COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kulasegaram, 2012 ONCA 455

DATE: 20120628

DOCKET: C53657

Rosenberg, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty The Queen

Appellant

and

Nallathamby Kulasegaram

Respondent

Peter Scrutton, for the appellant

H. David Locke and Glen Henderson, for the respondent

Heard and endorsed: June 26, 2012

On appeal from acquittal entered on April 6, 2011, by
    Justice Shaun Nakatsuru of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

This Crown appeal must be stayed. The Crown has failed to show that the
    effect of the ruling on the
Charter
motion was sufficiently important
    to the prosecution that the Crown was unable to continue. At the stage when the
    Crown has decided to offer no further evidence, there was no evidence about the
    application to the insurance company. As well, the Crown had withdrawn the
    charges against the co-accused so his accident report was potentially available
    and his evidence was potentially available. In any event, the Crown did not
    show that this evidence was not available and could not have supported the
    experts report. On this sparse record, allowing the Crown to proceed with this
    appeal would in effect be an impermissible appeal from an interlocutory order
    and therefore an abuse of process.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Lazo, 2012 ONCA
    389

DATE: 20120607

DOCKET: C53810

Gillese, Epstein and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Lazo

Appellant

Timothy E. Breen, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: May 25, 2012

On appeal from the sentence imposed on May 30, 2011 by
    Justice T. Culver of the Ontario Court of Justice, sitting without a jury.

Gillese J.A.:

[1]

Roger Lazo (the appellant) seeks leave to appeal against sentence.  The
    Crown concedes that the appeal should be allowed.  Both parties submit that the
    original joint submission in this matter should be accepted by this court.

[2]

The appellant was a first offender who sold $40 of crack cocaine to an
    undercover officer.  He was addicted to cocaine.  The appellant was approved by
    the Crown to participate in SURCH,
[1]
an addiction treatment rehabilitation program aimed at offenders whose criminal
    conduct is driven by drug addiction.  The program involved four months of individual
    counselling designed to address addictive behaviour and lifestyle.  It is based
    on: abstinence, development of healthy supports, addressing addictive
    behaviours and lifestyle, and developing healthy boundaries.

[3]

The appellant actively participated in the program and made positive
    steps towards rehabilitation.  He met the expectations that had been set for
    him as part of the program, including attending scheduled sessions and
    maintaining abstinence from cocaine.  He has abstained from drug use since his
    arrest.  He enjoys strong family support.

[4]

The appellant pleaded guilty to one count of trafficking in a controlled
    substance.  Upon his successful completion of the program, the Crown joined
    with defence counsel in recommending the imposition of an eight-month
    conditional sentence, with four months of house arrest with exceptions for employment.

[5]

At the sentencing hearing, the Crown conceded that the appellant was a
    cocaine addict who was trafficking at the street level.  There was no evidence
    to the contrary.

[6]

The sentencing judge rejected the joint submission and imposed a
    six-month jail term, followed by two years of probation.  He did so based on a
    mistaken finding that the appellant had admitted to being a middleman in the
    business of trafficking in cocaine.  This was a misapprehension of the
    evidence.  The agreed-on facts were that the appellant was an addict trafficker
    at street level.

[7]

Moreover, although the sentencing judge acknowledged the appellants
    participation in SURCH, in my view it was an error on his part to fail to
    consider that the appellant met the programs expectations and successfully
    completed it.  In so doing, the appellant demonstrated a genuine effort and
    progress toward his rehabilitation.  Furthermore, his steps towards rehabilitation
    will be encouraged by a conditional sentence, given the likelihood of incarceration
    in the event of a breach.

[8]

A joint submission should not be departed from unless it is contrary to
    the public interest and would bring the administration of justice into
    disrepute: see
R. v. Cerasuolo
(2001), 151 C.C.C. (3d) 445 (Ont. C.A.),
    at para. 8.  This is a high threshold.  Successful treatment of addiction is
    the best means of addressing drug crime. The public interest is served by
    diverting individuals in the appellants situation into drug treatment programs
    that address the addictions which fuel their criminal activity.

[9]

Accordingly, I would grant leave to appeal sentence and allow the appeal.
    I would accept the joint submission on sentence and, accordingly, vary the six-month
    jail term to an eight-month conditional sentence on the terms proposed at the
    sentencing hearing, less 11 days credit, for time already spent in custody.

Released: June 7, 2012 (E.E.G.)

E.E. Gillese
    J.A.

I agree G.J. Epstein J.A.

I agree E. Ducharme J.A.

[1]
Substance Use Related Crime, Hamilton.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Lewis, 2012
    ONCA 388

DATE: 20120608

DOCKET: C51858

Laskin and Blair JJ.A. and Brown R.S.J
. (ad
    hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Loraine Lewis

Appellant

R. Craig Bottomley, for the appellant

Milica Potrebic, for the respondent

Heard: February 16, 2012.

On appeal from the conviction entered by Justice T.A. Bielby
    of the Superior Court of Justice, sitting with a jury, on October 5, 2009.

R.A. Blair J.A.:

Overview

[1]

On June 16, 2007, the appellant arrived at Pearson International Airport
    in Toronto, carrying a suitcase containing two bottles of wine in which was
    dissolved a total of 862 grams of cocaine.  The cocaine had an estimated street
    value of between $25,000 (if sold at the kilogram or pound level) and $68,000
    (if sold at the gram level).

[2]

The main issue at trial was whether the appellant had knowledge of the
    cocaine in her suitcase.  She testified that she did not.

[3]

After a trial before Justice T.A. Bielby of the Superior Court of
    Justice and a jury, the appellant was convicted.  On appeal, she raises two
    arguments.  First, she submits that the trial judge erred in instructing the
    jurors on the issue of knowledge by failing to make clear that the issue to be
    determined by them was whether the appellant knew she was carrying an illegal
    drug, as opposed to any other substance that was illegal to import (excessive
    alcohol, in this case).  Secondly, she argues that the trial judge erred in admitting
    opinion evidence from a Border Services Inspector about the purchase of the
    appellants ticket and, further, in failing to instruct the jurors that they
    could not draw an adverse inference of guilt from how and when the ticket was
    purchased.

[4]

We did not call on counsel for the Crown with respect to the first issue,
    but, for the reasons that follow, I would allow the appeal and order a new
    trial on the second ground.

Facts

[5]

The appellant entered Canada on June 16, 2007, with a suitcase in which
    were found two bottles of wine, wrapped in newspaper and hand-taped at the
    neck.  Each bottle contained cocaine dissolved in liquid.  The cocaine weighed
    862 grams in total.

[6]

Sonia Bellissimo, a Border Services Inspector for the Canadian Border
    Services Agency, testified that on that day she was assigned to work as a
    primary officer at the first point of screening for passengers entering
    Canada.  Her role was to conduct a brief interview with passengers, referring
    some for secondary inspection where necessary.

[7]

The appellant was one of those passengers.  Her customs declaration card
    indicated that she was travelling alone as a visitor to Canada from Jamaica,
    that she would be remaining in Canada for 14 days, and that she was bringing
    one bottle of wine and one bottle of rum with her.  Inspector Bellissimo asked
    the appellant a few questions about her trip and became suspicious  she knew
    something was up  because she thought the appellants answers sounded
    rehearsed.  As she was trained to do, the Inspector asked the appellant two
    indicator questions: (i) When did you book your ticket? and (ii) How did you
    pay for your ticket?  The answers were: (i) Monday and (ii) with cash.
    Based on Inspector Bellissimos training and experience, these answers were
    sufficient to confirm her suspicions, and she referred the appellant for a
    secondary inspection.  It was during the secondary inspection that the cocaine
    was discovered.

[8]

Inspector Bellissimos testimony surrounding the indicator questions
    is what gives rise to the principal ground of appeal.  She was not qualified as
    an expert witness.  However, she was asked about what she had been taught in
    her training about cash paid tickets and short notice bookings and why the
    appellants responses to the two indicator questions raised a suspicion
    relating to drugs.  Inspector Bellissimos answers are at the crux of this
    appeal.  In summary, she said:

·

Typically, people dont tend to have $2,000 in cash to pay for a
    ticket

·

Cash payments do not leave a paper trail to the distributors of
    the drugs

·

Cash payments are usually drug money

·

They (i.e. the couriers) are not usually the ones paying for
    the ticket

·

Contrary to business and emergency trips, vacation tickets are
    generally purchased in advance because its cheaper and easier

·

In the appellants case, short notice was even more suspicious
    because the appellant is a teacher, and teachers know their summer vacation
    time well in advance.

[9]

The following passage from Inspector Bellissimos testimony is
    illustrative:

Q. And what were you taught in your
    training?  Youve already indicated  what were you taught in your training
    about cash payments?

A. Okay.  In our training we were taught that if the answer to
    that question is
cash, it is a major indicator for something suspicious.
    And actually they told us particularly drugs
, because the reason that our
    trainer gave us was actually a few reasons.  If I can reiterate, one, people
    ... tend not to pay for tickets with cash.  Two,
its usually drug money
.
    Three, theyre usually not the ones paying for the ticket.  So it usually comes
    as cash.  Four, they dont leave a paper trail ... back to the distributor of
    the drugs. [Emphasis added.]

[10]

Defence
    counsel objected to this evidence as inadmissible hearsay and opinion
    evidence.  She sought a limiting instruction, and it appears that both the trial
    judge and Crown counsel agreed that a limiting instruction would be
    appropriate.  However, the extent of the trial judges instruction in this
    regard was the following:

Another type of evidence is hearsay evidence.  Hearsay evidence
    references what a witness relates what someone else told him or her.
    Second-hand information if you like.  Hearsay evidence is generally not
    admissible to establish the truth of what the witness was in fact told.
    Hearsay evidence is admissible however to establish the witness state of mind
    at the relevant time.

For example, Border Officer Bellissimo testified as to what she
    was told in training by other officers.  This evidence cannot be used to
    establish what she was told was true, but to help understand what Officer Bellissimo
    did and said and why she did what she did and what she may have said or asked.
    It helps us to understand her state of mind on June 16
th
, 2007, when
    she had the encounter with Ms. Lewis.

Analysis

Ground One

[11]

I
    would not give effect to the first ground of appeal outlined above.  As noted,
    we did not call on counsel for the Crown to respond on that issue.

[12]

R.
    v. Blondin
(1970), 2 C.C.C. (2d) 118 (B.C.C.A), affd (1971), 4 C.C.C.
    (2d) 566 (S.C.C.), established that the
mens rea
for the offence of
    importing requires knowledge that the substance is a narcotic (now known as a
    controlled substance), although not necessarily knowledge of the exact type
    of narcotic.  Thus, in
R. v. Burgess
, [1970] 3 C.C.C. 268 (Ont. C.A.),
    it mattered not that the accused believed the substance in his possession was
    hashish rather than opium, since possession of both was prohibited by statute.

[13]

Here,
    the trial judge instructed the jury that simply put, the law is that no person
    shall import into Canada any controlled substance.  As a matter of law, cocaine
    is a controlled substance.  Importation of cocaine into Canada is therefore, a
    criminal offence.  The fact that the trial judge used the terms controlled
    substance, illegal substance and illegal drug from time to time, when
    explaining the elements of the offence could only be understood to refer to
    cocaine in the context of the charge, read as a whole: see also
R. v.
    Rashidi-Alavije,
2007 ONCA 712, 229 O.A.C. 365.

[14]

The
    argument that the jury may somehow have been confused into thinking that the
    reference to an illegal substance might refer to an allegation that the
    appellant was illegally bringing an excess of alcohol into the country, and,
    therefore, that they could convict on that basis, is simply fanciful on this record,
    in my view.  It would have been impossible for the jury to be confused as to
    the substance at issue, particularly in light of the trial judges clear
    instructions on the elements of knowledge under s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.

[15]

There
    is no merit to this ground of appeal.

Ground
    Two

[16]

There
    is merit in the appellants second ground of appeal, however.

[17]

Inspector
    Bellissimos testimony about the significance of cash payments for tickets and
    short notice ticketing was not admissible.

[18]

The
    Crown seeks to support the admissibility of the evidence as an exception to the
    hearsay rule in order to show the inspectors state of mind and to explain the
    sequence of events, the questions asked and the responses given by the appellant
    at the time.  The Crown also argues that the evidence was admissible as part of
    the narrative in order to explain the unfolding of events.

[19]

I
    accept neither of these submissions.

[20]

The
    appellant did not contest the legality of the search of her bags at the
    airport, nor did she attack the legality of her arrest.  The only thing that
    was relevant about the Bellissimo interview with the appellant was that, as a
    result of what transpired, Inspector Bellissimo felt that a secondary
    inspection was called for and she referred the appellant to another inspector
    for that purpose.  The cocaine was then discovered.  Inspector Bellissimos
    state of mind was unimportant and never in issue.  The evidence is simply
    irrelevant, and therefore inadmissible, in that context.

[21]

For
    similar reasons, the evidence did not help to explain the evolution of relevant
    events and for that reason was neither necessary nor helpful as part of the
    narrative.  It was irrelevant testimony highly prejudicial to the appellant.
    The only reason the Crown wished to have the evidence introduced as part of the
    narrative was to lend credence to its position that the appellant was running
    drugs across the border.

[22]

Although
    the Crown disavows any intention of relying on the Bellissimo testimony as opinion
    evidence, and did not seek to qualify the Inspector as an expert, the practical
    reality is that the impugned testimony was opinion evidence.  Moreover, it was
    opinion evidence clothed with the additional aura  and therefore credibility
    of a border services official, who would be seen by the jury to be
    knowledgeable, experienced and
trained
in dealing with situations
    involving people seeking to bring drugs into the country: see
R. v. Graat,
[1982] 2 S.C.R. 819, at p. 840.  I do not accept the contention that Inspector
    Bellissimos evidence on the issue of cash payments and the purchase of tickets
    on short notice was the type of evidence that members of the jury would know
    from their own life experience and common sense.  It was a particularized type
    of information relating to international drug importing, falling within the
    knowledge of people working in that area and beyond the ken of ordinary jurors.

[23]

While
    there may be situations were a properly qualified expert could give such
    evidence, no attempt was made to qualify Inspector Bellissimo to do so, and, as
    noted above, the evidence was highly prejudicial to the appellant.  The only
    significant issue at play during the trial was whether the appellant knew that
    the wine bottles contained a controlled substance.  The gist of Inspector
    Bellissimos testimony with respect to the cash payments and last-minute
    bookings for tickets was that the appellant used drug money (inferentially
    from her distributor) in order to buy her ticket for cash so that she wouldnt
    leave a paper trail back to that distributor  in short, that the appellant
    was a courier.  It is a small step from the acceptance of that evidence to the
    conclusion that the appellant knew about the cocaine in the bottles.

[24]

The
    trial judge and Crown counsel appear to have recognized that a limiting
    instruction regarding the use to which the jury could put the evidence, once it
    was in, was called for.  Respectfully, in my view, the instruction given by the
    trial judge was inadequate for the task (assuming for these purposes that the
    evidence was admissible, which, for the reasons outlined above, I conclude it
    was not).

[25]

The
    trial judge gave a general instruction on hearsay evidence, pointing out that
    it is generally not admissible to establish the truth of what the witness was
    in fact told, but indicating that hearsay evidence is admissible to establish
    the witness state of mind at the relevant time.  To repeat the passage cited
    earlier in these reasons, he then went on to say:

For example, Border Officer Bellissimo testified as to what she
    was told in training by other officers.  This evidence cannot be used to
    establish what she was told was true, but to help understand what Officer
    Bellissimo did and said and why she did what she did and what she may have said
    or asked.  It helps us to understand her state of mind on June 16
th
,
    2007, when she had the encounter with Ms. Lewis.

[26]

This
    limiting instruction on the use of hearsay was necessary and helpful, but the
    admonition that the jurors could not take what Inspector Bellissimos trainers
    had told her for the truth of those statements did not go far enough, in my
    opinion.  Here, there was a real risk that the jury would infer from the
    evidence that because the appellant had bought her ticket on short notice and
    with cash, as drug couriers frequently do, she was more likely to have been
    knowingly involved in the importing scheme and, therefore, more likely to have
    known that the wine bottles in her suitcase contained a controlled substance.
    A stronger direction was called for in order to avert that risk.

[27]

The
    appellant also argues that the trial judge erred in admitting Inspector
    Bellissimos testimony that the answers of the appellant appeared to be
    rehearsed and that this helped trigger the Inspectors suspicions.  I would
    not give effect to this argument.  Inspector Bellissimos testimony in this
    regard was non-expert opinion evidence.  Non-experts have been permitted to
    testify on a number of matters in respect of which a person of ordinary
    intelligence may be permitted to give evidence based on his or her personal
    knowledge.  A non-expert witness may testify in the form of an opinion if by
    doing so he or she is able more accurately to express the facts he or she
    perceived: see
R. v. Graat,

supra
.  Accordingly, just as police officers are entitled to
    relate their observations that a driver appeared to them to be inebriated, a
    customs officer in Inspector Bellissimos position should be entitled to relay
    her observations about the manner in which a person responds to questions,
    based on the officers experience, it seems to me.

[28]

Finally,
    the Crown argues that even if we conclude that the trial judge erred in
    admitting Inspector Bellissimos evidence on these issues, or in his
    instructions to the jury with respect to that evidence, the Court should apply
    the proviso contained in s. 686(1)(b)(iii) of the
Criminal Code
and
    dismiss the appeal on the basis that there has been no substantial wrong or
    miscarriage of justice.  I agree that the prosecution presented a very strong
    case against the appellant, leaving Inspector Bellissimos impugned evidence
    aside.  Given what I view to be the considerably prejudicial nature of that
    evidence  as outlined above  however, I am not persuaded that the jurors
    would inevitably have come to a conclusion of guilt absent that evidence.

[29]

I
    would not apply the proviso in the circumstances of this case.

Disposition

[30]

For
    the foregoing reasons, then, I would allow the appeal and order a new trial.

R.A. Blair J.A.

I agree John Laskin
    J.A.

I agree Brown R.S.J
.
    (ad hoc)

Released: June 8, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Marin-Ariza, 2012
    ONCA 385

DATE: 20120607

DOCKET: C51989 and C51552

Goudge, MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yovanny Marin-Ariza and Luis Sanin

Appellants

Brian Snell, for the appellant Yovanny Marin-Ariza

Frances Brennan, for the appellant Luis
    Sanin

Thomas Lemon and Peter M. Campbell, for the respondent

Heard: February 28, 2012

On appeal from the conviction entered on November 19,
    2009 by Justice T. David Little of the Superior Court of Justice, sitting with
    a jury.

Goudge J.A.:

INTRODUCTION

[1]

On August 23, 2006, the appellant Sanin was charged with importing
    heroin and conspiring with his co-appellant Marin-Ariza to import heroin.  The
    next day, Marin-Ariza was charged with the same offences.  On November 19,
    2009, both were convicted as charged by a judge and jury.  Marin-Ariza was
    sentenced to eight years imprisonment.  Sanin was sentenced to five years in
    prison.  Both men appeal their convictions.

[2]

The charges arose when a package containing heroin was delivered to the
    apartment of Carlos Cuadra.  Cuadra told a police officer that Marin-Ariza had
    arranged for the importation of this package, and had forced him to accept the
    package at his apartment.  Sanin came to his apartment shortly thereafter to
    pick up the package.  Cuadras evidence was central to the Crowns case.  Both
    accused testified and denied the allegations.  The credibility of these three
    witnesses was thus critical, and was the fundamental issue at trial.

[3]

The appellants argue that the charge to the jury was fatally flawed in a
    number of respects.

[4]

I have focused on three of these.  The appellants say that the charge
    gave the jury almost no guidance in deciding the central issue of credibility
    and indeed was in error in the little help that was provided.  They also argue
    that the trial judge erred in telling the jury that a juror holding a contrary
    view to the other 11 jurors should reconsider his or her position.  Finally
    they argue that the charge failed to assist the jury by separately identifying
    the evidence that could link each appellant to the alleged conspiracy.

[5]

For the reasons that follow, I agree with these submissions.  I conclude
    that the cumulative effect of the failings in the charge means that the
    appellants did not receive a fair trial. I would allow the appeal and direct a
    new trial.

THE FACTS

[6]

In August 2006, the police arranged for the controlled delivery of a
    package to Cuadras apartment.  It contained a disassembled bath spa, and a
    crudely forged receipt purporting to show the purchase of a bath spa from a
    Home Hardware in London, Ontario. The original receipt from which the forgery
    was derived had a phone number on it that had been Marin-Arizas home number
    two years earlier.  The package also contained three bags of heroin totally 433
    grams and shipping documents showing that the package had been sent from
    Venezuela addressed to Jimmy Galicia in London, Ontario.  Galacia lived in the
    apartment with Cuadra and his common-law wife.

[7]

On August 23, 2006, Cuadras wife was sitting outside the apartment
    talking to an acquaintance.  The acquaintance testified that Cuadras wife told
    her that she was waiting for a package containing cocaine or something from
    which to make cocaine.

[8]

A police officer posing as a delivery man arrived with the package.
    Cuadras wife signed for it and took it to the apartment.  After Cuadra
    returned home, the police raided the apartment and arrested Cuadra for
    conspiring to import heroin.  Cuadra asked to speak to a police officer privately.
    He told the officer that he and his wife were not involved, but that
    Marin-Ariza was responsible for shipping the package. He said Marin-Ariza told
    him the package was on its way and that he had no choice but to receive it.

[9]

Shortly thereafter, Sanin arrived at the apartment, explaining that he
    was there to provide a moving estimate.  Cuadra identified him as the pick-up
    guy.  He too was immediately arrested.

[10]

Cuadra
    and his wife gave statements to the police at the police station.  They were
    then released without being charged. Because the recording equipment
    malfunctioned, there was no record of their statements.  Marin-Ariza was
    arrested the next day.  Both appellants were then charged with these two
    offences.

[11]

At
    trial, Cuadras evidence was, as the trial judge said, the crux of the Crowns
    case.  He testified that on one occasion, he could not remember exactly when,
    he met both appellants at a Tim Hortons. Marin-Ariza said that he was
    trafficking drugs and asked if Cuadra knew anyone who could bring drugs across
    the border.  Cuadra said that Sanin was mostly agreeing, but did not say much
    on this occasion.  Cuadra also said that almost a year earlier, he agreed to
    allow Marin-Ariza to use Galacias name on packages although he did not tell Galacia.

[12]

Cuadra
    testified that the package that arrived on August 23, 2006, was the third that
    Marin-Ariza had sent to his address.  The first never arrived because
    Marin-Ariza arranged for someone to pick it up from the courier, although he
    later paid Cuadra $200.  The second package was picked up by Cuadra at
    Marin-Arizas request and when he gave it over to Marin-Ariza, the latter said
    that he had been ripped off because the package contained a book but no
    cocaine.  Cuadra testified that he told Marin-Ariza he did not want to be
    involved in drugs, but was told that a third package was already on its way.

[13]

The
    police testified that at the apartment Cuadras cell-phone rang at one point,
    and Cuadra said that it was probably Marin-Ariza. Cuadra answered and had a
    conversation partly in Spanish that the police could not understand. Shortly
    thereafter, Sanin knocked on the door and Cuadra told the police that it was
    Marin-Arizas pick-up guy.  In addition, there was evidence from telephone
    records of a number of calls in late July and early August 2006, between
    Marin-Ariza and Sanin, and between Marin-Ariza and Cuadra, but none between
    Sanin and Cuadra.

[14]

The
    appellants both testified in their own defence. They denied any involvement
    with drugs or the shipment of them, or meeting Cuadra at Tim Hortons.
    Marin-Ariza said he knew Cuadra because he was a customer at the meat market
    where Cuadra worked, and they had also operated a sausage cart together for a
    short time.  He knew Sanin because their wives were friends.  Sanin testified
    that he worked for a moving company and took on extra moving jobs on his own
    time.  He said he had gone to the apartment at Marin-Arizas request to provide
    a moving estimate and had met Cuadra only once, at the sausage cart.

ANALYSIS

[15]

The
    appellants first argument focuses on the way the charge addressed
    credibility.  The Crowns case rested on the evidence of Cuadra.  The defence
    rested on the evidence of Marin-Ariza and Sanin.  The jurys central task was
    to assess the credibility of these witnesses.  In this case it was therefore
    important that the trial judge provide some guidance to the jury in addressing
    this issue.  In my opinion, the charge in this regard came up significantly
    short in several respects.

[16]

To
    begin with, the trial judge gave the jury almost no assistance in assessing the
    evidence of an individual witness.  In its totality, it was as follows:

The way to do it really, I think, is to talk about this
    witness.  Did you believe the witness? Yes. Why? No? Why? Work on it that way.

[17]

There
    was nothing, for example, about considering whether a witness has a reason not
    to tell the truth or about the limitations of demeanour, both of which could
    well have mattered in this case.  While appellate courts are reluctant to interfere
    with this aspect of a jury charge, in the circumstances here, this fell short.

[18]

Moreover,
    the guidance that was given was erroneous in one respect.  It told the jury
    that they could believe or disbelieve a witness.  Rather, it should have been
    made clear to the jury that they could believe all, some or none of any
    witness evidence.

[19]

Related
    to this was the trial judges failure to instruct the jury that the principle
    of reasonable doubt applies to the issue of credibility.  As Cory J. said, in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742, in a case where credibility is important,
    as it was here, that instruction is essential.  He said this at p. 757:

In a case where credibility is important, the trial judge must
    instruct the jury that the rule of reasonable doubt applies to that
    issue.  The trial judge should instruct the jury that they need not firmly
    believe or disbelieve any witness or set of witnesses.

[20]

In
    addition, in the context of the evidence in this case, the instruction quoted
    above encouraged the jury to choose between the evidence of Cuadra and the
    evidence of the appellants.  Implicit in the instruction quoted above, is an
    invitation to the jury to accept the evidence of Cuadra or reject it, and vice
    versa for the evidence of the appellants.  A jury cannot approach its
    fact-finding task by choosing one version over the other.

[21]

This
    invitation to choose one version over the other was made explicit at later
    points in the charge where the trial judge said:

You have two conflicting stories. Who is telling the truth and
    who had time to think up the story?

[22]

Shortly
    thereafter, this instruction was repeated:

The issue you have is who do you believe in this case?

[23]

Yet
    another flaw in the charge relating to credibility occurred in the
Vetrovec
warning given concerning Cuadra.  The Crown does not contest the necessity of
    such a warning.

[24]

In
    my view, the warning fell short in two respects. In explaining to the jury why
    Cuadras evidence required special scrutiny, the trial judge simply said,
    Cuadra may well be involved in this.  On these facts that is an inadequately
    bland description of Cuadras strong motive to lie to the police to avoid his
    own prosecution.  Indeed, on any view of the evidence, Cuadra was involved.
    The need for the
Vetrovec
warning was the concern over whether he was
    the one importing heroin rather than the appellants, and was lying to save his
    own skin.

[25]

In
    addition, the charge failed to properly explain the kind of evidence that the
    jury could look to in order to corroborate Cuadras evidence.  In the main
    charge, the trial judge incorrectly told the jury that they could look to
    evidence emanating from Cuadra and to all the supporting evidence. A recharge
    following counsels objection properly clarified that corroborating evidence
    could not come from Cuadra, but was confused about what could provide
    corroboration:

So when you are looking for other evidence, you have to think
    about the names on the receipts at the store and you would have to think about
    the phone call  I dont know what all you have to think about  but you would
    have to have that rather than saying that let us look at Cuadras evidence and
    then say is it supported by something else, not by something that emanates from
    him...

[26]

The
    reference to a phone call was confusing because it could have been taken to be
    the one received by Cuadra in the apartment, which was evidence that did
    emanate from Cuadra.  The reference to not knowing what all the jury has to
    think about as possible corroboration was confusing because it could have been
    taken to permit them to refer to any evidence as corroboration, which was incorrect.

[27]

In
    summary, credibility was the critical issue in this case.  The jurys
    fundamental task was to assess Cuadras evidence and that of the appellants.
    The cumulative effect of the inadequacies I have described meant that the
    charge fell short of giving the jury the necessary guidance to perform this
    task.

[28]

The
    appellants second argument is that the trial judge erred in inviting a juror
    faced with 11 colleagues holding the contrary view to reconsider his or her
    position.

[29]

The
    error was described by this court in
R. v. Gabie (D.)
(1997), 98
    O.A.C. 75 and most recently in
R. v. Vivian
,

2012 ONCA 324.  In
Gabie (D.)
the trial
    judge said this in exhorting the jury:

If you happen to be in a minority, maybe the -- I don't want to
    know what size the minority is, large or small, but if you happen to be in a
    minority, would you be prepared to reconsider your positions in view of the
    expressed view of the majority?  It may be good sense in doing so, and the
    minority does not have to agree with the majority.  There's no question
    about that.

[30]

This
    court held at para. 9, that this constitutes a serious error:

The second exhortation contained the additional serious error
    of advising only the minority to reconsider their views.  In
R. v. G.
    (R.M.)
(1996), 110 C.C.C. (3d) 26 (S.C.C.) Cory J. explained that such
    instructions risk introducing irrelevant factors into the jurys deliberations
    and coercing some members of the jury to agree with the majority despite their
    own genuinely held doubts.

[31]

In
    this case, albeit in the charge itself rather than an exhortation, the trial
    judge fell into the same error given Cory J.s explanation in
R. v. G.
    (R.M.)
of the problem this kind of language creates.  I do not think that
    the damage is lessened when it occurs in the main charge rather than in an
    exhortation.  The language used in the charge in this case gives rise to this very
    problem. Indeed it implies that it is abnormal for a juror to maintain a
    genuinely held view in the face of contrary opinions:

However, on the other side of that is, if 11 normal guys think
    one way, and you think the other way, have a look in the mirror and see why it
    is, see if there has got to be some reason for it.

[32]

The
    appellants third argument addresses the way the trial judge dealt with the
    charge of conspiring to import heroin.

[33]

The
    trial judge had ruled that because of the wording of the indictment, the Crown
    had to prove that the appellants conspired with each other, so that if one
    appellant was acquitted of this charge, the other appellant must also be
    acquitted of the charge. The Crown did not contest this at trial or on appeal.

[34]

Against
    this backdrop, the appellants argue that the trial judge erred by failing to separately
    review for the jury the evidence linking each appellant to a conspiracy to
    import heroin.

[35]

I
    agree with this submission.  The strength of the evidence linking Sanin to a
    conspiracy was considerably weaker than that for Marin-Ariza.  It was limited
    to the phone records showing a number of calls between the appellants, Cuadras
    evidence of the meeting at Tim Hortons in which Sanin played almost no role,
    the phone call said to be from Marin-Ariza, and Sanins arrival thereafter with
    the backpack.

[36]

The
    evidence against Marin-Ariza was stronger. It included the same phone records,
    but also phone records of calls between Marin-Ariza and Cuadra.  Cuadras
    evidence also spoke to the greater involvement of Marin-Ariza, including
    particularly, his role at Tim Hortons and all his previous interactions with
    Cuadra.

[37]

Since
    the evidence linking one appellant to a conspiracy to import heroin was
    considerably weaker than that linking the other appellant, and since failure to
    prove one of these linkages beyond a reasonable doubt meant acquittal for both
    appellants, the trial judge should have separately reviewed the evidence against
    each appellant on this issue: see
R. v. Nadarajah
, 2009 ONCA 118, 242
    C.C.C. (3d) 215.

[38]

In
    summary therefore I conclude that in the three ways I have described, the
    charge fell short.  While each standing alone would not warrant setting aside
    the convictions, their cumulative effect was sufficient to conclude that the
    appellants did not receive a fair trial.

[39]

This
    was far from an overwhelming case for the Crown.  It is not one that warrants
    the application of the proviso. In the result I would set aside the convictions
    and order a new trial.

Released: June 7, 2012 (S.T.G.)

S.T. Goudge J.A.

I agree. J.C. MacPherson
    J.A.

I agree. R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Marsales, 2012 ONCA 456

DATE:  20120626

DOCKET: C52881

Doherty, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John D. Marsales and Jonathan David R. Marsales

Appellants

Charles Wagman, for the appellants

Sarah Shaikh, for the respondent

Heard:  June 22, 2012

On appeal from the conviction entered on October 15, 2010
    by Justice Lalonde of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

On the admissibility of the certificates point, we are satisfied that
    the trial judges findings of fact were not unreasonable.  On these findings,
    the certificates were clearly admissible.

[2]

With respect to the W.D. point, we find that the reasons were thorough
    and well thought out.  They include a specific and correct reference to W.D.
    and an application of that principle to the facts as found by the trial judge.

[3]

The appeals are dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McDonald, 2012
    ONCA 379

DATE: 20120606

DOCKET: C52136

Feldman, Armstrong JJ.A and Himel J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Mackenzie McDonald

Appellant

John H. Hale and Anne Marie McElroy for the appellant

Lisa Joyal for the respondent

Heard: December 8, 2011

On appeal from the conviction entered on January 15, 2010
    by Justice Douglas M. Belch of the Superior Court, sitting with a jury.

Himel J. (
ad hoc
):

I.     Overview

[1]

The appellant appeals his conviction for
    aggravated assault and asks that it be set aside and a new trial ordered.  He
    argues that the trial judge did not properly instruct the jury on the defences
    of consent and self-defence.  For the reasons that follow, I find that the
    trial judge erred in not allowing the defence of consent to be put to the jury
    for their consideration.  Accordingly, I would allow the appeal and order a new
    trial.

II.    Background

[2]

On September 27, 2008, the appellant, who
    was 19 years old at the time, and two friends drove to Kingston from Ottawa to
    take part in the annual Homecoming weekend festivities at Queens University.
    After spending Saturday evening with friends, the appellant went to the Subway
    restaurant to get something to eat before going to bed.  It was almost 2:00
    a.m. and the place was packed.  Darren Gibson and Gerard Traverse were in
    Kingston for the weekend doing renovations at the Canadian Tire store.  They
    also went to the Subway restaurant late that night to get something to eat.

[3]

There were approximately 30 to 40 people
    in line at the restaurant.  Mr. Gibson entered the restaurant and went to the
    front of the line, taking a position in front of some people who were ahead of
    the appellant.  The appellant, who had been waiting for approximately 30
    minutes, told Mr. Gibson to go to the back of the line but Mr. Gibson ignored
    him.  The appellant put his right hand on Mr. Gibsons left shoulder and told
    him to get to the back of the line. Mr. Gibson grabbed the appellants right
    arm with both his hands.  The appellant tried to get free but could not as Mr.
    Gibson would not release his arm.  The appellant pulled his arm back and forth
    trying to break Mr. Gibsons hold.  The two men were struggling with each
    other.  The appellant managed to pull his arm and tuck Mr. Gibsons head under
    his right arm in a chokehold while Mr. Gibson wrapped his arms around the
    appellants waist and held on.  Another patron began filming the incident with
    his cell phone just after the physical confrontation began.

[4]

The appellant rotated to face the back of
    the line and attempted to move Mr. Gibson towards the front door.  As Mr.
    Gibson began to let go, the appellant released him by lifting up the arm that
    had been around his head and neck.  Mr. Gibson fell backwards, hitting his head
    on the hard tile floor.  The appellant left the Subway restaurant immediately.
    He heard later that Mr. Gibson had been seriously injured.

[5]

The appellant learned through his friends
    that the police were trying to identify who had injured Mr. Gibson.  The
    appellant surrendered himself and gave a lengthy videotaped statement to
    police.  He was arrested on a charge of aggravated assault.

[6]

Mr. Gibson suffered life-threatening
    injuries including a fractured skull.  He was in a coma for several days and has
    not regained normal brain functioning. His abilities to speak, read, drive a
    car, and care for his son are compromised.  He cannot work.

[7]

The jury found Mr. McDonald guilty of
    aggravated assault.  The trial judge sentenced him to a period of imprisonment of
    two years less a day, followed by three years probation.  He also made an
    order authorizing a DNA analysis and an order under s. 109 of the
Criminal
    Code
prohibiting the possession of any
    firearm for a period of 10 years.  The appellant appeals the conviction only.

III.
The Evidence at Trial

[8]

As a result of the brain injury, Mr. Gibson was unable to relate details
    of the incident.  His co-worker Gerard Traverse did not see the incident.  He
    said, it all happened so quick. I mean were talking 10 to 15 seconds.  He
    heard Mr. Gibsons head hit the ground and said the place cleared out.  He
    described the appellant as very, very aggressive, very very loudhe was
    putting on a show. Damian Hedlin, a Subway employee, saw a crowd gather and
    walked over.  He observed that the appellant had Mr. Gibson in a headlock; he
    saw the appellant release Mr. Gibson and Mr. Gibson fall to the ground.  He had
    not heard any words exchanged between the two men and did not see how the fight
    started. He said that the appellant did not push Mr. Gibson or apply any other
    force; he released him from the hold and he fell to the ground.  Mr. Hedlin
    called 911 for assistance.

[9]

Justin Patterson, who had applied first
    aid, did not see how the fight started.  He saw Mr. Gibson leaning forward
    while bent at the waist in a chokehold, which lasted about 10 to 15 seconds and
    then fall backwards.  He said, somehow the victim fell backwards and hit his
    head on the floor.

[10]

Stefan Zalesky was standing near the front of the line
    when the two men came in and cut into the line.  He said that Mr. McDonald
    objected and there was a shoving match.  He testified that the appellant was
    swearing and started a verbal confrontation and shoved first.  Mr. Zalesky
    pulled out his camera from his pocket when the shoving started and began
    filming the incident when Mr. Gibson was already in a headlock.  He described
    the headlock as a wrestling move, pretty much to choke someone out, to make
    them pass out.  The headlock lasted about 10 seconds.  He said that the
    younger man had thrown the older man to the ground; however, he also said, you
    can call it dropping too.  Mr. Zalesky said that he believed that the older
    man didnt want to fight.

[11]

Jameson Christopher Holman was in the Subway
    restaurant waiting to order food when he noticed a scuffle break out: it was
    kind of like a jostling, pushing and shoving  He said that he saw the
    appellant immobilize Mr. Gibson in a mixed martial arts type headlock before
    lifting up gently and then dropping the victim.  He did not see who started
    the pushing, but described the appellant as the aggressor as he was significantly
    more aggressive compared to the victim.  He said that the appellant had picked
    him up slightly and pushed him away, and that the fall was not violent but
    unfortunately the floor was very hard.

[12]

Scott Paulseth was standing in line at the restaurant
    with friends when he noticed that Mr. Gibson and Mr. Traverse had come in and
    were standing to the side of the line up.  The next time he turned around, he
    saw that Mr. Gibson and Mr. Traverse were standing in front of Mr. McDonald.
    He did not see how the fight started but saw the appellant had Mr. Gibson in a
    headlock.  He said that the altercation did not appear to be unsafe, that
    neither party appeared to be a threat to the other, and that the headlock definitely
    did not appear to be dangerous.  Then he heard a thud, a loud noise.  The
    confrontation took less than 20 seconds.  Although he did not see who initiated
    contact, he believed Mr. Gibson to be the aggressor.

[13]

Detective Steven Koopman testified that police are
    prohibited from using a hold called a carotid restraint or any hold around
    the neck except when there is a threat of serious bodily harm or death.

[14]

The appellant testified that he was not looking for a
    fight that night.  He said he did not do anything deliberately to cause Mr.
    Gibson to become unconscious and was not trained in martial arts, wrestling or
    any other technique that could render someone unconscious.  When he let Mr.
    Gibson go, he did not intend for him to hit the ground.  He did not realize
    that Mr. Gibson was unconscious.  He left the Subway restaurant not knowing
    that Mr. Gibson had been injured.  He hurried out because he was afraid that Mr.
    Gibson would get up and come after him.  In his statement to Detective Koopman,
    Mr. McDonald said he thought that the falling backwards was a joke.  The
    appellants friend William Roantree testified that Mr. Gibson had started the
    fight by grabbing the appellants arm with his two hands and that nothing that
    the appellant did looked dangerous or too harmful.

[15]

The appellant is now 21 years old and a part-time
    student at Carleton University.  He had been working at Scotiabank at the time
    of the incident but was unable to continue with that job because of this
    charge.  He has no criminal record. At trial, he called good character evidence
    concerning his background.   On the issue of violence, the character evidence was
    that he had a reputation of being very balanced, even handed, and respectful
    of othersvery measured.

[16]

During the hearing of the appeal, this court viewed
    the video which Mr. Zalesky had taken of the incident and which was introduced
    as an exhibit at trial.  The portion of the incident captured lasted between
    eight to ten seconds.  It shows Mr. Gibson bent over at the waist, with his
    head faced towards the ground and his hands on Mr. McDonalds waist and
    buttocks.

IV.
The Charge to the Jury and the Issue of Consent

[17]

At trial, the appellant took the position that the
    defences of consent and self-defence should be put to the jury.  The appellant
    argued at the pre-charge conference that the defence of consent is available
    even where serious bodily harm is inflicted as long as the accused did not
    intentionally cause the bodily harm.  Counsel took the position that there was
    evidence that Mr. Gibson had consented to fight with the appellant.  After the
    appellant placed his hand on Mr. Gibsons shoulder, Mr. Gibson grabbed the
    appellants arm and would not let go.  Mr. Gibson also wrapped his arms around
    the appellants waist.  The appellant contended that Mr. Gibson had engaged
    consensually in the struggle, that there was nothing inherently dangerous in
    applying a headlock for five to ten seconds, and that the appellant had not
    intended to cause harm nor was he reckless.  On this evidence, it was
    submitted, a defence of consent should have been left with the jury.

[18]

The trial judge would not charge the jury on a defence
    of consent as it related to the offence of aggravated assault.  He charged the
    jury according to the law outlined by the Supreme Court of Canada in
R.
    v. Jobidon
,
[1991] 2 S.C.R 714.  In that
    case, two men were involved in a consent fist fight which resulted in the
    victim being taken to hospital in a coma.  The trial judge found that the
    accused did not intend to kill or cause serious bodily harm; however, he hit
    the victim as hard as he could.  The Supreme Court of Canada upheld the
    conviction on manslaughter imposed by the Court of Appeal.  The case discusses
    the policy reasons for drawing the line on vitiating consent for consensual
    fist fights between adults and discusses the role of consent in the criminal
    offence of assault.  The court was mindful not to overextend the application of
    the principle by criminalizing activities that were never intended to be
    captured by the assault provisions of the
Criminal Code
.

[19]

Applying
Jobidon
, the trial judge instructed the jury to disregard the
    defence of consent as he was of the view that it was not available on a charge
    of aggravated assault.  However, he said it was available as a defence on a
    charge of simple assault.  His instructions to the jury were as follows:

Now in his jury address defence counsel suggested you were
    required to consider whether Mr. Gibson consented to this bodily harm. He did
    point out that it is my instruction on the law that you must follow, and my
    instructions to you on the law is that with respect to aggravated assault you
    do not consider consent in your determination of this charge.

Consent does not apply with aggravated assault, consent does
    apply with assault ...

[20]

The trial judge also referenced the issue of consent
    in the decision tree which he handed to the members of the jury.  He then
    reiterated his instructions and said:

A couple other items that I am going to point out, I have
    already dealt with the issue of consent, that there cannot be consent to
    aggravated assault but there could be consent to assault.  Remember to keep
    that different in your consideration.

Counsel for the
    respondent agreed with the charge to the jury on the issue of consent.

[21]

On appeal, counsel for the appellant takes the position
    that
R. v. Paice
, [2005] 1S.C.R.
    339 and
R. v. Quashie,
[2005]
    O.J. No. 2694 (C.A.) have clarified that consent may be available as a defence
    on a charge of aggravated assault even where serious bodily harm is inflicted
    so long as the accused did not intentionally cause the serious bodily harm.

[22]

Counsel for the Crown relies on the case of
R.
    v. Godin
,
[1994] 2 S.C.R. 484, where the
    court held on a charge of aggravated assault that the Crown is not required to
    prove that the accused intended to cause bodily harm.  The court wrote that the
mens rea
for aggravated assault
    is objective foresight of bodily harm and that: It is not necessary that
    there be an intent to wound or maim or disfigure.  The Crown argues that the
mens
    rea
requirement means that, if vitiating
    consent requires proving that the accused had the intent to inflict serious
    bodily harm, then the
mens rea
for aggravated assault will be raised from objective to subjective, which
    cannot be correct.  Counsel for the Crown further submits that the cases of
Jobidon
and
Paice
should be interpreted in light of
Godin
and that any consent given by a complainant during
    the course of a fight will be vitiated if the Crown establishes that: (1) the
    accused intentionally applied force to the complainant; (2) the force the
    accused intentionally applied caused bodily harm to the complainant; and (3) a
    reasonable person, in the circumstances, would inevitably realize that the
    force the accused intentionally applied would put the complainant at risk of
    suffering some kind of bodily harm.

[23]

Crown counsel also takes the position that the defence
    at trial had admitted certain facts concerning the intentional application of
    force and causation but contested the issue of objective foresight.  As a
    result, the trial judge instructed that jury concerning this element of the
    offence of aggravated assault and said that they needed to decide:

Would a reasonable person, in the circumstances inevitably
    realize that the force McDonald intentionally applied put Gibson at risk of
    suffering some kind of bodily harm although not necessarily serious bodily harm
    or the precise kind of harm that Mr. Gibson suffered here?

[24]

The trial judge then instructed the jury that if they
    were not satisfied beyond a reasonable doubt that this element had been proven,
    they must then decide: ...did Gibson consent to the force that McDonald applied?
    This is the point at which the issue of consent was considered relevant. Crown
    counsel supports the order and the manner of the instruction.

V.
Analysis on the Issue of Consent

[25]

In
R. v. Paice
, there was a scuffle in a bar and the accused was challenged by the
    deceased to go outside and fight, which he did.  They exchanged threats and the
    deceased pushed the accused once or twice. The accused hit the deceased in the
    jaw, and the deceased fell backward and hit his head twice.  The accused then
    straddled the deceased and struck him twice more.  The deceased died as a
    result of his injuries.  The accused was charged with manslaughter.  He argued
    that the deceaseds consent to the fight vitiated criminal responsibility and
    that the trial judge used an incorrect test for determining whether consent is
    negated.  The trial judge held that the defence of consent did not apply if
    there was either intent to cause serious bodily harm or serious bodily harm was
    caused.

[26]

The Court of Appeal ordered a new trial.  The Supreme
    Court of Canada dismissed the appeal.  The court held that the trial judge
    erred in formulating the test in the alternative.  Rather, the court held at
    para. 18 that, in accordance with the
Jobidon
decision, consent cannot be nullified unless there is
    both intent to cause serious bodily harm and serious bodily harm is caused.
    The Supreme Court re-affirmed and refined the
Jobidon

decision and held that serious harm must be both
    intended and caused for consent to be vitiated.

[27]

In
R. v. Quashie
,
the Court of Appeal considered an appeal from
    conviction of the offences of sexual assault and sexual assault causing bodily
    harm where the complainant alleged that she had been sexually assaulted and
    that she was injured during the second assault.  The appellant argued that the
    trial judge erred in failing to charge the jury on the issue of consent in
    respect of the offence of aggravated or sexual assault causing bodily harm and
    submitted that there was no suggestion that the accused deliberately inflicted
    injury or pain to the complainant.  It was argued that whatever injuries the
    complainant suffered were incidental to sexual intercourse and that consent was
    an available defence.  Justice Gillese reviewed the decision in
R.
    v. Paice
and wrote at para. 57:

Based on the authorities, in my view, it was an error for the trial
    judge to fail to instruct the jury that in order for bodily harm to vitiate
    consent, they had to find both that the appellant had intended to inflict
    bodily harm on the complainant and that the appellant had caused her bodily
    harm.

[28]

Accordingly, following

Paice and Quashie
, consent is vitiated only when the accused intended
    to cause serious bodily harm and the accused caused serious bodily harm.  The
    defence of consent may, if the facts support it, be available in the context of
    a charge of aggravated assault.  In the case at bar, in my view, the trial
    judge erred by removing the defence of consent from the jury for its
    consideration on the charge of aggravated assault.

VI.
The Charge to the Jury and the Issue of Self-Defence

[29]

The trial judge instructed the jury on the issue of
    self-defence with reference to s. 37 of the
Criminal Code
.

[30]

Section 37 of the
Criminal Code
provides:

37(1) Every one is justified in using force to defend himself
    or any one under his protection from assault, if he uses no more force than is
    necessary to prevent the assault or the repetition of it.

(2)  Nothing in this section shall be deemed to justify the
    wilful infliction of any hurt or mischief that is excessive, having regard to
    the nature of the assault that the force used was intended to prevent.

[31]

The trial judge instructed the jury that the first
    question to be answered is, was McDonald unlawfully assaulted?  He explained
    this instruction as follows:

... first, it is essential, however, that McDonald was actually
    assaulted. It is not enough that McDonald believed that he might or would be
    assaulted by Gibson or some other person.  If you are satisfied beyond a
    reasonable doubt that McDonald was not unlawfully assaulted, McDonald was not
    actually in lawful self-defence, your consideration of self-defence would be at
    an end....

[32]

Defence counsel objected to the charge, arguing that
    s. 37 is focused on the accuseds perceptions in that moment regardless of who
    started or regardless of whether he was or was not being unlawfully assaulted.
     The trial judge refused to re-charge the jury that s. 37 does not require that
    the accused defend himself against an
actual
assault.

VII.
Analysis on the Issue of Self-Defence

[33]

Section 37 provides that a person may use force to
    defend himself if he uses no more force than is necessary to prevent the
    assault or the repetition of it.  Section 37 does not require a finding as to
    who the aggressor was: see
R. v. Grandin
(2001), 154 C.C.C. (3d) 408 (B.C.C.A.) at para. 54.

[34]

The trial judge was correct in charging the jury only
    on s. 37 and not on s. 34 as well, as s. 37 provides a broader scope of
    justification for the use of force and was more appropriate in the
    circumstances of this case: see
R. v. Pintar
(1996), 110 C.C.C. (3d) 402 Ont. (C.A.) at 416.

[35]

The defence of self-defence under s. 37, while it does
    not stipulate that the person must first have been unlawfully assaulted, does
    require that the person be defending himself or anyone under his protection
    from assault.  An assault is the intentional application of force or the
    attempt or threat to apply force to another person without that persons
    consent.  The person must reasonably believe that he is being unlawfully
    assaulted.  In those circumstances, he will be justified in using force to defend
    himself from an assault if he uses no more force than is necessary to prevent
    the assault.

[36]

When instructing the jury, the trial judge stated that
    the jury had to consider three issues.  First, they had to determine whether
    the appellant was unlawfully assaulted; without an unlawful assault, the
    defence of self-defence cannot be used.  Second, the jury was told to determine
    whether the appellant used force to defend himself.  Third, the jury was asked
    to determine whether this force was proportionate and necessary in relation to
    the threat, on a reasonable person standard.  When describing what constituted
    an unlawful assault for the purposes of the first prong of the test, the judge
    stated that, An unlawful assault is the intentional application of force by
    any means to the body of another person, here McDonald, without the other
    persons consent.  Later, in this portion of the charge, the judge reiterated
    that consent was not to be considered in the aggravated assault context.

[37]

The trial judge erred in setting out the issues for
    the jury to decide when he said that the jury had to consider whether the
    appellant had been unlawfully assaulted.  He said: first it is essential,
    however, that McDonald was actually assaulted...  The trial judge erred in
    failing to define assault to include the intentional application of force or
    the attempt or threat to apply force to another person without that persons
    consent.  The jury might well have believed that an
actual
touching was
    required, which would have been in error.

[38]

During deliberations, the jury asked the third
    question: What constitutes a persons consent to an unlawful assault?.  In
    responding, the trial judge re-read s.37 of the
Criminal Code
and outlined three essential ingredients of self
    defence as:

... first of all, that the accused used force.  I do not
    believe the jury will have any difficulty with that.  Secondly, that the force
    used was to defend himself from assault, which means not only physical contact
    but the attempt or threat of physical contact or application of force. Finally,
    thirdly, that the force used was no more than necessary to prevent the assault
    or the repetition of it.

[39]

In
    re-charging the jury in this fashion, the trial judge corrected the original
    error on the self-defence to assault instruction.  Furthermore, it was not
    really in issue that the complainant grabbed the appellants arm and that is
    what caused the appellant to put him in a headlock.  The original error was
    corrected and was not of any real significance in the circumstances of this
    case.  The Supreme Court has said on a number of occasions that, while the
    trial judges charge to the jury was not perfect, it is adequate if it fulfills
    the function of instructions to explain the relevant law and so relate it to
    the evidence so that the jury may appreciate the issues or questions they must
    pass upon in order to render a verdict of guilty or not guilty: see
R. v.
    MacKay,
[2005] 3 S.C.R. 607 at para. 1 citing
Azoulay v. The Queen,
[1952] 2 S.C.R. 495, at p. 503; see also
R. v. Cooper
, [1993] 1 S.C.R.
    146 where Cory J. wrote at para. 43:

It has been said before but it bears repeating that it would be
    difficult if not impossible to find a perfect charge.  Directions to the jury
    need not, as a general rule, be endlessly dissected and subjected to minute
    scrutiny and criticism.  Rather the charge must be read as a whole.  The
    directions to the jury must, of course, set out the position of the Crown and
    defence, the legal issues involved and the evidence that may be applied in resolving
    the legal issues and ultimately in determining the guilt or innocence of the
    accused.  At the end of the day, the questions must be whether an appellate
    court is satisfied that the jurors would adequately understand the issues
    involved, the law relating to the charge the accused is facing, and the
    evidence they should consider in resolving the issues.  I am satisfied that in
    this case the charge meets all these basic requirements. Particularly, the law
    pertaining to the legal issues was correctly placed before the jury. Any errors
    were immediately and repeatedly corrected.

[40]

The
    appellate court is to consider the charge as a whole.  In
R. v. Layton,
[2009] 2 S.C.R. 540 the court said at para. 40:

The standard that a trial judges instructions are to be held
    is not perfection.  The accused is entitled to a properly instructed jury, not
    a perfectly instructed jury: see Jacquard, at para. 2.  It is the overall
    effect of the charge that matters.

[41]

While the overall charge on self-defence was not
    perfect, it was adequate in this case.  The issue of consent being available as
    a defence to assault as opposed to aggravated assault may have caused some
    confusion in the context of the judges charge on the issue of self-defence as
    the reason for the difference was not explained.  This arises from the jurys
    final question which was, What constitutes a persons consent to unlawful
    assault?  The verdict came in immediately after the answer was provided.

[42]

While the trial judge did not err in the charge to the
    jury on self-defence, the error on the defence of consent may have caused
    confusion in the minds of the jury on the self-defence issue as well.

VIII.   Conclusion

[43]

The failure to leave the defence of consent with the
    jury in the circumstances of this case was a fundamental error that went to the
    heart of the defence.  Accordingly, I would allow the appeal from conviction,
    set aside the verdict and order a new trial.

S. Himel J.

I agree K. Feldman
    J.A.

I agree R.P. Armstrong
    J.A.

Released: June 6, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Nguyen, 2012 ONCA 397

DATE: 20120608

DOCKET: C53423

Doherty, Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dung Ngoc Nguyen

Applicant (Appellant)

Kim Schofield, for the applicant (appellant)

Heather J. Graham, for the Attorney General of Canada
    and the Minister of Justice on behalf of the United States of America

Heard:  June 8, 2012

On appeal from the committal order of Justice Thorburn of
    the Superior Court of Justice, dated February 28, 2011.

APPEAL BOOK ENDORSEMENT

[1]

There was ample evidence to support the committal order.  The
    identification evidence came not just from the direct evidence of two
    accomplices, but from the circumstantial evidence linking the appellant to the
    name and address of the individual engaged in the drug trafficking with the two
    accomplices.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. O.W., 2012
    ONCA 372

DATE: 20120605

DOCKET: C54799

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

O.W.

Appellant

O.W., acting in person

Erin Dann, as duty counsel

Eliott Behar, for the respondent

Heard: May 14, 2012

On appeal from the conviction entered on June 29, 2009
    and the sentence imposed on June 29, 2009 by Justice Todd Ducharme of the Superior
    Court of Justice, sitting without a jury.

By the Court:

[1]

In June 2009, O.W. pleaded guilty to aggravated assault.  He received a
    four-year sentence less 21 months credit for pre-sentence custody.  He has now
    served the custodial portion of his sentence.

[2]

O.W. appeals his conviction on the sole ground that his plea of guilty
    was involuntary.  He asks this court to set aside his plea and order a new
    trial.  In support of his appeal, he seeks leave to introduce fresh evidence.

The Offence and the Plea

[3]

O.W. and his co-accused, Hutchinson, attacked the complainant over an
    unpaid drug debt.  The prosecution alleged that O.W. stabbed the complainant in
    the back three times and that Hutchinson hit the complainant in his face and
    upper body.

[4]

O.W. was represented by a lawyer during the plea proceedings.  Before
    pleading guilty he confirmed to the court and to his lawyer that he understood
    that he was waiving his right to a trial and that his plea was of his own free
    will.  After the plea, the Crown read into the record facts in support of the
    finding of guilt.

The Fresh Evidence

[5]

O.W. seeks to introduce as fresh evidence his own affidavit, on which he
    was extensively cross-examined, and the affidavit of a legal assistant, which
    appends a medical report.

[6]

In essence, O.W. claims that his plea was involuntary because Hutchinson
    allegedly threatened to kill him if he did not plead guilty.  He explained this
    threat as follows.

[7]

In mid-May 2009, about a month and a half before his guilty plea, O.W.
    was transferred from another institution to the Don Jail.  At the time,
    Hutchinson was also incarcerated at the Don Jail.  Both were on the same range,
    3C South.

[8]

O.W. claims that Hutchinson threatened to kill him unless he pleaded
    guilty for two reasons.  First, Hutchinson wanted O.W. to take the blame for
    the assault on the complainant to cover up his own involvement.  And second,
    Hutchinson knew O.W. was aware of his involvement in an unrelated murder and
    was concerned O.W. would speak to the police about it.  Hutchinson wanted O.W.
    to plead guilty so he would be deported and thus, would not provide any
    information to the police.

[9]

O.W. claims that while he was at the Don Jail, Hutchinson and several of
    his friends attacked him.  He suffered a swollen eye, a bloody nose and a cut
    to his face.  The medical report filed on his application confirms these
    injuries.

[10]

O.W.
    also claims that he was forced by Hutchinson to write the letter of apology
    that he tendered to the court at his sentencing hearing.  He maintains that
    another inmate gave him the letter and told him to copy it in his own
    handwriting.  O.W. says that he suspects the letter came from Hutchinson.

[11]

Finally
    O.W. acknowledges that he told the court he was pleading guilty of his own free
    will and that he signed written instructions to his lawyer to take a guilty
    plea.  However, he contends that he did not tell his lawyer the truth and that
    he had no choice but to plead guilty.  He says that he has no motive to falsify
    his evidence because he has served the custodial portion of his sentence, and
    is now simply on an immigration hold.

Discussion

[12]

O.W.
    has the onus to show on a balance of probabilities that his plea was
    involuntary.  We have considered his affidavit evidence and his
    cross-examination, and have concluded that his evidence is not sufficiently
    credible to satisfy his onus.  In reaching this conclusion, we have taken
    account of the following considerations.

(a)     The two reasons O.W. gave for why Hutchinson
    threatened to kill him if he did not plead guilty are not credible.  O.W.s
    claim that Hutchinson wanted him to plead guilty so he would take the blame for
    the assault is not credible because by the time O.W. pleaded guilty he knew
    that the charges against Hutchinson had been withdrawn.

O.W.s claim that Hutchinson wanted him to plead
    guilty so that he would be deported (and therefore not speak to the police) is
    not credible because O.W. was already subject to deportation as a result of
    receiving a penitentiary sentence for a previous offence.

(b)    The submission by O.W.s lawyer at the guilty
    plea proceedings revealed the real reason for O.W.s plea:  about five or six
    weeks before the trial date there was new disclosure, it was very damaging to
    the defence case.

(c)    O.W.s suggestion that his guilty plea was
    designed to cover-up Hutchinsons involvement in the offence is also undermined
    by the facts accepted by O.W. in support of his guilty plea.  These facts
    heavily implicated Hutchinson.

(d)    His letter tendered at the sentencing hearing
    expresses, in words that are very personal and quite moving, O.W.s remorse for
    the assault he inflicted on the complainant.  We do not accept that this
    letter, full of personal details, could have been written by a fellow inmate,
    much less an inmate who wanted O.W. falsely to plead guilty.

(e)     Although the medical report confirms O.W.s
    evidence that he was injured while at the Don Jail, it does not corroborate
    that those injuries were causally connected to the alleged death threat.

Thus, this case differs from this courts decision in
R.
    v. Easterbrook
(2005), 65 W.C.B. (2d) 2, on which O.W. relies.  In
Easterbrook
,
    this court did set aside a guilty plea on the ground that it was induced by a death
    threat and, therefore, was involuntary.   However, in that case, there was
    independent corroborating evidence of the death threat  an email to Mr.
    Easterbrooks wife.  Here, there is no corroborating evidence of the threat O.W.
    claims he received from Hutchinson.

Moreover, in his letter, O.W. explains why he was
    assaulted at the Don Jail:  regularly Im ganged and beaten for the assault
    that I committed on [the complainant].  This explanation has nothing to do
    with any alleged death threat from Hutchinson.

(f)      O.W.s professed lack of motive now to
    falsify his evidence about the involuntariness of his plea is a neutral
    consideration.  Although no motive is apparent, that does not mean one does not
    exist.  The record is insufficient to permit us to assess the reliability of O.W.s
    claim.

[13]

For
    these reasons taken together, O.W. has not shown on the balance of
    probabilities that his guilty plea was involuntary.  The application for leave
    to introduce fresh evidence and the appeal are dismissed.

Released: June 5, 2012

JL                                                                              John
    Laskin J.A.

E.A.
    Cronk J.A.

Sarah
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. O'Meara, 2012
    ONCA 420

DATE: 20120620

DOCKET: C53830

Laskin and Blair JJ.A. and Brown R.S.J. (
Ad Hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Terrance OMeara

Respondent

Peter Scrutton, for the appellant

Mark Halfyard, for the respondent

Heard: February 14, 2012

On appeal from the decision of the summary conviction appeal
    court dated May 16, 2011 by Justice C. MacDonald of the Superior Court of
    Justice, allowing the appeal from the conviction entered on October 18, 2010 by
    Justice L. Duchesneau-McLachlan of the Ontario Court of Justice.

Brown R.S.J. (
ad hoc
):

I.

INTRODUCTION

[1]

This is a Crown appeal from a successful defence summary conviction
    appeal.  The respondent was convicted at trial of operating a motor vehicle with
    a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of blood,
    contrary to s. 253(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46
    (over 80).

[2]

As noted, the respondent successfully appealed his conviction to the summary
    conviction appeal court.  The summary conviction appeal judge reversed the
    trial judge and entered an acquittal.  She held that the trial judge had erred
    in finding that there was circumstantial evidence that the approved instrument
    had analyzed the samples.  Without such evidence, the summary conviction appeal
    judge concluded that the presumption under s. 258(1)(c) of the
Criminal
    Code
was not available on the evidence before the trial judge.

[3]

The Crown seeks leave to appeal, and if leave is granted, appeals
    against the summary conviction appeal court judgment and asks this court to
    restore the conviction.

[4]

For the following reasons, I would grant leave to appeal, allow the
    appeal and restore the conviction.

II.

BACKGROUND

[5]

As the Crown submits, this was the most usual of drinking and driving
    trials.  The prosecution led evidence that the respondent was stopped at a ride
    check, smelled of alcohol, failed an approved screening device test, was
    arrested, and provided two samples of breath into an approved instrument at the
    police station that resulted in readings of more than double the legal limit.
    The defence did not challenge any of this evidence, raised no
Charter
issues with respect to the stop or right to counsel, and called no evidence.
    The respondent was convicted pursuant to s. 253(1)(b) of the
Criminal Code
on
    October 18, 2010 of over 80.  He received the minimum $1,000 fine and a 12
    month driving prohibition.

[6]

The respondent successfully appealed his conviction  The summary
    conviction appeal court judge held that the trial judge had erred in finding
    that there was circumstantial evidence that the approved instrument had
    analyzed the samples.

[7]

The Crown argues before this court that this was an error and submits
    that the trial judge correctly determined that the instruments readings are
    themselves circumstantial evidence of analysis.

[8]

It may be helpful to briefly summarize the facts and the decisions in
    the trial court and in the summary conviction appeal court below.

(i)

The Facts

[9]

On November 24, 2009, two O.P.P. officers were conducting RIDE stops on
    a highway near North Bay.  Upon pulling the respondents vehicle over, one of
    the officers smelled alcohol coming from the respondents breath when speaking
    with him.  The respondent said that he had been drinking the previous evening.

[10]

The
    officer gave the respondent an approved screening device demand.  The respondent
    registered a fail on his second attempt at providing a sample.  He was placed
    under arrest for over 80 and given an approved instrument demand.  The respondent
    was then transported to the station.  After the respondent consulted with duty
    counsel, an officer who was a qualified breath technician escorted the
    respondent into the breath room.

[11]

Once
    inside, the officer prepped the approved instrument which was an Intoxilyzer
    8000C.  He watched it perform its quality assurance processes, which involve self-diagnostic
    tests and calibration checks.  He verified that the alcohol standard solution
    was suitable, had been changed in the last 14 days, and that the temperature
    was in the appropriate range.  The officer concluded that the instrument was
    functioning properly and ready to take samples.

[12]

The
    respondent completed the first sample at 5:49 p.m.  He provided the sample
    directly into the instrument.  The officer reported that the first result was
    188 grams percent.  In the 22 minute interim between samples, he observed that
    the respondent had a strong stale odour of alcohol, red, glassy eyes, and a
    pasty, dry mouth.  The respondent provided a second sample directly into the
    instrument.  That sample resulted in a reading of 181 milligrams of alcohol
    per 100 millilitres of blood.  The officer then indicated that he needed to
    correct his earlier testimony and clarified:  The first sample I should have
    indicated was provided, and it registered a 188 milligrams of alcohol per 100
    millilitres of blood.

[13]

The
    officer explained that after the second sample was completed, the instrument
    conducted a final internal test.  That test indicated that both samples were
    suitable samples and that the instrument was functioning properly.

(ii)

The
    Trial Decision

[14]

The
    trial judge was satisfied that the officer had reasonable grounds to make an
    arrest and demand by virtue of the failed approved screening device test.  She
    also reasoned that, given evidence of an approved, duly tested instrument
    capable of conducting the required analysis, and a qualified technician, as
    far as Im concerned each sample of [the respondents] breath went through an
    analysis by means of the approved instrument.  Accordingly, the trial judge convicted
    the respondent.

(iii)

Summary Conviction Appeal Decision

[15]

At
    the summary conviction appeal, the respondent argued that the Crown had failed
    to meet one of the statutory preconditions for reliance on the results of the
    breath samples under s. 258(1)(c)(iv) of the
Criminal Code.
While
    acknowledging that there was evidence that a breath sample was received from
    the accused directly into an approved instrument, counsel for the respondent
    argued that there was no evidence that an analysis of the sample had been made
    by means of an approved instrument.  His point was that the breath technician
    did not testify that the instrument analyzed the samples and that this could
    not be proven by circumstantial evidence because it was a separate statutory
    condition.

[16]

At
    the summary conviction appeal, the Crown argued that, while the officer did not
    explicitly testify that the instrument analyzed the sample, this was not
    required because there was evidence that the process occurred and that the
    instrument provided a result.

[17]

In
    her reasons for decision, the summary conviction appeal judge held that in this
    case there was virtually no evidence to prove beyond a reasonable doubt that
    the samples were, in fact, analyzed as required by s. 258(1)(c)(iv) by the
    instrument.  She therefore allowed the appeal and entered an acquittal.

III.

ISSUES

[18]

The
    Crown advances three arguments on this appeal:

(i)      This is a
    proper case for leave to appeal to this court in summary conviction proceedings
    pursuant to s. 839 of the
Criminal Code
;

(ii)      The
    summary conviction appeal judge erred in law in finding that the statutory
    presumption found in s. 258(1)(c) of the
Criminal Code
was not
    available on the evidence in this case;

(iii)     The
    summary conviction appeal judge erred in law in failing to apply the correct
    standard of appellate review.

IV.

ANALYSIS

Issue 1:  Leave to Appeal

[19]

This
    court established in
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641,
    and has repeated numerous times since then, that leave to appeal pursuant to s.
    839 should only be granted in two distinct categories of cases:

(i)

Where the merits of the proposed question of law are arguable, even if
    not strong, and the proposed question of law has significance to the
    administration of justice that goes beyond the particular case.

(ii)

Where there appears to be a clear error even if it cannot be said that
    the error has significance to the administration of justice beyond the
    particular case.

[20]

Moreover,
    at para. 27 of
R.(R.)
, Doherty J.A. emphasized that access to this
    court for a second appeal should be limited to those cases in which the
    applicant can demonstrate some exceptional circumstance justifying a further
    appeal.

[21]

The
    Crown submits that several factors favour leave to appeal in this case.  To
    begin with, the Crown submits that its arguments for error are strong.  As
    well, the Crown submits drinking and driving offences have the highest trial
    rate of offences in the Ontario Court of Justice.  The evidence given by the
    breath technician in this case mirrors the evidence routinely given in over 80
    cases.

[22]

The
    Crown also submits that the effect of the trial judges decision is to impose
    an additional evidentiary burden on the Crown before it can rely on the
    presumption of identity under s. 258(1)(c) of the
Criminal

Code
.
    The Crown submits that the approach of the summary conviction appeal judge, if
    followed, has the potential to negatively affect many other cases.

[23]

In
    response, the respondent argues that the present case cannot be brought under
    either of the two permissible categories to warrant granting leave to this court.
    That is, its issues of law are not sufficiently meritorious, nor does it raise
    a significant question for the administration of the justice system.

[24]

I
    am persuaded that the issues raised in this appeal have significance to the
    administration of justice beyond the facts of this case.  For the reasons that
    follow,  I am of the view that the summary conviction appeal judge clearly
    erred in her view that the presumption of identity under s. 258(1)(c) of the
Criminal
    Code
was not available on the evidence before the trial judge. I am
    satisfied that, if left uncorrected, this error would have the potential to
    negatively affect many other over 80 cases.

[25]

As
    well, I think there is some significance to the fact that while this is the
    second appeal of this matter, it is the Crowns first appeal.  Unlike an order
    for a re-trial, the finality of the decision of the summary conviction appeal
    judge in this case meant that a further appeal was the only mechanism available
    to the Crown to review that outcome.

[26]

For
    these reasons I would, as I said previously, grant leave to appeal.

Issue 2:  Did the Summary Conviction
    Appeal Judge Err in Law in Finding that the Presumption in s. 258(1)(c) of the
Criminal
    Code
was not Available?

[27]

Section
    258(1)(c) of the
Criminal Code
creates what is commonly referred to as
    a presumption of identity.  This presumption, if applicable, relieves the
    Crown of the burden of proving that the accuseds blood alcohol level at the
    time of the offence was the same as it was at the time of testing.  Where this
    presumption is not available, the accuseds blood alcohol level at the time of
    the offence is normally proven by evidence from a toxicologist.

[28]

In
    order to rely on the presumption, the Crown must meet the statutory
    preconditions specified in s. 258(1)(c)(ii)-(iv) of the
Criminal Code
.
    The samples must be taken as soon as practicable, the first sample must be
    taken within two hours of driving, and there must be at least a 15 minute
    interval between samples (s. 258(1)(c)(ii)); the samples must be received from
    the accused directly into an approved container or into an approved instrument
    operated by a qualified technician (s. 258(1)(c)(iii)); and an analysis of
    each sample [must be] made by means of an approved instrument operated by a
    qualified technician (s. 258(1)(c)(iv)).

[29]

This
    court has made it clear that circumstantial evidence can establish the s. 258(1)(c)(ii)-(iv)
    conditions.  In
R. v. Mulroney
, 2009 ONCA 766, 248 C.C.C. (3d) 311, the
    issue was whether there was evidence to satisfy the s. 258(1)(c)(iii) condition
    that the breath sample be received directly into an approved instrument.  The summary
    conviction appeal court had allowed an appeal from conviction and ordered an
    acquittal after reasoning that, in the absence of evidence that the mouthpiece
    was connected to the instrument or that there was no intervening apparatus, it
    could not be inferred that the breath samples were provided directly into the
    approved instrument.  In allowing the Crowns appeal and restoring the
    conviction, Goudge J.A. held at paras. 20-21:

Here there was not just evidence that the breathalyser used was
    an approved instrument and a result was obtained.  Nor did the trial judge
    simply take judicial notice that this must mean that the breath sample was
    received directly into the instrument.  P.C. Fawcett testified that the
    instrument was designed to receive and analyze breath samples, that it appeared
    to be working properly, that the respondent blew into the mouth-piece of the
    instrument as instructed, and that this provided a suitable sample for
    analysis.  None of this evidence was contested by the respondent.

In my view, this was ample circumstantial evidence from which
    the trial judge could properly conclude as he did, namely that the respondents
    breath samples were received directly into the approved instrument in this
    case.

[30]

The
    main thrust of the Crowns argument on appeal to this court is that the trial
    judge was correct to find that there was sufficient evidence before her to
    conclude that the statutory presumption found in s. 258(1)(c) of the
Criminal
    Code
was available in this case.  The Crown submits that the summary
    conviction appeal judge erred in finding that there was no evidence before the
    trial judge to permit the presumption to be used.  Specifically, the Crown
    submits that the summary conviction appeal judge erred in holding that there
    was virtually no evidence to prove beyond a reasonable doubt that the breath
    samples of the respondent were in fact analyzed by the instrument as required
    by s. 258(1)(c)(iv) of the
Criminal Code
.  It is the submission of the
    Crown that the instruments results are themselves circumstantial evidence of
    analysis.

[31]

The
    respondent argues that compliance with the statutory presumptions under s.
    258(1)(c)(ii)-(iv) must be strictly construed where the Crown is relieved of
    the obligation of adducing expert evidence on the subject.  The respondent
    submits that in this case the officer did not provide any evidence on whether
    any analysis of the breath samples was conducted.

[32]

The
    respondent also submits that the Crown could have easily led evidence from the
    officer, who was a qualified breath technician, as to the workings of the
    approved instrument and how it analyzed the breath samples provided.  As well,
    the respondent submits that the Crown could have led evidence of analysis by
    entering the test record as an exhibit which is often done in over 80
    prosecutions.  The respondent argues that despite the ease of adducing this
    evidence, none of it was before the court.

[33]

I
    agree with the Crowns submissions on this issue.  This court held in
R. v.
    Labadie,
2011 ONCA 227, 105 O.R. (3d) 98, that it is an error of law to
    fail to apply an applicable statutory presumption.  In the instant case the
    trial judge relied on circumstantial evidence to infer that the samples were
    analyzed by an approved instrument and found that the presumption was
    applicable.  This inference was available.  The qualified breath technician
    testified that the breath samples were taken by an approved instrument (i.e. an
    Intoxilyzer 8000C); the approved instrument was in proper working order (as
    determined by a number of diagnostic tests); the respondent provided two
    suitable samples of his breath directly into the instrument; and the instrument
    produced results of 188 mg and 181 mg of alcohol in 100 ml of blood.  The
    breath technicians evidence on these points was not challenged at trial.

[34]

As
    explained by Robins J. in
R. v. Lightfoot
(1979),

2 M.V.R.
    113 (Ont. H.C.), at p. 120: an approved instrument is
by definition
.designed
    to perform a chemical analysis   (emphasis added).  In this case there was
    evidence that the breathalyser used was an approved instrument and that results
    were properly obtained.  None of this evidence was contested by the
    respondent.  In my view, there was ample circumstantial evidence from which the
    trial judge could properly conclude, as she did, that the respondents breath
    samples went through an analysis by means of an approved instrument.
    Admittedly, the breath technician did not specifically testify that the breathalyser
    instrument in question analyzed the accused breath samples.  However, that is a
    reasonable inference the trial judge could draw from the fact that the approved
    instrument provided results of the breath samples.

[35]

In
    my view, the summary conviction appeal judge erred in law in finding that the
    presumption in s. 258(1)(c) of the
Criminal Code
was not available in
    the circumstances of this case.

Issue 3:  Did the Summary
    Conviction Appeal Judge Err in Law in Failing to Apply the Correct Standard of
    Review?

[36]

Under
    s. 686(1)(a)(i) and s. 822(1) of the
Criminal Code,
the jurisdiction
    of the summary conviction appeal judge to review the finding as to sufficiency
    of the evidence is limited.  A summary conviction appeal judge is not entitled
    to retry the case or to substitute his or her own view of the evidence for that
    of the trial judge.  A summary conviction appeal judge has no basis upon which
    to interfere with a trial judges findings unless they are unreasonable or
    unsupported by the evidence:  see
R. v. Grosse
(1996), 29 O.R. (3d)
    785 (C.A.), at pp. 791-92.

[37]

In
    this case, there was ample circumstantial evidence from which the trial judge
    could properly conclude, as she did, that the respondents breath samples were
    analyzed by an approved instrument.

[38]

In
    my view, the summary conviction appeal judge exceeded the ambit of factual
    review permitted under s. 686(1)(a)(i) of the
Criminal Code
and
    thereby erred in law in overturning the findings of fact of the trial judge.

V.

CONCLUSION

[39]

For
    the foregoing reasons, I would grant leave to appeal, allow the appeal and
    restore the conviction and sentence.

Released: June 20, 2012                              M.F.
    Brown R.S.J. (ad hoc)

JL                                                                     I
    agree John Laskin J.A.

I
    agree R.A. Blair J.A.