
    privacy in Ms. Colemans apartment and therefore no standing to assert a s. 8
Charter
breach. The trial judge held that Ms. Coleman had tailored her evidence to
    create the impression that Mr. Reids connection to her apartment was greater
    than it actually was and that she lacked credibility. The trial judge noted a
    number of issues with Ms. Colemans evidence. For example, Ms. Coleman waffled
    in her evidence concerning Mr. Reids contribution to the rent. The trial judge
    also found that Ms. Colemans apartment was small and appeared to be set up for
    one person. He also noted that there was only one key to the unit. Moreover, Mr.
    Reid maintained other residences and his bail conditions included a requirement
    that he live with his surety, not with Ms. Coleman.

[13]

The trial judge further held that although Sergeant Dey, an experienced
    and senior police officer, should have obtained a warrant and searched police
    databases for information about Mr. Reid before he entered unit 202, there was
    no violation of Mr. Reids s. 9, 10(a) or 10(b)
Charter
rights arising
    out of his brief investigative detention when he was directed to exit the
    bathroom by Sergeant Dey. He held that any detention that occurred was for a
    mere instant in a fluid situation. Finally, the trial judge briefly considered
    s. 24(2). He indicated that he would not exclude the evidence in issue even if
    he had found a
Charter
breach.

D.

Analysis

(1)

The Section 8 Issue

[14]

Mr. Reid argues that the trial judge erred in his application of
Edwards
in failing

to look at the totality of
    the circumstances, including the factors set out in
Edwards.
Specifically, Mr. Reid argues that even after

rejecting
    Ms. Colemans testimony, the trial judge was required to apply the
Edwards
factors
    to make a determination on standing, including the accuseds: (i) presence at
    the time of the search; (ii) possession or control of the property or place
    searched; (iii) ownership of the property or place; (iv) historical use of the
    property; (v) ability to regulate access; (vi) subjective expectation of
    privacy; and (vii) objective reasonableness of the expectation. Mr. Reid further
    argues the trial judge erred in finding that his testimony was insufficient to
    establish standing without confirmatory evidence.

[15]

Mr. Reid points to the uncontroverted evidence that he and Ms. Coleman
    were in an intimate relationship and the fact that he was able to regulate
    access to the apartment. Even if the apartment was more Ms. Colemans than
    his, he still had a subjective and objective expectation of privacy in her
    apartment when he was in it, with the door locked.

[16]

Mr. Reid distinguishes his case from
Edwards
, where the Supreme
    Court, in concluding the accused had no standing, found that the accused could
    prove only one of the relevant factors. Unlike in
Edwards
, Mr. Reid
    was present in his partners dwelling at the time of the search and the police
    did not obtain Ms. Colemans consent to enter the dwelling.

[17]

The Crown argues that there was no palpable and overriding error in
    the trial judges factual findings. The trial judge acknowledged that
Edwards
was the governing precedent and a holistic reading of his reasons
    demonstrates that he applied the
Edwards
factors.

[18]

I see no reason to interfere with the trial judges conclusion that Mr.
    Reid lacked standing to advance an argument based on a breach of s. 8 of the
Charter
.
    Although the trial judge did not refer to the
Edwards
factors
    individually, counsel made extensive reference to
Edwards
throughout
    their submissions and the trial judge acknowledged the governing principles set
    out in
Edwards
in his analysis. It was open to the trial judge, based
    on his credibility findings, to conclude that Mr. Reids subjective expectation
    of privacy was not objectively reasonable. His evidentiary findings are
    entitled to deference: see
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621,
    at para. 10.

(2)

The Sections 9, 10(a) and 10(b) Issue

[19]

Mr. Reid argues that even if he has no standing to challenge the entry
    into the apartment, his arrest was unlawful because it occurred inside a
    dwelling without a
Feeney
warrant. Mr. Reid asserts that Sergeant Dey
    approached the apartment with the intention to find grounds to arrest and then
    search him for narcotics. Relying on
R. v. Adams
, [2001] O.J. No. 3240
    (C.A.), Mr. Reid argues that a
Feeney
warrant is required for an
    arrest in any dwelling, not merely the accuseds dwelling. Mr. Reid further
    submits that the fact that none of the individuals in the apartment claimed possession
    of the unit did not alter the unlawfulness of the police entry into the unit.

[20]

Mr. Reid contends that the investigative detention preceding his arrest
    was also illegal because it was tainted by the unlawful entry into the
    apartment by the police. This unlawful detention led to the discovery of the
    drugs in the bathroom.

[21]

Finally, Mr. Reid argues that the trial judge erred in concluding that
    because of the fluidity of the situation, his s. 10(a) and 10(b) rights were
    not engaged. Once the detention crystallized, the s. 10 requirements became
    immediate.

[22]

The Crown distinguishes the
Adams
case on the basis that Mr.
    Reid had no reasonable expectation of privacy in the apartment toilet where the
    drugs were located, unlike in
Adams
where the accuseds own s. 8
    rights were engaged when he was searched incident to arrest. Moreover, if some
    form of consent was required to enter the unit, the law of implied invitation
    recognized by this court in
R. v. Mulligan
, [2000] O.J. No. 59 (C.A.),
    satisfied such a requirement. Given the presence of what seemed like unlawful
    occupants, and given that Sergeant Dey was told drug dealing was taking place
    in the unit, it was in the interests of the property owner or lawful resident
    that the police be granted entry.

[23]

The Crown further argues that any investigative detention was either
    proportional to the concern the police had regarding the security of the unit or,
    at worst, was a
de minimis
violation of Mr. Reids liberty.

[24]

Finally, the Crown asserts that given the imminence of Mr. Reids arrest
    upon locating the drugs in the toilet, it was unnecessary and impractical to
    provide reasons for detention and rights to counsel prior to the arrest. The
    trial judge was correct in his conclusion that there was no breach of s. 10(a)
    or 10(b) arising from Mr. Reids detention before arrest.

[25]

In my view, the facts do not support Mr. Reids assertion that Sergeant
    Dey entered the unit to arrest him. Rather, and as the trial judge found,
    Sergeant Dey was investigating various possible criminal acts. As such, this
    case is distinguishable from those cases recognizing that a
Feeney
warrant
    is required where police enter a dwelling for purposes of arresting an
    occupant.

[26]

Because I would reject Mr. Reids starting premise that Sergeant Dey
    needed a
Feeney
warrant before entering the apartment, the balance of
    his argument that his detention and arrest were illegal because they flowed
    from the officers illegal entry into the apartment, cannot stand.

[27]

In any event, I accept the trial judges implicit finding, in preferring
    Sergeant Deys evidence over that of Ms. Colemans, that the officer entered
    the apartment on consent. Further, I see no reason to interfere with the trial
    judges finding that Sergeant Dey, on being informed by Ms. Coleman and the
    other occupant that neither was the owner of the unit, sought entry based on
    concerns for the safety and security of the true owner. It is implicit in the
    trial judges reasoning that this concern is what motivated Sergeant Dey to
    proceed in entering the unit.

[28]

Moreover, Sergeant Dey's direction to Mr. Reid to leave the bathroom while placing his hand on his back, in my view, did not amount to a detention. Not every interaction between a person and the police constitutes a detention within the meaning of the Charter, even where there is an investigation ongoing:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19. Mr. Reid may have been momentarily under the officer's control when Sergeant Dey guided him out of the bathroom, but Mr. Reid was not subject to the type of physical or psychological restraint that amounts to a detention within the meaning of the
Charter: R. v. Suberu
, 2009 SCC 33,  [2009] 2 S.C.R. 460, at para. 7.

[29]

But even if Sergeant Deys momentary direction to Mr. Reid before his
    arrest amounted to a detention within the meaning of the
Charter,
his
    detention was neither arbitrary nor unreasonable. In
Mann
, at paras.
    23-35, the Supreme Court recognized that individuals may be detained for
    investigative purposes if the police are acting in furtherance of their duties,
    which include the preservation of the peace, the prevention of crime and the
    protection of life and property and further, that the detention is justified
    based on a constellation of objectively discernible facts giving rise to the
    detaining officers suspicion that the suspect is criminally implicated in the
    activity under investigation:
Mann,
at para. 27.

[30]

Proactive community policing, while an effective approach to crime prevention in high-crime areas, must be carried out in a manner that does not diminish individual rights and freedoms:
Brown v. Durham Regional Police Force
(1988), 43 O.R. (3d) 223 (C.A.). When the police investigate and detain citizens, they must do so only when they believe, on reasonable grounds, that the detention is necessary, and the detention is not more intrusive to liberty than reasonably necessary to address risk:
R. v. Clayton
, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 21. This standard does not change depending on where one lives.

[31]

However, here, Sergeant Dey had reason to detain Mr. Reid. Sergeant Dey
    had information that Mr. Reid had committed an assault, was dealing drugs, and
    could be found at 51 Mutual Street. On arriving at the Mutual Street building,
    Sergeant Dey received additional information that a male matching Mr. Reids
    description was on the second floor dealing drugs out of unit 202. When
    Sergeant Dey arrived at unit 202 and received information from the occupants
    that neither was the rightful occupant of the unit, he became concerned for the
    rightful occupants well-being. In attempting to ascertain who was in the
    apartment, and for his own safety, he opened the door that turned out to be a
    bathroom, found a person (who turned out to be Mr. Reid) inside, and asked him
    to step out.

[32]

In my view, this was a reasonable request, given that Sergeant Dey had
    just been told that there was no one else in the apartment, his concerns about
    an apartment takeover, and his ongoing investigation into possible drug dealing
    and an assault. There was no violation of s. 9 of the
Charter.

[33]

Moreover, Mr. Reids actual detention only crystallized when Sergeant
    Reid saw the bag of drugs in the toilet, which coincided with his immediate
    arrest. He was given his rights to counsel under s. 10(a) and 10(b) of the
Charter
at that time. In the circumstances, as the trial judge noted, given the
    fluidity of the situation, it was impractical to provide rights to counsel
    prior to the arrest. There was no violation of s. 10(a) or 10(b) of the
Charter.

[34]

Finally, in my view, Sergeant Deys decision to look in the toilet and
    retrieve the drugs from the toilet bowl did not constitute a search of Mr.
    Reid. A search is only subject to constitutional review where the search
    intrudes on a reasonable expectation of privacy. As previously noted, Mr. Reid
    had no privacy interest in the apartment. Further, the drugs were found without
    any interference with Mr. Reids interest over his own personal privacy. He was
    not searched: the toilet was searched.

(3)     Exclusion of Evidence  Section 24(2) of the Charter

[35]

Having concluded that Mr. Reids rights under the
Charter
were
    not violated in this case, I find it unnecessary to analyze the admission of
    the evidence under s. 24(2) of the
Charter
.

E.

DISPOSITION

[36]

Based on this analysis, I would dismiss the appeal.

Released: December 15, 2016 (KMVR)

Gloria Epstein J.A.

I agree S.E. Pepall J.A.

I agree K.M. van Rensburg J.A.

[1]

While Mr. Reid argued that the evidence was discovered in
    breach of his rights under s. 7 of the
Charter

at trial, he did not appeal the trial judges disposition of this
    issue.

[2]

Apartment-takeovers occur where tenants are forcibly displaced
    from their homes. Often, the apartment is subsequently used to carry out
    illegal activity.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.J.K., 2016 ONCA 926

DATE: 20161208

DOCKET: C60147

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.J.K.

Appellant

John M. Rosen and Shannon McDunnough, for the appellant

Moiz Rahman, for the respondent

Heard: November 21, 2016

On appeal from the conviction entered on December 03,
    2014 by Justice G.W. Tranmer of the Superior Court of Justice, sitting without
    a jury.

By the Court:

[1]

After a five-day judge alone trial, the appellant was convicted of
    sexual assault, sexual interference and invitation to sexual touching involving
    A.B., his former common-law stepson, over a seven year period. He was also
    convicted of one count of assault involving his former common law spouse, S.B.,
    and one count of breach of recognizance. He appeals his convictions, with
    particular focus on the offences involving his former stepson, arguing that the
    trial judges analysis of the credibility and reliability of A.B.s evidence
    was flawed.

Facts

[2]

In June 2003 the appellant moved into a home with S.B. and her son A.B.,
    born in 2000, and S.B.s daughter. He formed a strong relationship with A.B.,
    who eventually grew to consider the appellant his father. The family resided at
    several residences over the next several years. The appellants son from a
    previous relationship moved into the household in 2007, and the appellant and S.B.
    had a child together, born in 2004.

[3]

In October 2012 the appellant moved out of the home he had shared with S.B.,
    A.B. and the other children, having started a relationship with another woman,
    the mother of a friend of A.B. A.B. was very upset over the appellants
    departure, as was S.B. Over the next several months A.B. sent the appellant
    several angry text messages, expressing his anger at the appellant for having
    abandoned the family. S.B. posted Facebook messages expressing her anger at the
    appellant.

[4]

On June 3, 2013 S.B. reported to the police that the appellant had spat
    on her and punched her repeatedly in the head when he had come to her house
    earlier that day to pick up the children. The appellant was arrested and
    charged with assault. On June 12, 2013 S.B. reported to a Childrens Aid Society
    worker that A.B. had alleged earlier that day that the appellant had sexually
    abused him. This was the first time A.B. had made such allegations.

[5]

On June 26, 2013 A.B. gave a video-taped statement to the police
    alleging acts of sexual touching, as well as oral and anal sex. The appellant
    was charged with the offences involving the alleged sexual abuse of A.B. on
    July 2, 2013.

Trial

[6]

A.B.s police statement was admitted into evidence pursuant to s.715.1
    of the
Criminal Code.
A.B. testified and adopted his statement. However,
    in A.B.s trial evidence, the allegations of sexual abuse were more detailed
    and more extensive than the allegations he had made in his police statement or
    at the preliminary inquiry. At trial, A.B. testified that from the age of six,
    he was sexually abused by the appellant hundreds of times at multiple residences
    over a span of seven years. The acts of alleged abuse included sexual touching,
    oral and anal sex performed on A.B. and, at the appellants direction,
    performed by A.B. on the appellant.

[7]

The appellant did not testify at trial, nor did he call any witnesses.
    Defence counsel submitted that reasonable doubt was apparent in the
    inconsistencies in A.B.s testimony, the implausibility of the story told by A.B.,
    the clear and demonstrated animus of the complainants towards the appellant,
    and their motive to fabricate.

[8]

The trial judge gave relatively lengthy oral reasons for convicting the
    appellant. No issue is taken with the trial judges statement of the applicable
    legal principles, including the presumption of innocence, reasonable doubt and
    the analysis from
R. v. W.(D.)
, [1991] 1 S.C.R 742. The trial judge
    also considered
R. v. MG
(1994), 93 C.C.C (3d) 347 (Ont. CA), the case
    principally relied upon by the appellant, and provided an error-free analysis
    of how to assess and weigh inconsistencies in the evidence of a witness.

[9]

In his reasons, the trial judge addressed several inconsistencies
    apparent in A.B.s testimony. He also recognized that the factor of a
    motivation to fabricate was present, and noted that the defence was arguing
    both collusion and that the allegations made by A.B. were not plausible.
    However, the trial judge concluded that the defence submissions on these points
    were not sufficient to raise a reasonable doubt about whether the alleged
    sexual abuse had taken place. He found that A.B. was a credible and reliable
    witness in regard to the core of the allegations he had made, and accepted that
    the Crown had proven beyond a reasonable doubt the truth of the allegations.

Issues

[10]

The
    appellant raises the following issues on appeal:

1.

Did the trial
    judge fail to consider material inconsistencies in A.B.s evidence?

2.

Did the trial judge fail to properly analyze the
    motive of A.B. and S.B. to fabricate the allegations?

3.

Did the trial
    judge fail to properly analyze the possibility of collusion between the
    complainants?

4.

Did the trial
    judge fail to address the issue of the implausibility of A.B.s allegations?

5.

Did the trial
    judge over-emphasize A.B.s ability to recall extraneous details?

6.

Did the trial
    judge shift the burden of proof to the defence to prove the allegations did not
    occur?

Analysis

1. Did the trial judge fail to consider material
    inconsistencies in A.B.s evidence?

[11]

This
    case plainly turned upon the credibility and reliability of A.B.s evidence. We
    need not belabour the obvious: credibility is a matter for the trial judge
    whose findings attract deference in this court absent an error in principle or
    a material misapprehension of evidence:
R v. W.(R.),
[1992] 2 S.C.R.
    122, at para. 21.

[12]

There
    is no doubt that by the time of trial, A.B.s allegations were more detailed,
    elaborate, and extensive than those he gave in his initial police statement and
    at the preliminary inquiry. On appeal, counsel points to a number of
    inconsistencies and argues that the trial judges failure to specifically
    address all of them taints his finding that A.B. was a reliable and credible
    witness.

[13]

We
    do not accept that submission for the following reasons.

[14]

First,
    the trial judges reasons demonstrate that he did consider the inconsistencies
    between A.B.s police statement and his in-court testimony, and he explained
    why he did not consider those inconsistencies to be fatal to A.B.s credibility
    and reliability. When asked in cross-examination why he had not given the
    police all the details in his video statement, A.B. replied: I was embarrassed
    andIt was gross. I didnt want to tell somebody I didnt know stuff that
    happened to me. I barely even wanted to tell my mother. The trial judge viewed
    the video recording of A.B.s police statement, and observed that when giving
    his statement to the police, A.B. was shy, and afraid and demonstrated a lack
    of understanding and sophistication. By the time of trial, the complainant was
    a teenager and more at ease in explaining what had happened.

[15]

Second,
    we agree with the respondent that the trial judges reasons were essentially
    responsive to the submissions made by the appellants trial counsel. Trial
    counsel placed particular emphasis on the fact that A.B. could not recall the
    details of the first incident of abuse when he gave his police statement. The
    trial judge dealt with that argument, and with the others made by trial
    counsel. Many, if not most, of the inconsistencies now raised on appeal were
    not mentioned by trial counsel. In our view, it is entirely understandable why
    the trial judge focused on the inconsistencies alleged by trial counsel and did
    not find it necessary to address in his reasons other apparent inconsistencies.

[16]

We
    are satisfied that when the trial judges reasons are read in the context of
    the submissions he heard, they reveal that the trial judge gave adequate
    consideration to the essential point, namely, whether there was an explanation
    for the manner in which A.B.s allegations changed from the time he gave his
    police statement until he testified at trial. The trial judge concluded there
    was such an explanation, namely, A.B.s age, shyness and immaturity at the time
    he gave his police statement.

2. Did
    the trial judge fail to properly analyze the motive of A.B. and S.B. to
    fabricate the allegations?

[17]

The
    appellant submits that the trial judge failed to pay adequate attention to the
    evidence of A.B. being upset and disappointed when the appellant moved out of
    the family residence, evidence the appellant contends revealed A.B. had a
    motive to fabricate.

[18]

We
    do not agree with that submission. The trial judge specifically referred to the
    evidence which clearly demonstrate [A.B.s] anger and upset at what he
    perceived to be the accused abandoning him and his family in favour of his
    friend and his friends mother. The trial judge also specifically noted that
    the complainants mother had demonstrated considerable anger and upset and had
    expressed a desire for revenge against the appellant. The trial judge stated I
    take this into consideration in my overall assessment of the credibility and
    reliability of their evidence. However, having taken the evidence of motive to
    fabricate into account, the trial judge concluded that he found A.B.s evidence
    to be nonetheless credible and reliable.

[19]

In
    our view, the trial judge was entitled to make his own assessment of the
    significance to be attached to the motive to fabricate which he fully
    recognized and, in the absence of any material misapprehension of the evidence
    on the point, we fail to see how this Court could interfere with his findings.

3. Did
    the trial judge fail to properly analyze the possibility of collusion between
    the complainants?

[20]

The
    trial judge specifically addressed the possibility of collusion between A.B.
    and S.B., and provided adequate reason for concluding that there had been no
    collusion. In particular, the trial judge observed that while the complainant
    and his mother had the opportunity to collude, S.B. gave no evidence to
    corroborate A.B.s allegations of abuse. To the contrary, she testified that
    the accused had been a good father to the children, and that she had no reason
    to suspect any misconduct.

[21]

We
    see no merit in this ground of appeal.

4. Did
    the trial judge fail to address the issue of the implausibility of A.B.s
    allegations?

[22]

On
    appeal the appellant places considerable emphasis on what he alleges to be the
    implausibility of A.B.s allegations. He submits that it is improbable that the
    appellant could have committed these offences without anyone in the household
    noticing; that it is improbable that a child between six and 12 years old would
    not have suffered physical injury from having been repeatedly penetrated anally;
    and that despite his allegations of anal sex, A.B. never mentioned the presence
    of feces.

[23]

The
    appellant contends that the following passage from the reasons reveals that the
    trial judge erred by improperly putting the claim of implausibility to one
    side. The trial judge listed several points which the defence said pointed to
    implausibility, namely, that: lubricant was not used; there was no evidence of
    grooming; there was no evidence of physical injury; a six-year-old would be
    unable to have anal sex on the appellant, and; the lack of mention of feces.
    The trial judge then stated:

The accused is required to prove nothing whatsoever in this
    case, but neither are any of these four points essential elements of the offences
    charged upon which the Crown has the onus of proving beyond a reasonable doubt.
    I do not consider that these four points bear on my assessment of the
    credibility and reliability of the complainants evidence.

[24]

The
    appellant submits that this passage reveals that the trial judge failed to
    consider the defence implausibility argument simply because it rested on points
    that were not essential elements of the offence the Crown was required to
    prove.

[25]

We
    disagree. We are satisfied that when read in the light of the entire record and
    submissions that were made to the trial judge, the passage reveals no such
    error. The trial judge recognized that when assessing the plausibility of A.B.s
    allegations, he had to take into account the fact that he was faced with the
    difficult task of assessing the evidence of a child regarding acts with which
    no child would be familiar. While A.B. testified that the appellant performed
    anal sex on him and that he had performed anal sex on the appellant, neither
    the Crown nor defence questioned A.B. as to the degree of penetration that
    either he or the appellant were able to achieve. As Crown counsel pointed out
    in his submissions, what a young child perceived to be penetration could well
    be something well short of full penetration. Crown counsel also pointed out
    that neither party called evidence on the likelihood of physical injury or of
    the presence of feces. The trial judge made it clear during argument that the
    defence had no burden. However, in the absence of some evidence on the point,
    he was not prepared to draw any conclusions from A.B.s failure to mention
    anything about feces or injuries.

[26]

In
    our view, the trial judge was entitled to refuse to draw the negative
    inferences advanced by the defence that were reasonably based on the evidence
    that had been led.

[27]

When
    fairly read in the overall context of this case, the passage indicates nothing
    more than that the trial judge regarded aspects of the appellants
    implausibility argument as speculative and unsupported by the record. We are
    not persuaded that this isolated passage in the trial judges lengthy oral
    reasons for judgment that fully canvassed the evidence demonstrates that the
    trial judge failed to give adequate consideration to the defence argument of
    implausibility.

5. Did
    the trial judge over emphasize A.B.s ability to recall extraneous details?

[28]

The
    trial judge did refer to A.B.s ability to recall certain details as to time,
    place and circumstances, but we do not agree that he erred in this regard. This
    was only one factor in his credibility assessment, and at trial defence counsel
    attacked alleged inconsistencies in A.B.s evidence regarding surrounding
    details. The trial judge did not err in responding to those submissions.

6. Did
    the trial judge shift the burden of proof to the defence to prove the
    allegations did not occur?

[29]

We
    do not agree that the trial judge shifted the burden of proof to the defence.
    The passage relied upon by the appellant to support this contention corresponds
    with the second step of the
W.(D.)
analysis. It was preceded by a
    proper explanation of
W.(D.),
and immediately followed by a clear
    statement that the trial judge found that the Crown had proved beyond a
    reasonable doubt that the alleged incidents of repeated sexual abuse described
    by the complainant did occur.

Disposition

[30]

For
    these reasons, the appeal is dismissed.

Released: December 8, 2016

Robert J. Sharpe
    J.A.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Squire-Hill, 2016 ONCA 995

DATE: 20161229

DOCKET: C60337

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Grant Squire-Hill

Appellant

Erin Dann and Graeme A. Hamilton, for the appellant

David Friesen, for the respondent

Heard: December 22, 2016

On appeal from the conviction entered on September 5,
    2014 by Justice James R.H. Turnbull of the Superior Court of Justice, sitting
    without a jury.

APPEAL BOOK ENDORSEMENT

[1]

At about 9 PM on the night of December 3, 2012, a pickup truck collided
    with an ATV and a dirt bike in a rural area.  The rider of the dirt bike and
    one of the occupants of the ATV were killed, and the other occupant of the ATV
    was seriously injured.

[2]

After a judge alone trial, the appellant was convicted of dangerous
    driving causing death, dangerous driving causing bodily harm, and failure to
    remain at the scene of the accident.  He was sentenced to 8 years
    imprisonment.

[3]

There was no direct evidence he was the driver.

[4]

On appeal, he argues the trial judge misapprehended pieces of evidence
    that were material in his assessment of the circumstantial evidence of
    identification.  He also argues the verdict is unreasonable.

[5]

We accept neither argument.  The trial judge may not have recounted the
    testimony of the witness Ms. Hill with precise accuracy but her evidence, taken
    as a whole, supports the judges assessment of it.  She testified the person
    she saw, who roughly matched the appellants height and build, was coming from
    the vicinity of the truck.  We are not persuaded there are any other
    misapprehensions material or otherwise.

[6]

The appellant recognizes the standard for establishing the verdict is
    unreasonable is formidable.  The appellant seeks to have us reassess the
    evidence and the effectiveness of the cross-examination of the Crowns
    witnesses, and even to consider technical arguments about the reconstruction
    evidence that were not put to the experts at trial.

[7]

We are satisfied a properly instructed jury could have been satisfied of
    the appellants guilt beyond a reasonable doubt upon considering the cumulative
    effect of the totality of the evidence.

[8]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tweedle, 2016 ONCA 983

DATE: 20161229

DOCKET: C59865

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Tweedle

Appellant

Jennifer Trehearne and Kimberly Lederri, for the
    appellant

Michael Fawcett, for the respondent

Heard: December 8, 2016

On appeal from the conviction entered on July 3, 2014 and
    the sentence imposed on December 12, 2014 by Justice Mary Teresa E. Devlin of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions for possession of child
    pornography and making child pornography available. He also seeks to appeal his
    sentence of 20 months imprisonment.

[2]

The appellant was arrested after an undercover agent identified online
    activities suggesting that the appellant was sharing child pornography on a
    peer-to-peer software program. The police executed a search warrant on the
    appellants home and seized two laptops, a Samsung and a Toshiba, and two
    external hard drives. They were forensically examined and disclosed 29 videos
    and 431 pictures of child pornography as well as chat logs from a Yahoo
    account, in which someone whose username was sometimes listed as Ian T discussed
    his strong interest in child pornography and abusing children.

[3]

The only issue at trial was whether the images of child pornography were
    on the appellants devices with his knowledge and control. The appellant
    testified that he had downloaded and shared with others thousands of files of
    adult pornography. He had also created a file into which others could transfer pornography
    remotely, enabling the sender to choose the pornography he would receive. The
    appellant denied being interested in or knowingly downloading or receiving
    child pornography. He claimed that he had received child pornography from
    others but as soon as he realized what it was, he deleted it and blocked the
    sender. He described in detail four occasions when this had happened. The appellant
    also denied participating in the chat log conversation. Although his email address
    was similar, he denied having a Yahoo account.

[4]

The trial judge accepted the appellants evidence that on approximately
    four occasions he received child pornography that he had deleted, and that he
    took steps to block the suspected sources of the materials. Indeed, the
    forensic analysis supported that most of the child pornography on one laptop
    and its external hard drive had been deleted.

[5]

The trial judge, however, did not accept that the appellant had received
    child pornography on only four occasions. Based on the forensic analysis, a
    considerable amount of child pornography remained and had not been deleted, in
    particular on the external hard drive for the Samsung laptop. The trial judge
    rejected the appellants evidence that he never had a Yahoo account. This
    conclusion was based on the location of the chats and their subject matter,  which
    was consistent with the type of chats the appellant admitted he engaged in. In
    any event, irrespective of who owned the Yahoo account, its contents (which
    included child pornography) were meticulously organized on the appellants
    computer.

[6]

The trial judge rejected the defence of innocent possession, namely that
    the appellant intended to delete any child pornography that had ended up on his
    devices without his knowledge. She referred to the substantial quantity of
    child pornography located in three separate places, the sophisticated
    organization of the material, the explicit names of the files, which would have
    alerted the appellant to their contents even if he did not view the files, and
    the fact that most if not all the child pornography on the appellants Samsung
    computer and external hard drive had not been deleted.

[7]

The trial judge also concluded that the offence of distributing child
    pornography was made out. The appellant purchased and used a file sharing
    program, GigaTribe, that required users to determine what material is shared.
    He knew he was storing child pornography on his computer and there was no
    evidence he took steps to block the sharing of files containing child
    pornography.

[8]

There are three grounds on the conviction appeal.

[9]

First, the appellant says that the trial judge failed to apply the
    second branch of the test in
R. v.
W.(D.), [1991] 1 S.C.R. 742.
In particular, the appellant says that the trial judge, having accepted that
    the appellant had deleted child pornography and took steps to block the sender
    on four occasions, did not assess whether such evidence raised a reasonable
    doubt about the appellants knowledge of the child pornography found on his
    devices.

[10]

We do not give effect to this argument. The trial judge was alive to
    and recited the
W.(D.)
test in her reasons. She correctly stated that
    she was to consider the appellants evidence in the context of the evidence as
    a whole, and that she could accept some, none or all of a witnesss evidence. While
    she accepted the appellants evidence that he had taken steps on four occasions
    to delete some child pornography from his devices (which was supported by the
    forensic analysis that revealed that most of the child pornography on the
    Toshiba laptop and its external hard drive had been deleted), she did not
    accept the inference the appellant wanted her to draw, which was that the
    deletion of child pornography on four occasions meant that any child
    pornography remaining on his devices was there without his knowledge. There is
    no indication that the trial judge failed to consider whether such evidence
    raised a reasonable doubt. There was compelling evidence to support the trial
    judges conclusion regarding the appellants knowledge, including the significant
    volume of child pornography that remained on the appellants devices, his statement
    to the police that they would find child pornography on his computers when they
    were examined, and the careful indexing and organization of the child
    pornography collection on the devices.

[11]

Second, the appellant says that the trial judge misapprehended the
    evidence on two key points: first, when she said that most, if not all of the
    child pornography on the new external hard drive had not been deleted (when the
    evidence was simply that it was accessible), and second when she stated that
    the appellants evidence was that he had received child pornography on only
    four occasions. The appellant says that these were material misapprehensions
    that deprived him of a fair trial or, alternatively, constituted a miscarriage
    of justice. The appellant also says that the trial judge failed to consider
    certain evidence, including that the child pornography was found among hundreds
    of thousands of other files and the lack of evidence regarding whether the
    files containing child pornography had been accessed despite it being
    forensically possible for the Crown to prove this fact.

[12]

We disagree.

[13]

The trial judges conclusion that the majority of the images found on
    the Samsung device had not been deleted was consistent with the evidence that the
    majority of the images were accessible. The evidence distinguished between
    files that remained accessible and those that were only recoverable through
    forensic analysis. While the trial judge did not specifically acknowledge the
    forensic evidence that accessible files could include files that were in the
    recycle bin, the evidence was that the appellant understood the distinction and
    that moving files to the recycle bin did not in fact delete them.

[14]

The trial judge stated that she rejected the appellants evidence that
    he only obtained isolated images of child pornography and one video on the four
    occasions he had described (when he immediately deleted the images). We do not
    agree that this reflects a misunderstanding of the appellants evidence and
    defence, which was that he unknowingly received other images of child
    pornography that he had not yet discovered and deleted. She carefully
    considered the evidence, focusing on the appellants defence of innocent
    possession. In this regard, the evidence of the appellants careful indexing and
    organization of the materials on his hard drives was inconsistent with innocent
    possession.

[15]

We do not agree that the trial judge overlooked material evidence. In
    particular, she was aware that the child pornography represented a small
    percentage of the significant volume of pornography on the appellants devices.
    The fact that she refused to draw the inference the appellant sought to be
    drawn, that his real interest was in adult pornography and that the child
    pornography was there without his knowledge, does not mean that she ignored
    this evidence.

[16]

Third, the appellant argues that the reasons for judgment were
    insufficient. The focus, however, is on the specific points previously addressed
     that the trial judge failed to explain why the alleged contradiction between her
    acceptance of the appellant having deleted child pornography on certain
    occasions and her subsequent finding that the appellant knowingly possessed
    child pornography did not leave her with a reasonable doubt, and why she did
    not have a reasonable doubt based on the forensic evidence (or lack thereof).

[17]

We disagree. The reasons for judgment clearly explained why the
    appellant was found guilty and convicted of the offence charged. This was an
    overwhelming case for the Crown. In dismissing the appellants innocent
    possession defence, the trial judge clearly explained her reliance on the
    sophisticated organization of the material, the explicit names of the files,
    and the fact that most of the child pornography had not been deleted. She also referred
    to the fact that the contents of the Yahoo account, which included child
    pornography, were stored and meticulously organized on the appellants
    computer, whether or not the Yahoo account belonged to him.

[18]

The conviction appeal is accordingly dismissed.

[19]

The appellant raises two arguments on his sentence appeal. First, he
    says that the trial judge erred in finding that the amount of child pornography
    was an aggravating factor when she failed to distinguish between the number of
    unique items of child pornography on the appellants devices (137 images and 22
    videos) versus the total amount of child pornography (29 videos and 431 images)
    that includes duplicates appearing on more than one device. Second, the
    appellant says that the trial judge erred in characterizing the fact that the
    pornography was distributed on multiple occasions to multiple users as an
    extremely aggravating factor in the absence of specific evidence as to the
    number of times the appellant had shared child pornography with others.

[20]

While we grant leave to appeal sentence, we dismiss the sentence appeal.

[21]

There was no error in the trial judges approach to sentencing in this
    case. The appellants counsel at trial did not distinguish between the number
    of images on the appellants devices that were unique and how many were copies,
    and how that might reflect on the appellants culpability. Whether the
    appellants collection consisted of unique or duplicate images, it was
    substantial and contained horrific images of abuse of children of all ages. Further,
    while there was no specific evidence as to the number of occasions on which the
    appellant shared child pornography files, the conclusion that he had
    distributed child pornography on multiple occasions to multiple users was
    apparent from his participation in a file sharing program, with no evidence that
    he had blocked the sharing of files containing child pornography.

[22]

The mandatory minimum sentence for this offence was one year
    imprisonment. The reformatory sentence here of 20 months was well within the
    appropriate range, took into account the relevant mitigating and aggravating
    factors, and was not demonstrably unfit.

Janet
    Simmons J.A.

K.
    van Rensburg J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2016 ONCA 937

DATE: 20161213

DOCKET: C61372

Pardu, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kentrell Williams

Appellant

Kentrell Williams, in person

Jill Presser, duty counsel

Mabel Lai, for the respondent

Heard: December 8, 2016

On appeal from the conviction entered on August 5, 2015 and
    the sentence imposed on November 26, 2015 by Justice D. Gray of the Superior
    Court of Justice, without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was convicted of aggravated assault, firearm offences and
    attempt to obstruct justice. He received a global sentence of 8 years
    imprisonment: 5 ½ concurrent for the assault and firearms; 2 ½ years
    consecutive for the obstruction of justice.

[2]

He appeals his convictions of obstruction of justice and the 2 ½ year
    consecutive sentence imposed.

[3]

The appellant entered a hotel room where his girlfriend, a sex worker,
    was in an apparent dispute with a customer. An altercation occurred, a gun was
    discharged and the appellant was charged with attempted murder.

[4]

A key issue at trial was who had the gun: the appellant or the customer.

[5]

During the preliminary inquiry, the appellant passed a note to his
    girlfriend  then a co-accused. In it, he asked her to say the gun was the
    customers. The note said she should read it in private and destroy it. She
    gave it to her lawyer. These facts are not in dispute.

Conviction appeal

[6]

The appellant submits on his own behalf that he did not know that his
    girlfriend was going to testify therefore the requisite intent was not
    established and the conviction should be set aside.

[7]

We do not accept this submission.

[8]

The trial judge considered all the circumstances of the note-passing
    including the fact that it was in court, during the preliminary inquiry. It was
    open to him to infer that the appellant had the requisite intent and he made
    that finding of fact. There is no basis for appellate intervention.

Sentence

[9]

With the assistance of duty counsel, the appellant submits that the
    trial judge erred in principle when he imposed a 2 ½ year sentence.

[10]

First,
    she submits it was excessive, harsh and outside the appropriate range.

[11]

Second,
    she submits that the sentencing reasons reflect that the trial judge double-counted
    the length of the sentence.

[12]

We
    conclude that the sentence, while substantial was not unfit. The maximum
    sentence is 10 years. We see no error in principle.

[13]

The
    trial judge correctly noted that obstruction of justice goes to the very heart
    and foundation of our criminal justice system.

[14]

The
    appellant, through duty counsel also submits that the sentencing judge
    double-counted. His reasons indicate that he considered the conduct of each
    offence to be an aggravating factor in the other offences.

[15]

In
    our view, the impugned sections of the reasons reflect nothing more than  in
    the trial judges view  all the facts overlap and must be taken together. We
    do not accept that he double-counted. It was open to him to consider the
    seriousness of the offence which underlay the attempt to obstruct.

[16]

Lastly,
    the appellant submitted on his own behalf that it was unfair that he received 2
    ½ years when he thought the Crown was only asking for 1 year in the context of
    a 2 year maximum. In fact, the Crown was incorrect. As pointed out by the trial
    judge, the maximum sentence is 10 years.

[17]

The
    appellant submits that had he known he might get 2 ½ years he may have taken a
    different course of action  especially with a 10-year maximum.

[18]

We
    see no unfairness here given that the Crowns request for 1 year on the
    obstruct charge was in the context of a submission for a 10 year global
    sentence.

[19]

For
    these reasons, the appeal as to conviction is dismissed.

[20]

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


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zvolensky, 2016 ONCA 947

DATE: 20161215

DOCKET: M47305 (C56042, C56152 & C56503)

Sharpe, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Zvolensky, Nashat Qahwash and Ronald Cyr

Appellants

Anil K. Kapoor, for the appellants

Jocelyn Speyer and Alison Wheeler, for the respondent

Heard: In writing

On motion (in writing) to permit appellants to raise issues on
    appeal not raised at trial.

By the Court:

[1]

In accordance with the direction of the appeal management judge in an
    endorsement on November 23, 2016, we have received and considered the parties
    written submissions on two issues that the appellants seek to raise as grounds
    of appeal. The issues relate to the eligibility of a former auxiliary police
    officer to serve as a juror at the appellants trial.

[2]

The appellants did not discover that one of the jurors at their trial
    had been an auxiliary police officer until well after the jury had rendered its
    verdict finding all three appellants guilty of first degree murder. The
    circumstances in which the appellants became aware of this issue are not
    material to our disposition of it.

[3]

If permitted, the appellants propose to argue:

i.

that the juror, as a person engaged in the enforcement of law, was
    ineligible to serve as a juror because of the provisions s. 3(1)6 of the
Juries
    Act
, R.S.O. 1990, c.  J.3 (the statutory interpretation argument); and

ii.

that if the statutory interpretation argument fails, s. 3(1)6 should be
    interpreted in compliance with ss. 7, 11(d) and 11(f) of the
Charter
so that the ineligibility provision applies to both current and former persons engaged
    in the enforcement of law (the
Charter
argument).

[4]

The respondent acknowledges that the appellants should be permitted to
    argue that the affected jurors former role as an auxiliary police officer
    created a reasonable apprehension of bias in relation to that juror. The
    respondent offers no serious objection to the appellants advancing their
    statutory interpretation argument, but resists their pursuit of the proposed
Charter
argument.

[5]

We recognize, as do the parties, a general injunction against appellate
    consideration of issues not advanced at trial, especially where the objection
    first advanced on appeal challenges the jurisdiction of the court constituted
    to try the appellants. We also acknowledge that this general injunction is not
    unyielding, rather admits of a discretion to consider on appeal an issue not
    raised at trial if it is in the interests of justice to do so.

[6]

In reaching our conclusion, we have considered all the circumstances,
    including but not only:

i.

the state of the trial and proposed appellate record;

ii.

fairness to the parties;

iii.

the importance of having the proposed issues resolved by the court;

iv.

the suitability of those issues for decision; and

v.

the broader interests of the administration of justice.

See,
R. v. Wookey
, 2016 ONCA 611, at paras.
    56-57.

[7]

In order to assist the parties in the final preparation of their
    materials for the hearing of the appeal, which is to commence on January 23,
    2017, we have concluded that the appellants may advance what we have termed the
    statutory interpretation argument, but may not advance what we have described
    as the
Charter
argument. In our reasons for judgment on the appeal, we
    will explain why we have reached this conclusion on the issue with which we are
    concerned here.

Released: December 15, 2016 (RJS)

Robert J. Sharpe J.A.

David Watt J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Salehi v. Tawoosi, 2016 ONCA 986

DATE: 20161229

DOCKET: C61732

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Faranak Salehi

Applicant (Appellant)

and

Farzad Tawoosi

Respondent (Respondent)

Ryan M. Kniznik, for the appellant

Elena E. Mazinani, for the respondent

Heard: December 15, 2016

On appeal from the order of Justice Frederick L. Myers of
    the Superior Court of Justice, dated January 22, 2016, with reasons reported at
    2016 ONSC 540.

By the Court:

[1]

The parties in this family law appeal were married on December 10, 2001,
    in Iran.  They separated on June 5, 2013, and were divorced in 2015.  They have
    one child. On consent, the appellant mother has custody of the child.

[2]

Prior to the marriage, the families of the parties met in Iran and
    negotiated a marriage contract.  Under the terms of that contract, the
    respondent husbands family was to convey, among other things, 500 square
    metres of rural land in Iran (the Mobarakeh lands) to the appellant.

[3]

In this appeal, the appellant seeks to have this court redetermine matters
    that relate to equalization of the parties respective net family properties,
    under the
Family Law Act
, R.S.O. 1990, c. F.3 (the
FLA
).  A
    key issue in the appeal is whether the trial judge erred in the value that he
    attributed to the appellants interest in the Mobarakeh lands.

[4]

Shortly before the oral hearing of this appeal on December 6, 2016, the
    appellant brought two motions.  In the first motion, the appellant asked the
    court to preclude the respondent from making responding submissions on appeal
    because of a failure to pay costs of $6,500, owing as a result of orders of
    this court made on November 15, and 16, 2016 (the Costs Orders).  In the
    second motion, the appellant asked that she be permitted to adduce fresh
    evidence on appeal which she says, among other things, shows that she does not
    own the Mobarakeh lands.

[5]

On December 9, 2016, in response, the respondent filed his own motion to
    adduce fresh evidence.  His motion materials call into question the reliability
    of the appellants fresh evidence relating to the Mobarakeh lands.

[6]

After hearing oral argument on the three motions, the court dismissed
    them all and indicated that reasons would follow.  Those reasons are set out
    now.  Thereafter, we will address the issues raised on the substantive appeal
    and explain why we order that it be dismissed.

THE PRELIMINARY MOTIONS

(1)

The Appellants Motion to Preclude Responding Submissions

[7]

The appellants request that this court preclude responding submissions
    is based on the respondent having purportedly breached the Costs Orders.  The
    Costs Orders were made in the following circumstances.

[8]

In October 2016, each party brought a motion in this appeal to this
    court.  Doherty J.A. heard the two motions on November 15, 2016.  He disposed
    of them in two endorsements, dated November 15 and 16, 2016, respectively.  In
    those endorsements, among other things, Doherty J.A. made the Costs Orders
    which required the respondent to pay costs totalling $6,500.

[9]

Doherty J.A. did not establish a deadline for payment of the Costs Orders.
    Therefore, the respondent had 30 days within which to pay them.  That means
    that the deadlines for paying the Costs Orders were: (1) December 15, 2016, for
    the first costs order; and (2) December 16, 2016, for the second costs order.

[10]

Accordingly, when the appellant filed this motion on December 6, 2016, the
    deadline for payment of the Costs Orders had not been reached, the respondent
    was not in breach of those orders, and there was no basis for the motion to
    have been brought.

[11]

We would go further, however, and strongly suggest that even if there
    had been a breach of the Costs Orders, the motion ought not to have been brought.
    We say this for three reasons.

[12]

First, we point to the timing of the motion.  Absent compelling evidence
    of wilful disregard of court orders, it is seldom helpful to bring such a motion
    shortly before the oral hearing of the appeal.  This type of motion deflects
    the parties attention from the real matters in issue on the appeal, tends to
    unduly inflame emotions at a time when they are typically already running high,
    and unnecessarily drives up the costs of the litigation.

[13]

We appreciate that the motion in this case was brought to the panel
    hearing the appeal. Because that is not always the case, we wish to take this
    opportunity to make it clear that if a party brings such a motion to this court
    within three weeks of the hearing of the appeal, the judge hearing the motion
    in chambers must be told of the date on which the appeal is to be heard.  Parties
    should expect that in such a situation, the motion may very well be adjourned to
    the panel hearing the appeal.

[14]

Second, and in any event, the alleged misconduct in this case does not come
    close to the level that would justify precluding the hearing of responding
    submissions.

[15]

The appellant relies
on the
    dissenting judgment of Laskin J.A. in
Dickie v. Dickie
(2006), 78 O.R. (3d) 1 (C.A.), at para.
    87, affirmed by the Supreme Court of Canada: [2007] 1 S.C.R. 346, 2007 SCC 8,
    at para. 6.
Dickie
establishes that the court has a discretion to
    refuse to hear a litigant who has wilfully breached a court order, until the
    litigant has cured the breach.  Absent evidence of a wilful and ongoing disregard
    for the courts process, such a motion must fail.  In this case, there was no
    breach at the time the motion was brought.  Furthermore, even if there had
    been, it would not have been ongoing in any meaningful sense of the word, as
    it would have lasted for perhaps a day or two.

[16]

Murphy v. Murphy
, 2015 ONCA 69, 56 R.F.L. (7th) 257, which the
    appellant also seeks to rely on, does not assist the appellant.
Murphy
underscores
    the high hurdle the moving party must meet in order to succeed on such a motion.
    In
Murphy
, on the day that the appeal was heard, the respondent was in
    breach of court orders that required him to: (a) pay costs; (b) disclose his
    income tax returns; and (c) pay outstanding child support.  This court found
    that
to hear the respondent's
    submissions would be to reward his deliberate and wilful misconduct (at para.
    6).

[17]

That is not this case.  The
    misconduct in
Murphy
was wilful and ongoing.  As we have already noted, in this case, even if there
    had been non-compliance with the Costs Orders, it would have been a matter of
    days at most.  That cannot be seen to reach the level of a wilful and ongoing
    disregard for the courts process such that the court would refuse to hear his
    responding submissions on the appeal.

[18]

Third, there is the issue of
    proportionality.  This motion related to an alleged failure to pay the Costs
    Orders, which totalled $6,500.  Given the costs associated with the bringing of
    the motion and the overall sums involved on appeal, proportionality
    considerations suggest that the motion was not warranted.

[19]

Having said that, these
    reasons should not be taken as accepting of the non-payment of costs orders
    made close to the time an appeal is heard.  Costs orders are made by the court
    with the full expectation that they will be paid in a timely fashion.

[20]

Accordingly, this motion is
    dismissed with costs to the respondent.

(2)

The Parties Motions to Adduce Fresh Evidence

[21]

We begin this part of our reasons by underlining that they do not apply
    to fresh evidence motions brought in family law appeals in which there are
    issues involving children.  In order for the court to discharge its obligation
    to consider the best interests of the children, the rules governing the
    admission of fresh evidence in such appeals are relaxed.

[22]

It is with troubling regularity that parties to family law appeals
    dealing with equalization payments bring motions to adduce purportedly fresh
    evidence on appeal.  Such a practice is to be discouraged.

[23]

The
Courts of Justice Act
, R.S.O. 1990, c. C.43, provides that:

134. (4) Unless otherwise provided, a court to which an appeal
    is taken may,
in a proper case

(b) receive further evidence by affidavit, transcript of
    oral examination, oral examination before the court or in such other manner as
    the court directs

to enable the court to determine the appeal. [Emphasis added.]

[24]

The case of
Palmer v. The Queen
, [1980] 1 S.C.R. 759, at p.
    775, established the criteria that define a proper case for fresh evidence:

(1) The evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial provided that this general
    principle
will not be applied as strictly in a criminal
    case
as in civil cases. [Citation omitted; emphasis added.]

(2) The evidence must be relevant in the sense that it bears
    upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is
    reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result.

[25]

Therefore, fresh evidence will generally not be admitted in civil
    appeals if, by due diligence, it could have been adduced at trial.

[26]

In the appellants fresh evidence motion, she seeks to adduce expert
    opinion evidence about the Mobarakeh lands from the same expert in Iranian law
    whom she called at trial.  The fresh evidence is said to arise from documentation
    from Iran received after trial.  The appellant does not argue that the
    documentation could not have been obtained, with due diligence, before trial.
    Yet, she submits that the documentation, as interpreted by her expert, would
    have affected the outcome below, and should thus be admitted on appeal.

[27]

We do not accept this submission.

[28]

In the context of a dispute about the quantum of an equalization
    payment, the due diligence requirement ought not to be relaxed.  Contrary to
    the appellants contention, her position does not find support in
R. v.
    Manasseri
, 2016 ONCA 703.
Manasseri
is a criminal case.  As the
    above-quoted provision from
Palmer
expressly states, the due diligence
    requirement is not applied as strictly in a criminal case.

[29]

In essence, through the appellants fresh evidence motion, she asks this
    court, equipped with documentation that appears to have been obtainable before
    trial, to reweigh conflicting evidence that was before the trial judge.  That
    runs contrary to the notion that fresh evidence should
not

be
    admitted on appeal if, among other things, by due diligence it could have been
    adduced at trial.

[30]

As was the case in
Mason v. Mason
, 2016 ONCA 75, at para. 197, it
    would not be in the interests of justice to allow a party to adduce evidence  delivered
    on the eve of the oral hearing of the appeal  that could have been led at
    trial.

[31]

Accordingly, the appellants fresh evidence motion is dismissed.

[32]

The respondents fresh evidence motion was made to respond to the fresh
    evidence which the appellant sought to introduce.  As the respondent readily
    conceded, if the court did not admit the appellants fresh evidence, there was
    no need to consider his fresh evidence motion.

[33]

For these reasons, both motions to adduce fresh evidence are dismissed.
    In the circumstances, the respondent is entitled to costs of both motions.

THE ISSUES ON APPEAL

[34]

The appellant asks this court to find that the trial judge erred in:

1.
    determining the respondents net family property because the trial judge used
    an incorrect valuation date value for the mortgage attributed to 4501-25
    Telegraph Mews and an incorrect value for the respondents bank account on
    valuation date;

2. determining
    the appellants net family property, particularly the value attributed to the
    Mobarakeh lands;

3.  failing
    to order or analyze an unequal division of net family property in favour of the
    appellant in accordance with s. 5(6) of the
FLA
.

ANALYSIS

[35]

Before turning to a consideration of these issues, two points should be
    made.

[36]

First, the court found it necessary to call on the respondent only in
    respect of the value attributed to the Mobarakeh lands (not ownership of those
    lands) and the trial judges treatment of s. 5(6) of the
FLA
.

[37]

Second, this courts consideration of the issues is informed by the
    trial judges findings on the credibility of the parties.  At paras. 5-22 of
    the reasons, the trial judge gave thorough, careful reasons for finding that neither
    party was credible or reliable.  He concluded by saying this, at para. 23 of his
    reasons:

As is apparent from the foregoing recitals, neither of the
    parties was a credible witness. Moreover, their testimony is not generally
    reliable.  I do not believe that I can safely accept the unsubstantiated
    testimony of either of them.  I therefore look for third party confirmation and
    circumstantial guarantees of trustworthiness for all of their testimony where
    possible. In all, I will view the parties evidence through the lens of common
    sense and try to find corroboration where I can.  In some cases, the burden of
    proof may have to come into play.

[38]

On the record, the trial judges credibility and reliability findings
    are well-founded.

Issue #1  The Respondents Net Family Property

[39]

The trial judge carefully and thoroughly reviewed the parties financial
    records and evidence.  The challenges in performing that task were compounded
    by his credibility and reliability determinations, as described above.

[40]

We dismiss this ground of appeal for the following reasons.

a.

The bank
    account

[41]

The appellant advised the court that she was not pressing the matter of
    the value of the bank account.  However, she did not abandon it.  In the
    circumstances, this matter can be dealt with summarily.

[42]

At para. 76 of his reasons, the trial judge found that [n]o bank
    accounts were proven at trial except the $190 HSBC saving account that is
    included on consent.  This court has not been pointed to a palpable and
    overriding error in this finding of fact.  Accordingly, there is no basis on
    which to interfere with his finding on the respondents bank account on the valuation
    date.

b.

The
    value of the mortgage

[43]

At para. 76 of his reasons, the trial judge wrote:

The respondents evidence of the value of the Telegram Mews
    condominium of $300,000 subject to the outstanding mortgage of $217,000 was not
    contested.

[44]

Both parties confirmed the accuracy of this statement by the trial judge.
    As the appellant did not contest the value of the mortgage at trial, we see no
    basis for interfering with the trial judges use of those figures for the
    purposes of calculating the respondents net family property.

Issue #2  The Appellants
    Net Family Property

[45]

The appellant says that the trial judge erred in attributing a value of
    $200,000 to the Mobarakeh lands.  She says that the dollar figure is
    speculative and cannot stand for that reason.  She further says that the trial
    judge erred when he said, at para. 58 of his reasons, that the only evidence
    he had was the appellants evidence in which she rejected the suggestion that
    the lands were worth $250,000.  She says that this is a palpable and overriding
    error because she had testified at trial that in her opinion the lands were
    worth approximately $33,600.  Therefore, she says, there was evidence before
    the trial judge apart from her rejection of the suggestion that the lands were
    worth $250,000.

[46]

We do not agree.

[47]

At para. 58 of the reasons, the trial judge explained that:

a.

the Mobarakeh lands
    had appreciated since the time of marriage, when the appellant acquired her
    interest in them;

b.

in an affidavit
    filed earlier in the proceedings, the appellant rejected the respondents
    contention that the lands were worth $250,000;

c.

he did not
    accept the evidence of the respondents expert who had valued the lands at $216,000;

d.

the appellant must
    have recognized that a valuation was required for the lands, yet she did not
    provide one; and

e.

there was little
    basis on which to determine the value of the lands.

[48]

The trial judge concluded para. 58 with the following:

In the circumstances, it seems to me that [the appellants]
    response to the $250,000 figure was not random and that I can infer from her
    failure to value the land that presenting a valuation would not have been
    favourable to her position.  In my view therefore it is fair and just to assess
    the value attributable to her interest in the Mobarakeh land at 80% of the
    $250,000 amount or $200,000 as at the valuation date.
Livent Inc. (Receiver
    of) v. Deloitte & Touche
, 2016 ONCA 11 (CanLII), at paras. 386-88.

[49]

Read in the context of the reasons as a whole, we do not accept that the
    trial judge erred when he stated that the only evidence was the appellants
    rejection of the suggested figure of $250,000.  As set out above, the trial
    judge made it clear that he could not safely accept the unsubstantiated
    testimony of either party.  Thus, when he made the impugned statement, we
    understand it to be in the context of him having rejected the appellants
    figure of $33,600, because it was unsubstantiated and had no circumstantial
    guarantees of trustworthiness.

[50]

This view finds support when the trial judges valuation of the Shiraz
    property is considered.  At para. 56 of the reasons, the trial judge recited
    that at or near the valuation date, based on her inquiries and understanding,
    the appellant had suggested to the respondent that the Shiraz property should
    have a certain value.  The trial judge said that this evidence had some
    circumstantial trustworthiness because it was intended to be used to maximize
    both parties value in a true sale to a third party.  He therefore used the
    figure suggested by the appellant as the value for the Shiraz property.

[51]

As can be seen, the trial judge followed the approach that he had
    indicated that he would use when considering the parties testimony.  Because
    the parties lacked both credibility and reliability, the trial judge looked for
    third-party confirmation.  Where there was none, he searched for
    circumstantial guarantees of trustworthiness for all of their testimony.  In
    the absence of either third-party confirmation or circumstantial guarantees of
    trustworthiness, the trial judge viewed the parties evidence through the lens
    of common sense.

[52]

In the case of the Mobarakeh lands, there was nothing to corroborate the
    appellants suggested figure of $33,600 and, unlike the Shiraz property, there
    was no circumstantial guarantee of trustworthiness for that figure.  Thus it
    was that, after rejecting the value placed on the Mobarakeh lands by the
    respondents expert, the trial judge found that the only evidence he had in
    respect of the value of the lands was the appellants evidence in which she
    rejected a value of $250,000.

[53]

We also reject the appellants contention that the trial judge was
    speculating when he attributed a value of $200,000 to the appellants interest
    in the Mobarakeh lands as at the valuation date.  The trial judge was entitled
    to draw the inference that he did for the reasons that he gave.  The appellant
    knew that a valuation of the lands was needed for trial and did not provide one.
    Her response to the $250,000 figure proposed by the respondent was not random.
    It was open to the trial judge to draw the inference that he did.  Knowing that
    the respondent viewed the Mobarakeh lands as having a value of $250,000, the
    appellant failed to provide the court with a valuation of the lands because
    such a valuation would not have been favourable to her position.

[54]

The trial judge used the evidence that he had, limited as it was.  He
    did the best that he could on that evidence.  There is no basis on which to
    interfere with his determination of the value to be attributed to the Mobarakeh
    lands.

[55]

This ground of appeal is dismissed.

Issue #3  Unequal Division
    of Net Family Property

[56]

The appellant submits that the trial judge erred in failing to address
    the issue of unconscionability under s. 5(6) of the
FLA
.  She says that she
    raised the matter in her pleadings and, therefore, it is open to this court to
    address it.  Her   arguments on this matter are heavily dependent on the fresh
    evidence which she sought to adduce and which we have refused to admit.

[57]

The respondent says that neither party raised this issue before the
    trial judge. He contends that it would be unfair to permit the appellant to raise
    the issue now because he did not have a fair chance at trial to test the evidence
    on which it rests or to lead his own evidence on the issue.  He submits that
    the appellant should not benefit from having failed to raise and pursue the
    matter at trial.

[58]

We accept the respondents submission.

[59]

At para. 74 of the reasons, the trial judge expressly states that
    neither party had raised a question of unconscionability under s. 5(6).  While
    the appellants pleading does make mention of s. 5(6), the appellant did not
    identify it as an issue for resolution at trial.  Neither party addressed the
    matter in their handling of the evidence at trial nor did they make submissions
    on it to the trial judge.

[60]

The appellant is effectively raising this issue for the first time on
    appeal.  The record is not adequate for the court to fairly hear and decide it.
    Had the appellant wished to pursue the matter, she should have done so at
    trial.

[61]

This ground of appeal is dismissed.

DISPOSITION

[62]

For these reasons, all three motions and the appeal are dismissed, with costs
    to the respondent fixed at $9,500, all inclusive.

Released: December 29, 2016 (E.E.G.)

E.E. Gillese J.A.

J. MacFarland
    J.A.

S.E. Pepall
    J.A.