COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Martin, 2016 ONCA 840

DATE: 20161108

DOCKET: C59909

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Chad Everett Martin, Rhonda Lynn Asbreuk and
    Williamsberg
Financial Centre Inc.

Respondents

Xenia Proestos, for the appellant

Mark Halfyard and Breana P. Vandebeek, for the
    respondents

Heard: April 26, 2016 and September 21, 2016

On appeal from the ruling of Justice Robert D. Reilly of
    the Superior Court of Justice, dated November 28, 2014, upholding, on
certiorari
,
    the ruling of Justice Colin R. Westman of the Ontario Court of Justice, dated
    October 24, 2014.

Weiler J.A.:

A.

Overview

[1]

This appeal raises a narrow jurisdictional issue. Does the Summary
    Conviction Court judge have jurisdiction to conduct an inquiry into whether
    costs should be awarded to the respondents as a remedy for alleged violations
    of their rights under the
Canadian Charter of Rights and Freedoms
after a stay of proceedings by the Crown pursuant to s. 579 of the
Criminal
    Code
?

[2]

For the reasons that follow, I would hold that the Summary Conviction
    Court judge did not have jurisdiction.

B.

HIstory of the Proceedings

[3]

The respondents were charged with offences under s. 239(1) of the
Income Tax Act
,

R.S.C., 1985, c. 1 (5th Supp.). A person
    guilty of an offence under this provision is liable on summary conviction to
    pay a fine, or is subject to a fine and imprisonment for a term not exceeding
    two years. At the election of the Attorney General of Canada, the matter may
    proceed by way of indictment and, in that case, an accused is subject to
    greater penalties.

[4]

The Attorney General proceeded summarily and the trial commenced
    on January 20, 2014. Evidence was heard from May 21 to May 29, 2014, at which
    time the key Crown witness, who was being cross-examined, exhibited signs of
    extreme emotional strain, was taken to hospital and was granted a medical
    leave. The Crown took four days to reconsider its position and then decided to
    exercise its power under s. 579 of the
Criminal Code
[1]

to direct an officer of the court to stay the proceedings that had been
    brought against the respondents.

[5]

Before directing the stay on June 3, 2014, the Crown advised the
    respondents defence counsel of its intention. Defence counsel replied that the
    respondents would seek costs against the Crown pursuant to s. 24(1) of the
Charter
for alleged violations of their rights.

[6]

After the proceedings were stayed, the respondents advised the
    Summary Conviction Court judge of their application for costs. Then, on June 5,
    2014, the respondents filed a Notice of Application for an order of costs
    against the Crown and the Canada Revenue Agency. The application sought costs
    as a remedy for various acts of prosecutorial and investigation negligence,
    abuses of the criminal process and violation of the Applicants rights as
    protected by s. 8 of the
Canadian Charter of Rights and Freedoms
.

[7]

The Crown submitted that, as soon as the stay was entered, the
    court lost jurisdiction to grant the costs sought.

[8]

The Summary Conviction Court judge held that the informal
    understanding between the Crown and the defence was sufficient to preserve this
    courts right to deal with the issue of costs.

[9]

The Crown applied for
certiorari
thereby seeking to
    have the Summary Conviction Court judges decision that he had the right to
    consider the respondents request for costs, reviewed on the basis he had
    exceeded his jurisdiction.

[10]

The Superior Court judge held that, prior to the stay, there was
    a request for relief in accordance with s. 24(1) of the
Charter
before
    the Summary Conviction Court and that, while the circumstances in which the
    defence would be entitled to costs may be limited, the application was not
    completely barred by the stay. Accordingly, the Superior Court judge refused to
    quash the decision at first instance for want of jurisdiction.

[11]

On the appeal to this court, the Crowns position is that the
    decision in
R. v. Fach,
[2004] O.J. No. 4637 (C.A.) is
    dispositive of the jurisdictional issue. In
Fach
,

the Crown
    withdrew charges against the respondents prior to arraignment and plea. This court
    held at para. 2:

Absent abuse or some other flagrant impropriety on the part of
    the Crown in withdrawing the charges, neither of which was alleged here, the
    summary conviction judge had no jurisdiction to hold a freestanding hearing on
    the issue of costs arising from alleged breaches of the respondents
Charter
rights.

[12]

Shortly before the appeal before us commenced on April 26, 2016,
    this court released its decision in
R. v. Fercan Developments Inc
.
,
2016 ONCA 269, 28 C.R. (7th) 148. In
Fercan,
this court held that
    a provincial court judge hearing a forfeiture application under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
) has the
    implied power to control its own process and therefore, the jurisdiction to
    award costs when there has been a marked and unacceptable departure from the
    reasonable standards expected of the prosecution.

[13]

Before us, the respondents advanced the argument that we should
    apply
Fercan
, and that the ratio in
Fach
is not binding on
    this court. The hearing was adjourned to allow a request for the appeal to be
    heard by a five-member panel. That request was denied. The appeal continued on
    September 21, 2016. In addition to supplementary facta on whether
Fercan
displaced
    the principles outlined by this court in
Fach
, the court received
    further oral submissions.

C.

Discussion

[14]

Before deciding the overarching issue of whether a Summary Conviction
    Court judge has jurisdiction to make an award of costs once a stay has been
    entered under s. 579 of the
Criminal Code
, I must discuss the holdings
    in
Fach
and
Fercan
.

(1)

Is
Fach
dispositive of this appeal?

[15]

The Crown submits that, like all decisions of the Court of
    Appeal,
Fach
is binding on us and we must apply it in this case.

[16]

The respondents acknowledge that
Fach
is a binding
    decision but, submits that, because it is an endorsement, it has limited
    precedential value and is not decisive of the issue before us. In addition, the
    respondents rely on the factual differences between the two cases.

[17]

I agree that the factual context of
Fach
differs from
    the case before us. There, the accused was never arraigned and no plea was
    taken before th
e
charges were withdrawn. Unlike this case, the judge
    in
Fach
never became the trial judge and, as such, never gained
    jurisdiction to hear a free-standing costs application.

[18]

I also agree that reasons given by way of endorsement are mainly
    directed at giving the immediate parties an understanding of why the court disposed
    of the appeal as it did. Jurisprudential principles intended to be articulated
    for the first time take the form of written judgments. Care must be taken not
    to construe an endorsement as supporting broad principles that were not
    specifically addressed: see
R. v. Singh,
2014 ONCA 293, 120 O.R. (3d)
    76, at para. 12;
R. v. Timminco Ltd.,
(2001), 54 O.R. (3d) 21, 42 C.R.
    (5th) 279 (C.A.), at paras. 35-36.

[19]

That said, the weight to be given to an endorsement will vary
    widely. Sometimes the general principles of law have already been established by
    full written reasons in prior cases and it is only necessary for the Court to
    apply those principles to the case before it. Sometimes the jurisprudential
    heavy lifting in the particular case has been done by the court at first
    instance and there is little, if anything, for the appellate court to add apart
    from its agreement with that reasoning.

[20]

The endorsement in
Fach
expressed its substantial
    agreement with the reasoning of the judge at first instance who observed that:

when the question of jurisdiction is tested against the
    functional and structural approach set out in
R. v. 9746497

Ontario
    Inc
.

(
c.o.b. Dunedin Construction
) (2001), 159
    C.C.C.(3d) 321 (S.C.C.) at 355, it is clear that the overriding function of the
    summary conviction courts is to try criminal cases. It is not to fix costs.

The endorsement also cited appellate and Supreme Court
    of Canada jurisprudence for the general principle that absent a finding of
    abuse or other flagrant impropriety, it is not for the Summary Conviction Court
    judge or the accused to determine how the limited resources of the Summary Conviction
    Court should be used. Thus, the weight to be accorded to
Fach
must
    take into consideration the reasons it endorsed and the jurisprudence on which
    it relied.

[21]

I must also take into consideration, however, that the argument
    made in
Fercan,
namely, that the provincial court has

implied
    jurisdiction to award costs based on the courts ability to control its own
    process, was not raised at trial or on appeal in
Fach.

[22]

Because the factual context is different and because the argument
    now made is different,
Fach
is not clearly dispositive of the appeal
    before us.

(2)

Does
Fercan
apply to this case?

[23]

Before considering whether
Fercan
applies to this appeal,
    it is necessary to lay out the factual background and the considerations that
    animated the decision.

[24]

Fercan Developments Inc. was the subject of a forfeiture
    application under s. 16 of the
CDSA
after a marijuana grow operation
    was found on a portion of its 35 acre property. FirstOntario Credit Union held
    a three million dollar mortgage on the Fercan property as security for a loan.

[25]

Robert DeRosa was the property manager for Fercan. He used his
    position to ensure that the grow operation remained hidden but, eventually, it
    was discovered and he was charged and convicted of offences under the
CDSA
.
    Roberts brother, Vincent, was the sole director, officer and shareholder of
    Fercan. Robert lived on property owned by GRVN Group Inc. (GRVN). Police
    discovered evidence of a recently dismantled grow operation on the GRVN
    property as well as drugs linked to the Fercan property. Another brother,
    Nicola, was the sole director, officer and shareholder of GRVN. Nicola, GRVN,
    Vincent and Fercan were never charged with any offence.

[26]

The Crown obtained an
ex parte
restraint order on the
    property owned by Fercan, including FirstOntarios interest, as well as on the
    property owned by GRVN in the Superior Court. The Crown successfully resisted an
    application by Fercan and FirstOntario to vary the restraint order to permit
    sale of the Fercan property, repayment of FirstOntarios mortgage, and the deposit
    of the balance of the money in court. It then brought forfeiture proceedings
    against Fercan, FirstOntario and GRVN. Section 19(3) of the
CDSA
permits a judge to return offence-related property to any person who is
    lawfully entitled to it and who appears innocent of any complicity or collusion
    in respect of the underlying designated substance offence. Prior to the
    commencement of the hearing, the application judge ruled that on a s. 19(3)
    application, the onus remained on the Crown throughout the proceedings and it
    had the burden of showing that the respondents did not appear innocent of any
    complicity or collusion:
R. v. Fercan Developments Inc.,
[2013] O.J.
    No. 748 (C.J.). The Crown did not appeal this decision.

[27]

On the 31st day of the forfeiture hearing, the Crown suddenly
    abandoned its application for forfeiture against FirstOntario. The hearing was
    maintained in relation to the application against Fercan and GRVN. The application
    judge concluded that, although these were offence-related properties, the
    evidence overwhelmingly led to the conclusion there was no evidence of complicity
    or collusion by them or their owners with Robert or those convicted in relation
    to the grow operation. The Crown did not appeal this decision.

[28]

FirstOntario then sought costs against the Crown before the provincial
    court judge who had heard the forfeiture application. So did Fercan and GRVN. The
    application judge held that the Crowns forfeiture application was without
    merit from the start. Any evidence the Crown had connecting Fercan and GRVN to
    the grow operations was extremely speculative and ignored the body of evidence
    rebutting any inference advanced by the Crown against these innocent third
    party by-standers. The decision to commence forfeiture proceedings demonstrated
    an intransigent, hardball attitude, which continued throughout the hearing,
    such as refusing to provide disclosure of the evidence relating to the grow
    operations even though such disclosure would have been provided to an accused
    person. In relation to FirstOntario, the Crown had initially not contested its
    security interest, said it would advise of any change of position, did not do
    so, then, even after obtaining documentary disclosure of the validity of FirstOntarios
    interest, aggressively resisted its application to vary the restraint order,
    and conducted forfeiture proceedings against it. The Crowns explanation for
    suddenly abandoning the proceedings against FirstOntario was not satisfactory.
    Overall, the conduct of the Crown towards FirstOntario amounted to a marked and
    unacceptable departure from the reasonable standards expected of the
    prosecution or Crown, misconduct meriting an award of costs against the Crown
    on a substantial indemnity scale. The application judge also concluded that the
    Crowns conduct in relation to Fercan and GRVN met the standard for an award of
    costs against the Crown.

[29]

The Crown appealed. One of the arguments made on appeal was that
    the provincial court judge lacked jurisdiction to make an award of costs under
    the
CDSA
and that the applicants should initiate an action in the
    Ontario Superior Court for damages instead. This court rejected that argument. Writing
    on behalf of the Court, LaForme J.A. rested his decision on three linked pillars
    or reasons. The first is that even though a statutory court does not have any
    inherent jurisdiction, the court has an implied power to control its own
    process and, as part of that power, a provincial court judge can award costs.
    The second is that the breadth of the provincial courts mandate under the
CDSA
suggests that it has an implied power to award costs. Both the Superior Court of
    Justice and the Ontario Court of Justice have jurisdiction to hear forfeiture
    applications under the
CDSA
. Court is not defined in the
CDSA
.
    Justice LaForme held that, having regard to the wording of the forfeiture
    provisions, Parliament intended that the power of the provincial court judge
    and the Superior Court judge in relation to forfeiture applications be equal.
    Third, having regard to the statutory context, the implied power to award costs
    was reasonably necessary for the court to discharge its mandate in a fair and
    efficient manner. At para. 55, LaForme J.A. stated:

[I]n light of the Superior Courts power to award costs,
    depriving the Ontario Court of Justice of that power is undesirable. Without
    this power a contest would likely arise as to which court the application for
    forfeiture should be brought in, depending on whether the costs issue was
    deemed relevant by the Crown. A contest like this would frustrate the scheme of
    the forfeiture provisions and could not have been intended by Parliament.

[30]

The Crown submits that
Fercan
is limited to the
CDSA
forfeiture regime. In support of its position, the Crown points out that in
Fercan
,
    the court held that a
CDSA
forfeiture proceeding is different from
    routine criminal cases:
Fercan
, at para. 79. A
CDSA
forfeiture proceeding is a stand-alone hearing and is neither a trial nor part
    of sentencing. Second, the parties in
Fercan
were innocent third party
    by-standers. An accused who is charged but not convicted is not entitled to the
    same treatment by the courts:
Fercan
, at para. 80. Further, the Crown
    notes that
Fercan
does not mention
Fach
, a reflection of the
    factually distinct context in
Fercan
,

and an indication that
Fercan
was not meant to overrule
Fach
. Finally, the Crown also submits
    that the respondents are not without a remedy, they can bring a separate
    proceeding in the Superior Court for costs.

[31]

The respondents submit that the implied power of a provincial
    court judge to control its own process is not limited to the forfeiture regime
    under the
CDSA
. They argue that there is no reason to limit
Fercan
.
    The respondents submission is that simply by creating a hybrid offence,
    Parliaments implied intention is that both the Summary Conviction Court and
    the Superior Court have the same jurisdiction to award costs and the Summary Conviction
    Court must entertain the respondents application.

[32]

The respondents further point out that in
Fercan,
LaForme
    J.A., rejected the argument now advanced by the Crown that the respondents are
    not left without a remedy because they can bring a separate proceeding in the
    Superior Court. Relying on the Supreme Court of Canadas decision in
R. v.
    Conway,
2010 SCC 22,

[2010] 1 S.C.R. 765, at para. 79, LaForme
    J.A. observed, at para. 57 of his reasons, that bifurcating proceedings is
    undesirable and should be avoided in all but exceptional cases. He also relied
    on the decision of McLachlin C.J.C. in
Dunedin
to the effect that
    bifurcation would negatively impact the effective and efficient functioning of
    the courts and could render a remedy illusory in practice. The respondents
    submit that two policy reasons, fairness and judicial efficiency, militate in
    favour of the Summary Conviction Court judges having the power to award costs.

[33]

A fair reading of
Fercan
leads me to conclude that it is
    also not determinative of this appeal. While recognizing, generally, that a
    statutory courts ability to control its own process can extend to awarding
    costs, LaForme J.A. reiterates throughout the judgment that the particular
    proceeding, a
CDSA
forfeiture hearing, provides the foundation for
    much of his analysis and conclusions. As will be discussed below, the context
    in which the issue arises in this case, a cost application brought after a Crown-directed
    stay of proceedings, gives rise to wholly different considerations than those
    at play in
Fercan
.

(3)

Did the judges below err in holding that the Summary Conviction Court
    had jurisdiction to conduct an inquiry into costs notwithstanding the stay of
    proceedings under s. 579 of the
Criminal Code
?

[34]

It is apparent from the reasons of the Summary Conviction Court judge
    on the respondents costs application, that he accepted the respondents
    comment to the Crown that they would bring an application for costs, as an
    informal application for Charter relief under s. 24(1) made prior to the entry
    of the stay. On the
certiorari
application, the Superior Court upheld
    the Summary Conviction Court judges decision on the basis that where an
    application for
Charter
relief is before the court, a Summary
    Conviction Court retains jurisdiction to address the issue of costs. The Superior
    Court judge, citing
Fach
, stated:

[I]t is conceded by counsel that Westman J. accepted that there
    was an application pursuant to s. 24(1) of the
Charter
before him. If
    that be so, then he retained jurisdiction to consider the issue of costs,
    perhaps if only in circumstances of abuse or some other flagrant impropriety
    on the part of the Crown in withdrawing the charges.

[35]

There is no question that statutory courts have jurisdiction to
    hear applications for
Charter
relief, and grant costs as part of a
    remedy under s. 24(1):
R. v. Tiffin
,

2008 ONCA 306, 90 O.R.
    (3d) 575;
Dunedin
, at para. 97. But this implied power is not without
    parameters. Specifically, the implied power is linked to the courts control of
    its trial process:
Dunedin
, at para. 81.

[36]

Applying
Dunedin,
I conclude that the Summary Conviction
    Court judge has no jurisdiction to hear the costs application in this case for
    several reasons. First, the courts process is not invoked when the Crown
    exercises its prerogative to enter a stay pursuant to s. 579 of the
Criminal
    Code
. Second, neither the Superior Court of Justice nor the Summary Conviction
    Court has jurisdiction to entertain an application for an alleged breach of a
Charter
right once a stay is entered pursuant to s. 579. Third, a principled approach to
    the question of jurisdiction of statutory courts to award costs, as set out in
Dunedin
,

does not support a conclusion that the Summary Conviction Court judge in
    this matter retained jurisdiction to hear the costs application after the
    Crown-directed stay.

[37]

To the first point, an important distinction between
Fercan
and this case arises from the power invoked by the Crown under s. 579 of the
Criminal
    Code.
Section 579(1) states that:

The Attorney General or counsel instructed by him for
    that purpose may, at any time after any proceedings are commenced and before
    judgment,
direct the clerk or other proper officer of the
    court to make an entry on the record that the proceedings are stayed by his
    direction
[Emphasis added.]

[38]

It is the Attorney General or his agent who is in control. The
    entry of a stay is an administrative act beyond the direction or control of the
    trial judge:
R. v. Jones
(1996), 5 C.R. (5th) 364 (C.A.);
Balderstone
    v. R.
(1983), 23 Man. R. (2d) 125 (C.A.)
.
    Once the Crown has exercised its right under s. 579 to direct a stay of
    proceedings, the judge, whether a Summary Conviction Court judge or a Superior Court
    judge, is
functus
:
R. v. Smith,
(1992), 79 C.C.C. (3d) 70
    (B.C.C.A.), leave to appeal to S.C.C. dismissed for delay, [1993] S.C.C.A. No.
    7.

[39]

Clearly, in a situation where a trial judge comes to a final
    disposition in a matter, including entering a judicial stay of proceedings, he
    or she retains jurisdiction to craft an appropriate remedy for a
Charter
violation,
    including awarding costs, where appropriate. That is because a remedy under s.
    24(1) of the
Charter
, in those circumstances, is part of the trial
    judges discretionary adjudicative process. In
Fercan
, for example,
    the application judge concluded that the Crowns forfeiture application was
    meritless and that the Crowns overall conduct rose to the level of a marked
    and unacceptable departure from the standard expected of the Crown. Costs were
    awarded on the basis of the application judges findings, and an interpretation
    of the function and purpose of the forfeiture provisions in the
CDSA
.

[40]

The same cannot be said in circumstances where the Crown
    exercises its discretion to direct a stay of proceedings, a decision which, in
    no way, requires any findings of fact or adjudication of issues, and over which
    the trial judge has no power to interfere.

[41]

Thus, an important part of the foundation for the courts
    conclusion in
Fercan
, the implied power of the court to control its
    own process, is lacking in this case, given the nature of the power granted to
    the Crown under s. 579 of the
Criminal Code
.

[42]

Second, neither the Superior Court nor the Summary Conviction Court
    has jurisdiction to entertain an application alleging a violation of the
    respondents
Charter
rights once a stay has been entered under s. 579
    of the
Criminal Code
. See
Smith
, at p. 80:

Without a Charter consideration, it is clear that once the
    Crown exercises its s. 579 right to direct a stay be entered, the judge hearing
    the prosecution is
functus
and without jurisdiction to proceed
    further. Does the Charter change that? With respect, I think not.

[43]

The following passage from
Smith
, also at p. 80, was
    quoted with approval by Doherty J.A. in
R. v. Larosa
(2002), 166
    C.C.C. (3d) 449 (C.A.), at para. 41 of his reasons:

When the stay has been entered there is no contest between the
    individual and the state. The prosecution has come to an end. The position of
    the accused as against the state is the same as if he had never been charged.
    The individual is not put at jeopardy by the stay. On the contrary, the
    jeopardy he faced as an accused in an ongoing prosecution has come to an end. It
    may be that if in this case a new indictment is preferred, an argument could be
    made that the action of the Crown in staying and preferring a new indictment,
    gives rise to
Charter
violations. However, at the moment a stay is
    entered, and assuming the matter stops there, I can see no possible violation
    of the accuseds
Charter
rights.

[44]

In
Larosa,
the appellants alleged the conduct of the
    Crown during the criminal proceedings, and then in staying the criminal
    proceedings, amounted to an abuse of process, particularly as it related to
    Pagano, an accused for whom extradition to the United States was made possible
    by the Crowns stay of criminal proceedings in Canada. The appellants sought to
    have the stay reviewed and set aside. Doherty J.A. rejected their submissions
    at paras. 42-43 of his reasons and held that even if these claims had merit,
    they would provide no basis for interfering with the Crowns decision to enter
    a stay and would only be germane if criminal proceedings were reinstituted.

[45]

In this case, the respondents do not complain that the Crowns
    entry of a stay was improper. At most, the respondents allege negligence on the
    part of the Crown.
[2]
As this court noted in
R. v. Singh
, 2016 ONCA 108, 28 C.R. (7th) 124 (
Singh
,
    2016), at paras. 33-34, the concept of marked and substantial departure
    indicates a deviation from a norm that goes beyond negligence.

I agree
    with the Superior Courts comments on the
certiorari
application that
    it is highly debatable whether a costs remedy would be appropriate in this
    case, and more importantly, that the application should only be entertained in
    circumstances of abuse or some other flagrant impropriety on the part of the
    Crown in withdrawing charges. It was the respondents prerogative to not
    challenge the Crowns decision to stay the proceedings. Indeed, the decision
    meant that the respondents no longer faced the jeopardy of being convicted, nor
    would they need to expend any further resources in defending themselves. In the
    absence of an argument that the Crown acted improperly by directing a stay,
    there was no basis for the Summary Conviction Court judge in this case to
    conclude that he had jurisdiction to hear a costs application. Nothing in the
    jurisprudence suggests that, in circumstances such as the present, the power of
    the Attorney General to stay proceedings is circumscribed by the courts
    implied power to control its own process. The stay pursuant to s. 579 brought
    proceedings to an end.

[46]

Neither the Superior Court nor the Summary Conviction Court would
    have had jurisdiction to entertain an application for costs once the stay was
    entered. Thus, the argument that the Summary Conviction Court should have
    jurisdiction to award costs because the Superior Court has jurisdiction to do
    so, another key element of LaForme J.A.s reasoning in
Fercan
, does
    not assist the respondents.

[47]

Finally, while
Dunedin
supports a flexible and
    functional approach to determining the power of statutory courts to award
Charter
remedies, nothing in the jurisprudence suggests that the test for
    determining jurisdiction set out in
Dunedin
has been abandoned

in
    favour of an
ad hoc
approach to determining jurisdiction based on a
    partys request to litigate costs or obtain particular relief. The notice the
    respondents provided in this case, whether proper notice or not, does not
    determine the courts jurisdiction to hear the application after the stay was
    entered. Nor is the question of jurisdiction discretionary based on the
    applicants financial position, or a judges personal view of what is fair.

[48]

Rather,
Dunedin
recognized that there will be
    circumstances where costs awards are integrally connected to the function of
    the statutory court and the courts ability to control its trial process by
    disciplining conduct on the part of the prosecution which is not simple
    negligence but which falls far below the standard expected of those
    representing the publics interest and results in the courts process being
    usurped.

[49]

I would reiterate this courts comments in
Singh,
2016 and
R. v. Ciarniello
(2006), 81 O.R. (3d) 561, 41 C.R. (6th) 310 (C.A.),
    leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 424, that there
    continues to be a fundamental difference in the purpose for awarding costs in
    the civil context versus the criminal one. Unlike with civil proceedings,
    indemnity and compensation are not the focus of costs awards in the criminal
    context. As noted in
Singh
, 2016, at para. 52, quoting
Ciarniello,
at para. 33, the Crown is not an ordinary litigant, in that the Crown
    prosecutes and makes decisions respecting prosecutions based on the public
    interest. For that reason:

Costs are not usually deployed in criminal law to influence the
    litigation.As the Crown acts in the public interest when conducting criminal
    prosecutions, it is said that its discretion should not be influenced or
    fettered by the threat of a costs award.

[50]

The respondents position all but disregards the fundamentally
    different purpose of costs awards in criminal proceedings.

[51]

Finally, I would simply note that the fact that
Fercan
involved an innocent third party by-stander, as opposed to an accused person,
    is important. First there is a significant access to justice issue as a
    bystander may incur significant legal costs to enforce his or her
Charter
rights. Second a bystander is in a more vulnerable position than an accused
    person since the rules of criminal procedure, which afford accused persons
    procedural protections, are not available to bystanders. Third, the rationale
    for limiting costs awards in favour of accused persons to cases of Crown
    misconduct does not apply with the same force to bystanders. These differences
    may justify a lower threshold for Crown misconduct:
Ciarniello
, at
    paras. 40-42.

[52]

Therefore, I conclude that the Summary Conviction Appeal Court
    judge erred in holding that jurisdiction to conduct an inquiry into costs
    existed notwithstanding the stay of proceedings under s. 579 of the
Criminal
Code.

D.

Disposition

[53]

For the reasons given above, the rationale in
Fercan
for
    giving the provincial court jurisdiction to award costs as a result of
    forfeiture proceedings having been taken against an innocent third party
    by-stander does not apply here. The Summary Conviction Courts mandate is to
    decide criminal cases that can lead to imprisonment for six months or less. It
    has the implied power to discipline the Crown in rare instances when its
    process has been abused. When, as here, the Crown has directed the entry of a
    stay and no challenge has been raised to its conduct in doing so, it is not
    necessary to the discharge of the Summary Conviction Courts mandate for it to
    entertain an application for costs. Applying the functional and contextual
    approach set out in
Dunedin
, I conclude that the Summary Conviction
    Court judge became
functus
upon the Crowns exercise of its discretion
    to stay the proceedings.

[54]

For these reasons, I would allow the appeal and grant
certiorari
prohibiting the respondents application for costs from continuing.

Released: K.M.W. November 8, 2016

Karen M. Weiler J.A.

I agree Janet Simmons
    J.A.

I agree Gloria Epstein
    J.A.

[1]
Section 579(2) of the
Criminal Code
provides that the proceedings stayed
    may be recommenced within the limited time frame of one year after the entry
    of the stay of proceedings, or before the expiration of the time within which
    the proceedings could have been commenced, whichever is the earlier, without
    laying a new information. Since this was a summary conviction matter, the time
    within which the proceedings could have been commenced is six months. Unless
    the Crown gives notice that it is going to recommence proceedings within that
    time frame, the proceedings shall be deemed never to have been commenced.
    Although the Crown could have reinstituted proceedings within six months, that
    time has now elapsed.

[2]
The respondents costs application alleged: 1) the CRA was negligent in
    advancing an Information to Obtain search warrants that did not disclose
    reasonable grounds for the issuance of the search warrants; 2) the Crown did
    not bring a timely application to have their prior counsel removed due to a
    conflict of interest; 3) the Crown prevented the respondents from bringing an
    application to have the evidence obtained from the search warrants excluded; 4)
    the Crown failed to exercise reasonable care in assessing the reasonableness of
    the grounds contained in the Information to Obtain the search warrants; and 5) the
    Crown failed to consider the reasonableness of any of the areas the respondents
    proposed to cross-examine the Affiant of the Information to Obtain.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McNeil, 2016 ONCA 844

DATE: 20161110

DOCKET: C60090

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheri-Lee Ann McNeil

Appellant

Erika Chozik, duty counsel

Scott Latimer, for the respondent

Heard: November 1 and 2, 2016

On appeal from the conviction entered on February 9, 2015,
    and the sentence imposed on February 9, 2015, by Justice J.T. Lynch of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of aggravated
    assault, uttering a death threat, possession of a weapon and breach of
    probation. She was sentenced to 14 months imprisonment plus a 2 year period of
    probation less 1:1 credit for pre-sentence custody. Although her sentence
    appeal has been heard, her conviction appeal has not. She now brings her
    conviction appeal and seeks to re-open her sentence appeal. She has tendered
    fresh evidence with respect to both.

[2]

The events giving rise to the convictions
    occurred on New Years Eve 2013 at the home of Darlene Kelly. The appellant had
    been staying with Ms. Kelly who was acting as her surety. The complainant Barry
    McKay was also at Ms. Kellys apartment. A dispute arose between Ms. Kelly and
    the appellant. Mr. McKay threatened to call the police. Ms. Kelly, concerned
    about her role as surety, attempted unsuccessfully to take Mr. McKays phone
    from him. The appellant intervened and took the phone herself. When Mr. McKay
    tried to get it back, the appellant stabbed him in the chest with a pair of
    scissors. Both women left the apartment. A neighbour testified that someone
    wearing the same clothes as the appellant was speaking on a cell phone outside
    the Kelly apartment. The neighbour heard the person acknowledge having just
    stabbed someone.

[3]

Only the appellant and Ms. Kelly were in the
    apartment with Mr. McKay when he was stabbed. Each claimed the other had
    stabbed him. Mr. McKay was not consistent on who stabbed him, and was in a
    state of intoxication that evening. Both women were initially arrested but only
    the appellant was charged.

[4]

The trial judge accepted the evidence of Ms.
    Kelly that the appellant was the stabber. It is significant for purposes of the
    fresh evidence motion that Ms. Kelly testified that: (1) she had not been using
    drugs that night; and (2) that the appellant had been drinking and she rated
    her as 7 out of 10 on an intoxication scale.

Fresh Evidence

[5]

The appellant seeks to rely on fresh evidence. It
    takes the form of her affidavit attaching two exhibits. The exhibits are two
    separate pages both entitled Prisoner Detain Sheet. The first sheet
    references the appellant and under the heading Alcohol and Drug Related
    Information there is a check mark in a box next to Sober. The second page
    refers to Darlene Kelly. Under the heading Property and Release Information is
    written drug paraphernalia. The appellants affidavit indicates that she
    received these documents as part of Crown disclosure before trial. However, she
    states that she only discovered them after trial.

[6]

The well-known test for the admission of fresh
    evidence in
Palmer v. The Queen
, [1980] 1 S.C.R. 759 is
: (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; (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.

[7]

The Crown objects to the admission of the fresh
    evidence solely on the basis that it could not reasonably be expected to have
    affected the result. The appellant on the other hand submits that the fresh
    evidence could reasonably be expected to have affected the trial judges
    credibility assessment of her and of Ms. Kelly. She submits that the Prisoner
    Detain Sheets contradict Ms. Kellys evidence: (1) that the appellants
    intoxication level was 7 out 10; and (2) that Ms. Kelly had not used drugs on
    the night in question.

[8]

We do not accept the appellants submission. The
    trial judge made no reference to the appellants state of intoxication except
    in the narration of Ms. Kellys evidence. The trial judge did not base her
    credibility findings of the appellant on Ms. Kellys evidence that the
    appellant had been drinking. She accepted Ms. Kellys evidence. She said her
    evidence was credible and reliable and not impacted in any significant way
    during cross-examination. With respect to the appellant, the trial judge made
    no finding about her sobriety and it formed no part of her credibility
    analysis.

[9]

The appellant further submits that the trial
    judges rejection of the appellants evidence disclosed an underlying, but
    unstated, assumption that the appellant had been drinking. She submits that the
    trial judges references to the illogic of the appellants testimony can only
    be explained by the fact that the appellant had been drinking. Again, we
    disagree. Nothing in the trial judges reasons indicates that her findings
    about the illogical testimony of the appellant were connected to a state of
    intoxication.

[10]

The fresh evidence could not reasonably be
    expected to have affected the result and is therefore not admitted.

Other Grounds of Appeal on
    Conviction

[11]

Although the appellant relies primarily on the
    fresh evidence, she also submits that the trial judge made findings of fact
    based on unsupported inferences and gave uneven scrutiny to the evidence of the
    appellant as compared to that of Ms. Kelly. Again, we disagree. The trial
    judges finding that the appellant stabbed Mr. McKay was based on the
    acceptance of the evidence of Ms. Kelly  evidence she found was confirmed by
    extrinsic evidence including the blood found on the appellants clothes; and
    the testimony of the neighbour who heard the cell phone call. The trial judge
    explained why she accepted Ms. Kellys evidence and rejected the appellants
    evidence. The trial judge further acknowledged that it was a decision based on
    credibility findings but was not a credibility contest. We see no palpable
    and overriding error in her findings of fact.

The Sentence Appeal

[12]

Although  on consent of the Crown  the fresh
    evidence is admitted on the sentence appeal, we see no error in principle in
    the sentencing judges determination as to the length of the sentence. We
    recognize that the sentencing judge referred to the appellants intoxication as
    a factor in fashioning the sentence. However, it was the appellants counsel
    who made submissions on sentence inviting her to do so. As acknowledged by the
    Crown, the appellant should have received enhanced credit for the pre-sentence
    custody at the rate of 1.5:1. In these circumstances, the sentence appeal is
    re-opened and the credit for pre-sentence custody is increased from 279 days to
    418 days.

Disposition

[13]

The conviction appeal is dismissed. The sentence
    appeal is allowed and the sentence is varied by increasing the pre-sentence
    custody credit to 418 days.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morrell, 2016 ONCA 878

DATE: 20161121

DOCKET: C61112

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Morrell

Appellant

Robert C. Sheppard, for the appellant

Lisa Csele and Melissa Insanic, for the respondent

Heard: November 18, 2016

On appeal from the conviction entered on August 28, 2015
    and the sentence imposed on September 8, 2015 by Justice Michael P. ODea of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant, Richard Morrell, was convicted of seven drug charges by
    ODea J. of the Ontario Court of Justice. He received a global sentence of
    three years imprisonment comprised of 14 months credit for pre-trial custody
    and 22 additional months incarceration. The appellant appeals the convictions
    and sentence.

[2]

The drugs that formed the basis of the charges  cocaine, oxycodone,
    hydromorphone (a synthetic heroin), morphine, methamphetamine, codeine and
    ketamine  were found hidden in a garage located on the property owned by the
    appellants mother. In addition to her home and the garage, a variety store and
    gas bar were also on the property. The appellant worked part-time at the store.

[3]

After 16 months of surveillance, the police obtained a search warrant.
    The appellant was inside the garage, which had been the focal point of the
    surveillance, when the search warrant was executed. The police found a
    substantial quantity of drugs inside a leaf blower in the garage, along with
    empty baggies and a scale.

[4]

The main issue at trial was whether the appellant was in possession of
    the drugs. The evidence was circumstantial; although the appellant was in the
    garage, there were no drugs on his person.

[5]

The trial judge concluded that the appellant had knowledge of the drugs
    in the leaf blower and that he exercised primary control over them for the
    purpose of distribution.

[6]

On the conviction appeal, the appellant contends that the trial judge
    erred in his assessment of the circumstantial evidence and rendered an
    unreasonable verdict.

[7]

We are not persuaded by this submission. The trial judge properly
    instructed himself in accordance with
R. v. Griffin
, 2009 SCC 28:

In regard to the circumstantial nature
    of the case, I must be satisfied beyond a reasonable doubt that, on the whole
    of the evidence, the inference I am asked to draw respecting the elements of
    possession point to possession by the accused in the absence of
any other
reasonable inference.

[Emphasis in original.]

[8]

The trial judge drew the inference that every person who went to the
    garage during police surveillance did so for an illegitimate purpose  to buy
    drugs. He referred to the following factors in drawing this inference:

·

the nature and quantity of the drugs seized from the garage;

·

the drugs were well hidden and the exterior of the garage was
    monitored from within;

·

there was a scale commonly used by drug dealers in the garage;

·

no person who went to the garage was there much longer than five
    minutes;

·

by its set up and clutter, the garage would likely not be used as
    a social gathering spot;

·

by its set up and clutter, no alternate public use (to storage)
    can be inferred without considerable speculation;

·

nothing seen about the exterior setup of the garage supports an
    alternate (legitimate) public use; and

·

there is no evidence suggesting any of the contents in the garage
    were for sale and none of the persons leaving were seen to be carrying any item
    that might have come from the garage.

[9]

In our view, this constellation of evidence easily supports the trial
    judges reasoning on this issue.

[10]

The trial judges final inference, namely, that the appellant was the
    person engaged in the distribution of drugs, was also strongly supported by the
    evidence, including:

·

the appellant was present in the garage when the police executed
    the search warrant;

·

the appellant was present in the garage on another occasion when
    the police saw suspicious activity consistent with drug transactions; and

·

the appellants truck was always parked at the garage on days
    when people were making quick visits to it.

[11]

On the sentence appeal, the appellant contends that a global sentence of
    three years was excessive; a fit sentence would have been in the upper
    reformatory range.

[12]

We disagree. The nature (hard drugs) and quantity (substantial) of the
    drugs seized in the garage and the trial judges concern about drugs in Vienna,
    Ontario (a very, very small community within this County) justified the sentenced
    he imposed.

[13]

The appeal is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

David Watt J.A.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.M.C, 2016 ONCA 829

DATE: 20161107

DOCKET: C60705 & C60581

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.M.C.

Appellant

Phillip Millar, for the appellant

Rochelle Direnfeld, for the respondent

Heard: October 26, 2016

On appeal from the conviction entered on January 9, 2015
    and the sentence imposed on May 15, 2015 by Justice John A. Desotti of the Superior
    Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 63

By the Court:

[1]

The appellant appeals his convictions on 26 counts of sexual assault and
    sexual touching committed when he was an adult with respect to his stepdaughter,
    and on 26 counts of indecent assault and gross indecency committed when he was
    a young offender with respect to three young females. All allegations were
    historic. The adult offences were allegedly committed when the appellant was 41
    to 48 years old and his stepdaughters, K.T. and J.T., were between 5 and 11
    years old. For all but two of the alleged young offender offences, the Crown
    could not prove that the appellant was older than 13 at the time of the alleged
    offences. The complainants L.C., P.B. and K.A. were between 5 and 9 years
    old. Two of the alleged young offender offences were proven by the Crown to
    have occurred after the appellants fourteenth birthday, when the complainant
    K.A. was nine or ten years old.

[2]

The respondent Crown concedes that 24 of the 26 young offender convictions
    must be set aside, as the allegations in those counts concerned events that could
    not be proven to have occurred after the appellants 14th birthday. Contrary to
    the notice the Crown filed, pursuant to the
Youth Criminal Justice Act,
S.C. 2002, c. 1

(the
YCJA
)
the Crown could not seek an adult
    sentence for those counts. As a consequence, the appellants election of a trial
    before the Superior Court was invalid, as the court had no jurisdiction to try
    him on those counts.

[3]

The appellant raises three principal grounds of appeal relating to the
    remaining counts.

[4]

First, the appellant submits that the trial judge erred by conducting
    the trials on the adult and the young offender indictments simultaneously and,
    in effect, as a single trial.

[5]

Second, the appellant submits that the trial judge erred in admitting
    evidence of the young offender counts as similar fact evidence on the adult
    counts, and evidence of the adult counts as similar fact evidence on the young
    offender counts.

[6]

Third, the appellant submits that the trial judge erred in admitting as
    similar fact evidence a videotaped statement of the appellants natural
    daughter S.C., alleging more historic acts of sexual impropriety.

[7]

We agree with these three submissions and conclude that this appeal must
    succeed in that new trials should be ordered.

Facts

[8]

The essential facts may be briefly stated.

[9]

The appellant and his ex-wife were married in the Yukon and each had
    children from previous marriages. They moved to Ontario in 2000 with the
    appellants ex-wifes children, and separated in 2005. In 2012, the appellants
    step-daughter K.T., then in grade 12, made allegations that the appellant had
    sexually assaulted her when she was aged 5 to 11. The appellants younger
    sister, J.T., eventually made similar allegations. Twenty-eight charges were
    laid, 26 counts pertaining to K.T., and two counts pertaining to J.T.

[10]

When news of these charges was published in the media, three women came
    forward to allege that the appellant had sexually abused them some 30 years
    earlier. At trial it was established that these allegations concerned the
    period when the appellant was between the age of 12 and 15, and the
    complainants were aged between 5 and 11 years old.

[11]

As we will explain when discussing the similar fact evidence ground of
    appeal, there were similarities in the allegations made by the various
    complainants. All testified that the appellant had touched them inappropriately
    or that he had them touch him inappropriately.

Analysis

(1)

Trial together of adult and young offender indictments.

[12]

The appellant had asked for and expected two separate trials be held,
    with separate triers of fact on the two indictments. Counsel for the appellant
    agreed to run one trial after the other, but not to a single trial on both
    indictments. In a chambers discussion conducted on the first day of the
    scheduled trial, the trial judge indicated that both the adult and the young
    offender trials would run concurrently in front of him. There were two separate
    indictments, two arraignments, and the record for the two sets of counts was
    kept separate by the court reporters, but the trials proceeded together in all
    other respects. The trial judge rendered a single judgment, convicting the
    appellant on all but two counts. The trial judge noted in his reasons for the
    similar fact ruling that there was no severance application made by the
    appellant. However, this is explained by the fact that the proceedings were
    scheduled to be tried separately, and thus no severance application was
    required.

[13]

In our view, the trial judge erred in law by conducting what in
    substance amounted to a single trial of the adult and young offender
    indictments.

[14]

In
R. v. S.J.L.
, 2009 SCC 14, [2009] 1 S.C.R. 426, the Supreme
    Court of Canada held that the
YCJA
does not permit the joint trial of
    a young person and an adult. In our view, the principle upon which
S.J.L.
rests precludes the joint trial of a young offender indictment and an adult
    indictment involving the same accused.

[15]

Writing for the majority in
S.J.L.
, Deschamps J. held, at para.
    72, that it can be stated definitively that [t]he youth justice system is
    separate from the adult system, with separate courts, judges and rules (
L. Tustin and R. E. Lutes
, A Guide to
    the Youth Criminal Justice Act
(2005), at p. 29). She added, at para. 74,
    that Parliament intended to establish a youth criminal justice system that is
    hermetic, and completely separate from the system for adults, and thus to make
    it impossible to hold joint trials of adults and young persons. The rationale
    for this separation was explained, at para. 75:

[T]he effect of the objectives of the [
YCJA
]
    is that the judge is asked to favour rehabilitation, reintegration and the
    principle of a fair and proportionate accountability that is consistent with
    the young persons reduced level of maturity. As for the adult criminal justice
    system, it places greater emphasis on punishment.
There is no doubt that
    how the judge conducts the trial will reflect these different objectives. It
    would be much more difficult to maintain an approach favourable to a young
    person if he or she were being tried together with an adult, and the
    presumption of diminished moral blameworthiness to which the young person is
    entitled could be undermined as a result.
[Emphasis added.]

[16]

While those statements were made in the context of a case involving the joint
    trial of distinct adult offenders and young offenders, in our view, they apply
    with equal force to a joint trial of one individual on adult and young offender
    indictments. Indeed, it seems to us that it would be even more difficult for a
    trial judge to maintain the favourable approach and presumption of diminished
    moral blameworthiness towards an accused as mandated by the
YCJA
if
    the accused were being simultaneously tried for adult offences. Although the
    appellant was an adult when the young offender charges were tried, he was
    entitled to be tried and judged on the legal standard that applied to him at
    the time he was alleged to have committed these offences.
S.J.L.
establishes that the maintenance of the
YCJA
standards requires
    separate and discrete consideration, hermetically isolated from the legal
    standards that apply to adults.

[17]

We do not accept the respondent Crowns submission that by maintaining
    two indictments and coopering together two separate transcripts of the
    proceedings, what occurred here did not amount to a single trial of the two
    sets of charges. In our view, these purely formal features of what occurred
    should not obscure the fact that, in substance, this amounted to one trial of
    the two sets of charges.

[18]

The respondent argues that if there was an error in conducting a single
    trial of the adult and young offender charges, the convictions on the two
    remaining
YCJA
convictions can be saved under the
Criminal Codes

proviso
, s. 686(1)(b)(iv). As
    we have concluded that the convictions on both the youth and adult indictments
    must also be set aside on other grounds, we find it unnecessary to consider this
    argument. Nor is it necessary to consider the appellants submission that the error
    infected the adult convictions.

(2)

Similar fact evidence

[19]

The appellant conceded that the evidence on both indictments was
    admissible across counts on each indictment, but argued that evidence on the
    young offender counts should not be admitted as similar fact evidence on the
    adult counts and vice versa. The trial judge rejected that argument, and ruled
    that the evidence on all counts was admissible with respect to all other
    counts.

[20]

In addition, the trial judge admitted as similar fact evidence the evidence
    of a complaint of sexual abuse made by the appellants daughter S.C.
    (considered below), and the evidence of K.F., a friend of the appellants
    step-daughters, whose allegations the trial judge ultimately rejected.

[21]

In his reasons for judgment, the trial judge explained his similar fact
    ruling. After reviewing the principles established by
R. v. Arp
, [1998]
    3 SCR 339 and
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, he ruled
    as follows:

[32]    The factors I consider significant arising from both
    indictments are as follows:

1.       All of the
    female complainants except S.C. (teenager) were very young female children.

2.       There was
    a close connection or relationship to the accused. The young girls were all
    neighbours, a cousin, daughter, or step-daughters. These female children were
    all well known to the accused and as such none of these allegations reflected a
    random encounter with a stranger or a chance encounter with a young female
    child.

3.       Excepting
    L.C., all of these female children were in the presence of the accused because he
    was in a position of trust. He was the father, stepfather, babysitter, or
    person in authority (supervising adult with respect to K.F.).

4.       Any of the
    alleged sexual contacts were said to have been occasioned in places where the
    accused frequented or was accustomed to, such as his home, cottage (camp), or
    the childs home. Moreover, these sexual encounters occurred in familiar
    surroundings such as the complainants bedroom, the complainants bathroom, the
    complainants living room, the accuseds living room couch, sauna, cottage
    bedroom (bunkbed), accuseds hot tub, accuseds basement and the accuseds
    front vestibule.

5.       The sexual
    contact did not include sexual intercourse but fondling and touching of the
    female childs genitals including the insertion of a finger into their vaginas
    (two complainants, the allegation of his daughter S.C., and the witness K.F.),
    licking of their vaginas (two complainants), and in one instance with the
    witness, K.F., the assertion that he touched her all over her body.

6.       In
    addition, the accused with four complainants had them perform oral sex and with
    the same four complainants had them masturbate him.

7.       Two
    complainants were asked to observe him ejaculate (sauna and bathroom).

8.       No
    complainants indicated that they had engaged in any kissing.

9.       Two
    complainants in the Youth indictments indicated that they were warned that he
    would tell our parents I was bad and with respect to another complainant
    dont tell or youll be in trouble.

10.     The three
    complainants in the Youth indictments were childhood friends and two were
    childhood neighbours, while S.C. was a distant stepsister to the two
    complainants K.T. and J.T., and K.F. was J.T.s best friend.

[33]    In our [sic] assessment, these similar circumstances,
    details of allegations, and distinctive features, coupled with a paucity of any
    negative factors (see
Handy
) was the rationale for our decision to
    allow the cross-over in the allegations in the Youth indictment to prove the
    allegations in the Adult indictment and vice-versa and to allow the allegations
    of S.C. and her sworn written and videotaped statements and the Crowns
KGB
application to reflect similar fact circumstances with respect to both the
    adult and youth offences.

[22]

The trial judge noted, at para. 30, that defence counsel had submitted
    that evidence should not be admitted across indictments given the passage of 30
    years between the allegations contained within the youth and adult charges and,
    more importantly, because the accused was a young person at the time of the
    alleged youth offences, an adult at the time of the adult offences. However, before
    listing the similarities we have set out above, the trial judge failed to offer
    any explanation as to why he was rejecting this defence submission, except for
    the following, at para. 31:

I acknowledge that in considering the factors as reflected in
    the
Handy
decision, proximity of time would not be present in the
    allegations in the Youth indictment and the time frame as alleged in the Adult
    indictment.  Nevertheless, there are significant other factors that are present
    and compelling to allow for such a cross-over of similar acts.

[23]

While we recognize that a trial judges ruling on similar fact evidence
    attracts considerable deference on appeal, it is our view that the trial judge
    erred by failing to come to grips with the significance of the considerable
    passage of time, and the difference in circumstances between the two sets of
    charges.

[24]

More than 30 years had elapsed from the time of the young offender
    allegations. At the time of those allegations, the appellant was a young boy.
    In the case of 24 of the 26 charges he was not proven to be 14, and thus the
    law precludes the Crown from having those charges treated as adult offences. At
    the time of the adult allegations, the appellant was a mature adult approaching
    50 years of age. In our respectful view, given the passage of time and the very
    significant difference in the age of the appellant, it was incumbent on the
    trial judge to offer a more cogent explanation for the admission of the similar
    fact evidence between the indictments in the circumstances of this case. We
    agree with the appellant that it would be dangerous to infer from the actions
    of the young boy the likelihood of guilt of a mature adult. Equally, we find it
    difficult to see what light the actions of a mature adult shed upon allegations
    made against that individual when he was a young boy.

[25]

There were certainly similarities between the alleged acts of adult and
    young offender sexual impropriety. However, those similarities were not so
    striking or apparent to overcome the obvious problems posed by the passage of
    time, and the difficulty of attributing significance to the acts of an young
    offender when considering the guilt of an adult and vice versa.

[26]

We conclude, accordingly, that the trial judge erred in his similar fact
    ruling. In his reasons for conviction on the adult counts, the trial judge
    explicitly referred to the similar fact evidence from the young offender counts
    as supporting the convictions. While he did not make a similar statement with
    reference to the youth convictions, it can be inferred from the significance he
    makes of the similar fact ruling in his reasons for judgment that the improper
    admission of the similar fact evidence had an impact on those counts as well. In
    our view, the error in admitting the similar fact evidence requires that all of
    the convictions must be set aside.

(3)

Admission of the appellants daughters video-taped statement as similar
    fact evidence.

[27]

The Crown called the appellants natural born daughter, S.C., as part of
    the similar fact application. S.C. was asked about allegations of sexual
    impropriety that she had made against the appellant in 1995. The appellant had
    been charged, but when S.C. recanted at the preliminary inquiry, those charges
    were stayed by the Crown. Prior to the trial of the present charges, S.C. was
    provided with the transcript of a statement she had made to the police in 1995.
    S.C. then testified that the allegations of sexual impropriety on the part of
    the appellant she had made in the 1995 statement were not true. The Crown
    cross-examined S.C. on her statement, but she remained firm in denying its truthfulness.
    During this cross-examination, S.C. testified that she had never seen the video
    of her statement, and that she would like to see it in order to better answer
    Crown counsels questions. S.C. resided in Yukon and she returned there at the
    conclusion of her evidence. Although the Crown had received a copy of the video
    statement prior to her departure, the videotape had not yet reached the
    location of the trial. Thus, S.C. was never given an opportunity to view it.
    Subsequently the Crown played the video for the Court, and the trial judge
    allowed the Crowns
KGB
application to admit the video statement as
    evidence. In his judgment, the trial judge made findings as to S.C.s demeanour
    in the video when accepting the truth of her 1995 allegations over her trial
    testimony.

[28]

In our view, the trial judge erred in permitting the Crown to introduce
    S.Cs video statement in the circumstances outlined. S.C. disputed the truth of
    the statements she made in the video, and she should not have been deprived of
    the opportunity to view the video before it was admitted into evidence. More
    importantly, it was unfair for the trial judge to admit the video into evidence
    when the appellant was deprived of the opportunity to cross-examine S.C. on its
    contents. The appellants cross-examination of S.C. based on the transcript
    alone was insufficient, as the appellant was thus unable to question S.C. on
    her demeanour in giving the statement. The Supreme Court of Canada has stressed
    the significance of the opportunity to cross-examine a witness fully on an
    out-of-court statement as a factor bearing on reliability when that
    out-of-court statement is proffered as evidence: see
R. v. Khelawon,
2006 SCC 57,

[2006] 2 S.C.R.
    787.

Disposition

[29]

In our view, the errors we have identified were significant and had the
    effect of depriving the appellant of a fair trial. Accordingly we allow the
    appeal, set aside the convictions, and direct a new trial.

[30]

We thank counsel for their assistance in this matter and, in particular,
    commend Ms. Direnfeld for her candour in bringing to the courts attention the
    problem with 24 of the 26 young offender counts.

Released: November 7, 2016

John Laskin J.A.

Robert J. Sharpe
    J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Puvtoski, 2016 ONCA 828

DATE: 20161104

DOCKET: C61964

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Milco Puvtoski

Appellant

Zachary Kerbel and Saman Wickramasinghe, for the
    appellant

Gillian Roberts, for the respondent

Heard: November 3, 2016

On appeal from the decision of the Summary Conviction
    Appeal Court dated March 11, 2016 by Justice F.E. McWatt of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on February 24,
    2015 by Justice L. Feldman of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal, and if leave is granted, appeals
    his conviction for drive over 80.

[2]

The main issue on appeal relates to police observations (alcohol smell)
    of the appellant after a motor vehicle accident and the appellants statements
    to the police at the accident scene. The appellant contends that his statements
    were statutorily compelled in violation of s. 7 of the
Charter
.
    Section 199 of the
Highway Traffic Act
, R.S.O. 1990, c. H. 8, imposes
    a duty on police to gather information about an accident for a report. The
    appellants statements to the police at the accident scene helped establish
    grounds for the police to make an approved screening device (ASD) demand.

[3]

The trial judge admitted evidence of the police officers observations
    about the smell of alcohol on the appellants breath. He said, at para. 87:

As well, I am of the view that the officers detection of the
    odour of alcohol on the way to the cruiser, prior to the eliciting of material
    information, reflects general observations an officer might make of the driver
    while carrying out other authorized duties and which are admissible [Cases and
    citations omitted].

[4]

The summary conviction appeal judge dismissed the appeal. She said, at
    para. 6:

First, the trial judge did not err when he found that the
    police officers detection of the smell of alcohol from the appellant did not
    breach his s. 7
Charter
rights against self-incrimination. The
    evidence of the odour did not result from any compulsion or direct
    participation designed to provide evidence and it did not stem from the
    appellant being directly compelled to participate in making the H.T.A. report
    [Cases and citations omitted].

[5]

The appellant seeks leave to appeal the summary conviction appeal
    judges decision.

[6]

The test for granting leave to appeal is whether a proposed appeal on a
    question of law (1) is of significance to the administration of justice beyond
    the case, and (2) whether there is a clear error of law: see
R. v. R.(R.)
,
    2008 ONCA 497.

[7]

In our view, neither component of the test is met on this appeal. Both
    courts below were aware of and applied the leading case,
R. v. White
,
    [1999] 2 S.C.R. 417. The appellants proposed appeal related to his statements
    at the accident scene. However, the appeal does not need to turn on this
    ground. As both courts below found, the smell of alcohol alone justified the
    ASD demand and the subsequent administration of the breathalyzer test. As well,
    the police officer on site had established the identity of the driver of the
    automobile without reliance on the appellants statements. On this issue, the
    two court decisions were clearly correct. They were also focussed on a narrow
    factual issue and are, therefore, not significant for the administration of
    justice beyond the case.

[8]

The application for leave to appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rafferty, 2016 ONCA 816

DATE: 20161103

DOCKET: C58090

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rafferty

Appellant

Paul Calarco and Stacy M. Nichols, for the appellant

Howard Leibovich and Randy Schwartz, for the respondent

Heard: October 24, 2016

On appeal from the conviction entered on May 11, 2012 by
    Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.

Huscroft J.A.:

[1]

Eight year-old Victoria Stafford was abducted on her way home from
    school and taken to a farmers field, where she was killed. Her body was
    discovered some months later, naked from the waist down, stuffed into garbage
    bags under a pile of rocks. She was found to have several broken ribs and
    several skull fractures.

[2]

Terri-Lynn McClintic pleaded guilty and was convicted of first degree
    murder. In the agreed statement of facts at her trial, she said that the
    appellant, Michael Rafferty, had sexually assaulted and killed the child. She
    said that the appellant covered the childs head with a garbage bag, stomped
    and kicked her while she was on the ground, then struck her several times in
    the head with a hammer.

[3]

The appellant pleaded not guilty to first degree murder; sexual assault
    causing bodily harm; and kidnapping. He did not testify at his trial. Contrary
    to the agreed statement of facts at her trial, at the appellants trial McClintic
    testified that she was the one who killed the child. The defence argued that
    McClintic orchestrated the kidnapping and killing; that there was no sexual
    assault; and that the appellant was neither a principal of nor a party to the
    crimes.

[4]

The appellant was convicted on all counts following an eight-week jury
    trial.

[5]

On appeal, the appellant argues, in essence, that he was a mere
    bystander at the scene when McClintic killed the child and that, at most, he is
    guilty of being an accessory after the fact to murder, an offence with which he
    was not charged. He also says that the trial judge made four errors that
    rendered his trial unfair.

[6]

Following the hearing of the appellants submissions, the panel did not
    consider it necessary to call on the respondent Crown. The appeal was dismissed
    with reasons to follow. These are the reasons.

Issues on appeal

[7]

The appellant submits that the trial judge erred in the following ways:

1.     By failing
    to charge the jury in his instructions on post-offence conduct on the defence
    of being an accessory after the fact;

2.     By
    permitting the Crown to lead a portion of the May 24 videotaped statement
    McClintic made to the police for the truth of its contents;

3.     By
    failing to warn the jury that it would be dangerous to convict solely on
    McClintics testimony; and

4.     By
    erroneously charging the jury on the appellants post-offence conduct of
    removing the backseat of his car.

[8]

I deal with each of these issues below.

(1)

Should the trial judge have charged the jury on the defence of being
    an accessory after the fact?

[9]

The appellant acknowledges that the trial judge properly charged the
    jury that the appellants post-offence conduct should not be used to conclude
    that he was guilty of all of the offences with which he was charged. However,
    he argues that the trial judges instruction on post-offence conduct was
    underinclusive: although he was not charged with being an accessory after the
    fact, it offered an alternative explanation for his actions following the
    murder. Accordingly, it was incumbent on the trial judge to instruct the jury that
    the appellants post-offence conduct was consistent with him being solely an
    accessory.

[10]

The appellant submits that the following evidence was consistent with his
    attempt to assist McClintic in avoiding apprehension and prosecution:

a)

obliterating tire tracks at the scene;

b)

washing the car and sanding its interior to eliminate evidence that the
    child had been in the car;

c)

concocting a false alibi for McClintic;

d)

telling McClintic to alter her appearance; and

e)

removing the backseat of the car.

[11]

I would reject this submission.

[12]

There was simply no evidence upon which a properly instructed jury
    acting reasonably could have found the appellant guilty solely of being an
    accessory. There was no evidential foundation  no air of reality  for the
    appellants submission that he was simply helping McClintic after she committed
    the offences. On the contrary, a large body of evidence contradicted this
    theory.

[13]

Moreover, it strains credulity to suppose that the appellant would have helped
    McClintic to cover up a heinous crime that she alone had committed. That the
    appellants trial counsel did not ask for an instruction on being an accessory
    after the fact speaks volumes in this regard.

(2)

Should McClintics May 24 statement to the police have been admitted for
    proof of its contents?

[14]

McClintic gave several statements to the police. In her statements given
    on April 12 and May 12, 2009, she denied any involvement in the crime. On May
    19, 2009, she gave a statement to a police polygraph examiner that was partly
    exculpatory, and partly inculpatory. However, on May 24, 2009, McClintic gave a
    statement in which she admitted her role in the kidnapping, sexual assault, and
    murder, but stated that the appellant killed the child.

[15]

McClintic testified at the appellants trial in a manner consistent with
    her May 24 statement with one important exception: she testified that she was
    the killer, not the appellant. She stated that she kicked the child and struck
    her with the hammer.

[16]

The Crown was permitted to cross-examine McClintic on her May 24
    statement pursuant to s. 9(2) of the
Canada Evidence Act
,

R.S.C.
    1985, c. C.5
and sought to have a portion of her statement admitted
    as a principled exception to the hearsay rule. The trial judge agreed, and the
    jury was allowed to consider a 58 minute portion of her statement along with
    her testimony at trial.

[17]

The appellant submits that the trial judge erred in admitting the May 24
    statement, and erred further in admitting only a portion of that statement,
    rather than the whole statement. He acknowledges that the statement meets the
    necessity requirement in the principled exception to the hearsay rule, but
    contends that the statement does not meet the threshold reliability
    requirement.

[18]

I disagree.

[19]

The trial judge carefully reviewed the
    criteria from
R. v. B.
    (KG.)
, [1993] 1 S.C.R. 740
and
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787
.
Although McClintics statement was made under
    caution, rather than under oath, it was made following consultation with her
    counsel, it was videotaped and, importantly, McClintic was available for full
    cross-examination.

[20]

This was not a case in which one co-accused sought to blame another
    co-accused. Nor is it a case in which a statement was made in an attempt to
    minimize involvement in a crime, in order to obtain a lesser sentence. As the
    trial judge noted, McClintics May 24 statement ensured her own conviction as a
    party to the offence of first degree murder.
R. v Youvarajah
, 2013 SCC
    41,

[2013] 2 S.C.R. 720, which was delivered subsequent to
    the trial judges ruling, is distinguishable on this and other bases.

[21]

It was reasonable for the trial judge to conclude that threshold reliability
    was established in these circumstances, and this conclusion is reinforced by a
    substantial body of confirmatory evidence. This evidence included, among other
    things, video of the abduction; video of the purchase of the hammer and garbage
    bags at Home Depot; and expert evidence from a pathologist as to the cause of
    death.

[22]

Finally, the trial judge considered his residual discretion to exclude
    the statement, but concluded that the probative value of the statement far
    outweighed any prejudicial effect that it may have. He found that the statement
    was given freely and there was no basis to conclude that its admission into
    evidence would bring the administration of justice into disrepute.

[23]

Although the trial judge admitted only a portion of the May 24 statement,
    he considered the statement as a whole. His decision to admit an edited portion
    was properly made in order to avoid prejudice to the appellant by the admission
    of a prior consistent statement. However, the appellant had unlimited ability
    to cross-examine McClintic. Admission of a portion of her May 24 statement
    cannot be said to have occasioned any prejudice to the appellant.

[24]

In summary, there is no basis to impugn the trial judges decision to
    admit McClintics May 24 statement into evidence. This ground of appeal must be
    rejected.

(3)

Should the trial judge have warned that it would be dangerous to convict solely on McClintic's testimony?

[25]

The appellant submits that the trial judge erred in not giving a
Vetrovec
warning to the jury  in failing to warn the jury that it would be dangerous to
    convict the appellant based solely on the testimony of McClintic:
R. v.
    Vetrovec
, [1982] 1 S.C.R. 811.

[26]

I disagree.

[27]

The difficulty with this submission is that the trial judge included a
Vetrovec
warning in his initial draft charge to the jury, but removed it at the request
    of the appellants trial counsel. The warning made clear that McClintic was an
    unsavoury witness, and among other things detailed her criminal background,
    history of violence, and confession to the murder. The draft also included
    reference to 14 items of independent evidence that potentially confirmed
    McClintics evidence.

[28]

When defence counsel objected to the
Vetrovec
warning, the trial
    judge offered to reduce the list of potentially confirmatory evidence to six
    items. However, appellants trial counsel asked that a
Vetrovec
warning
    not be given.

[29]

Plainly, counsels request was made in order to avoid the recitation of any
    of the substantial body of confirmatory evidence that would have had to
    accompany the
Vetrovec
warning. The trial judge understood that the
    request was made for tactical reasons, and having reviewed the law he decided
    that he should accede to counsels request and omit the
Vetrovec
warning. His decision to do so cannot now be impugned.

[30]

The appellant submits that responsibility to give a
Vetrovec
warning lies with the trial judge regardless of the position of the parties,
    and so it does. However, the decision to give the warning is discretionary in
    nature, as is the
content of the warning itself,
    and a trial judges exercise of this discretion is entitled to deference:
R. v. Brooks
,
    2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 2 and 18;
R. v. A.W.B
., 2015
    ONCA 185, [2015] O.J. No. 1407, at para. 40.

[31]

Although there will
    sometimes be cases in which a
Vetrovec
warning must be
    given, as Fish J. noted in
R. v. Khela
, 2009 SCC 4,
    [2009] 1 S.C.R. 104 at para. 5, in my view no such warning was required in this
    case.
Given the
    volume of confirmatory evidence, the trial judge reasonably concluded that
    there was no risk that the jury would convict based solely on the testimony of
    McClintic. That being so, the trial judge did not want to interfere with a
    tactical decision made by the appellants trial counsel who, as the trial judge
    noted, was very experienced and highly skilled.

[32]

The trial judge instructed the jury concerning McClintics criminal
    record and the use the jury could make of it in assessing her credibility, but
    gave no
Vetrovec
warning. He made no error in doing so, and there is no
    basis to interfere with the exercise of his discretion.

[33]

This ground of appeal must be rejected.

(4)

Did the trial judge err in charging the jury on the appellants post-offence
    conduct of removing the backseat of his car?

[34]

McClintic testified that, on the appellants instructions, she cut a
    bloodstained portion out of the backseat of the appellants car, and there was
    evidence that the backseat of the car was disposed of subsequent to the
    commission of the offences. The appellant submits that the trial judge erred in
    failing to instruct the jury that it could not use the removal of the backseat
    as evidence of post-offence conduct, unless it was sure that the backseat had
    been removed following the offences.

[35]

There is no merit to this submission.

[36]

The trial judge specifically instructed the jury that it had to decide
    whether it accepted the evidence as to what the appellant was alleged to have
    done following the offences. This instruction followed the trial judges
    reminder to the jury that two witnesses testified that the backseat of the
    appellants car was removed
prior to
the commission of the offences.

[37]

The trial judge went on to instruct the jury that if it did accept the
    evidence of post-offence conduct, it should be careful about drawing any
    incriminating inferences from this conduct without first considering whether
    there may be alternate explanations for it. The appellants submission that
    this instruction did not go far enough cannot be sustained. There could be no
    doubt as to the permissible use of post-offence conduct evidence following
    these instructions.

[38]

This ground of appeal must be rejected.

Conclusion

[39]

In summary, the trial judge made none of the errors that the appellant has
    raised. On the contrary, his handling of a difficult trial was, in our view,
    exemplary.

[40]

The appeal is dismissed.

Released: November 3, 2016 GH

Grant
    Huscroft J.A.

I
    agree John Laskin J.A.

I
    agree Robert J. Sharpe J.A.