COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fiorilli, 2016 ONCA 814

DATE: 20161101

DOCKET: M47129 (C58518)

MacPherson J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Michele Fiorilli

Applicant

Michele Fiorilli, acting in person

Erica Chozik, duty counsel

Hannah Freeman, for the respondent

Heard: October 4, 2016

MacPherson J.A.:

A.

introduction

[1]

This is an application for
    an order pursuant to s. 684(1) of the
Criminal Code
appointing counsel
    to represent the applicant in his appeal against his convictions for two counts
    of fraud over $5,000 contrary to s. 380(1)(a) of the
Code
.

B.

facts

[2]

The applicant was convicted
    of four counts of fraud over $5,000, following a judge alone trial before
    Trotter J. of the Superior Court of Justice. Two of those counts were
    subsequently stayed pursuant to the
Kienapple
principle. The frauds
    related to mortgages obtained on residential real estate properties. The
    applicant was alleged to have sold two residential properties at inflated
    prices to obtain a profit from mortgage funds advanced by the Royal Bank of
    Canada to two straw purchasers, who did not have the means to obtain the
    mortgages, on the basis of fraudulent mortgage applications.

[3]

The applicant filed a notice
    of appeal against conviction. His principal ground of appeal was ineffective assistance
    of counsel. His allegations were that trial counsel (1) failed to adequately
    read the disclosure and prepare for the case; (2) failed to properly
    cross-examine many of the Crown witnesses; (3) failed to let the applicant
    testify; (4) failed to call various additional defence witnesses; and (5)
    failed to bring an application for a stay because of significant pre-charge
    delay.

[4]

The applicant applied for
    legal aid. His initial application was refused. He appealed. In April 2014,
    Legal Aid Ontario dismissed the appeal, saying with respect to the appeal
    against conviction, the Reasons for Judgment do not indicate any error of law
    on the part of the trial judge.

[5]

The applicant applied for the
    appointment of counsel, pursuant to s. 684(1). In July 2015, Rouleau J.A. ordered
    a limited s. 684 appointment that was accepted by counsel John Kaldas to
    conduct examinations relating to the ineffective assistance of counsel ground
    of appeal. The applicant was examined in chief on December 18, 2015 and
    cross-examined on January 6, 2016. Trial counsel was examined in chief on February
    8, 2016 and cross-examined on February 8, April 25 and May 9, 2016. These
    examinations produced 636 pages of transcript.

[6]

The applicant then applied again
    for the appointment of counsel. On July 13, 2016, MacFarland J.A. dismissed the
    application. She was not persuaded that this was a complicated fraud case and explained
    that the applicant is an intelligent man who is well able to articulate the
    areas where he says the conduct of his trial counsel fell short and how those
    failures affected his ability to defend the charges. At the end of her
    endorsement, MacFarland J.A. said:

The dismissal of this application does not mean that Mr.
    Fiorilli will be without legal assistance. His appeal will be placed on the
    inmate sittings list of this court and he will have the assistance of duty
    counsel, an experienced well-qualified lawyer to assess the record and make
    submissions on his behalf.

[7]

Subsequent to MacFarland
    J.A.s decision, the Ontario Inmate Appeal Duty Counsel Program (the Program)
    determined that it will not provide assistance to the applicant on his appeal.
    Article 3.3 of the Programs Bylaw No. 1 provides:

3.3
Discretion
 The Corporation and its individual Members at all times retain the discretion
    as to whether to provide legal services or assistance on any particular case
    before the Court or to any particular appellant. Without limiting the
    generality of the foregoing, a Member may decide not to assist on a matter
    where that Member is of the view that:

(a)      it lacks merit or arguable grounds;

(b)      an appellant may not be indigent;

(c)
the matter is beyond the scope of what is reasonably
    expected of the Program
; or

(d)      for any other reason.

[Emphasis
    added.]

The Programs decision in this case was based on
    Article 3.3(c)  the matter is beyond the scope of what is reasonably expected
    of the Program.

[8]

The applicant now applies again
    for a s. 684 order to provide counsel for his appeal. The principal ground for
    the application this time is that there has been an important change in
    circumstances since his last application, namely, that the assistance of duty
    counsel presaged in MacFarland J.A.s endorsement is in fact not available for
    his appeal. The applicant will therefore be entirely without legal assistance for
    his appeal.

[9]

The Crown does not object to
    the applicant making this s. 684 application; however, it opposes the application
    on the merits.

C.

issue

[10]

The sole issue on the application is whether a s. 684 order should be
    made to provide legal assistance to the applicant on his appeal.

D.

analysis

[11]

Section 684(1) of the
Criminal Code
provides:

684
(1)
A court of appeal or a judge of that court may, at any time, assign
    counsel to act on behalf of an accused who is a party to an appeal or to
    proceedings preliminary or incidental to an appeal where, in the opinion of the
    court or judge, it appears desirable in the interests of justice that the
    accused should have legal assistance and where it appears that the accused has
    not sufficient means to obtain that assistance.

[12]

The leading case dealing with the interpretation of s. 684 is
R. v.
    Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.). In that case, Doherty
    J.A. said, at para. 20:

The interests of justice referred to in s. 684(1) must take
    cognizance of the broad access to appellate review contemplated by s. 675 and
    the wide remedial powers of the court of appeal set out in s. 686. Justice
    demands that an accused who appeals under s. 675 be afforded a meaningful
    opportunity to establish the merits of the grounds of appeal advanced by that
    appellant. That same interest also insists that the court be able to fully and
    properly exercise its broad jurisdiction at the conclusion of the appeal.
    Anything less is inconsistent with the statutory scheme created by Part XXI of
    the
Criminal Code
.

[13]

Doherty J.A. then identified two closely related principles that
    anchor the s. 684 inquiry. He said, at para. 21:

First, counsel must be appointed where an accused cannot
    effectively present his or her appeal without the help of a lawyer. Second,
    counsel must be appointed where the court cannot properly decide the appeal
    without the assistance of counsel. In most situations, both or neither
    principle will operate to require the appointment of counsel.

[14]

Against this backdrop, I turn to the questions that must be addressed in
    a s. 684 application. In
R. v. Staples
, 2016 ONCA 362, Gillese J.A.
    set out the relevant questions, at para. 34:

In deciding an application under s. 684(1), the court must
    consider three general questions:

1. Does the applicant have the means to hire counsel
    privately?

2. Has the applicant advanced arguable grounds of appeal?

3. Does the applicant have the ability to effectively
    advance his or her appeal without the assistance of counsel? In answering this
    question, the court should examine such matters as the complexity of the legal
    arguments to be advanced on appeal and the applicants ability to make legal
    argument in support of the grounds of appeal. [Citation omitted.]

[15]

I am satisfied that the applicant does not have sufficient means to
    obtain private legal assistance. I did not understand Crown counsel to suggest
    otherwise.

[16]

The Crown concedes that the applicants appeal is, at least in part,
    arguable.

[17]

The real issue on this application is whether the applicant has the
    ability to effectively advance his appeal without the assistance of counsel. In
    her endorsement, MacFarland J.A. answered this question in the affirmative.
    However, she explicitly noted that the applicant would have the assistance of
    duty counsel, an experienced well-qualified lawyer to assess the record and
    make submissions on his behalf.

[18]

In fact, duty counsel will not be able to assist the applicant with his
    appeal. This is not because duty counsel have examined the record and do not
    see any possible ground of appeal  a position regularly taken by duty counsel.
    Rather, it is because the Program has determined that it cannot assist the
    applicant because his appeal, in the words of Article 3.3(c) of the Programs
    Bylaw No. 1, is beyond the scope of what is reasonably expected of the
    Program. Put bluntly, the Program has determined that the applicants appeal
    is too big for it to handle.

[19]

I do not criticize the Programs decision in this case. On the contrary,
    I accept and respect it. In a very recent decision,
R. v. Lubin
, 2016
    ONCA 780, Feldman J.A. said this about the Program, at para. 18:

[T]he pro bono duty counsel program [is] run by senior members
    of the defence bar, in cooperation with the Crown and the court, to assist
    inmates who have been denied Legal Aid for their appeals. Members of the pro
    bono duty counsel roster appear on inmate sitting days in Toronto and Kingston
    to assist appellants who are incarcerated throughout Ontario and across Canada.
    The pro bono duty counsel program is run by volunteer members of the defence
    bar. Unlike the Legal Aid program, the pro bono duty counsel are not obligated
    to assist unrepresented litigants - they give their time as a public service in
    the best traditions of the bar. Their presence is not a substitute for
    fully-funded counsel, whether through Legal Aid or a s. 684 order, where
    circumstances warrant such assistance.

[20]

I would add this to Feldman J.A.s description of the duty counsel
    program. In my experience, it is rare for the Program to decline to provide
    assistance on the basis of Article 3.3(c) of the Bylaw. Duty counsel are not
    known to shy away from hard cases. On the contrary, as one of the duty counsel
    lawyers, Breese Davies, noted in a speech given at this years Justice Marc
    Rosenberg Symposium, defence counsel love a good challenge. Collectively, duty
    counsel devote hundreds of hours each year to ensuring that unrepresented
    appellants have meaningful access to appellate review. I think it is fair to
    say that committed and generous
pro bono
duty counsel in the inmate
    appeal stream treat inmates with the same diligence and professionalism as they
    do their own clients.

[21]

So what should be made of the Programs decision to not provide
    assistance to the applicant on his appeal because, in the Programs view, it is
    outside the scope of what is reasonably expected of the Program? This is
    obviously a change in circumstances not contemplated by MacFarland J.A., and
    therefore it is appropriate to consider it on this revised s. 684 application:
    see
R. v. Assoun
, 2002 NSCA 119, 208 N.S.R. (2d) 340, at paras. 11-12.

[22]

In my view, the Programs decision tips the balance of the
Bernardo
analysis in the applicants favour. The Programs decision is significant as it
    signals to this court that the applicants appeal is not as straightforward as
    it initially appeared to be. While the appeal is not legally complex (the test
    for ineffective assistance of counsel is well-established), in order to make
    the arguments necessary to advance the grounds of appeal raised, one must have
    an in-depth knowledge of the case and how the facts revealed by the record
    support the legal arguments that must be made. Given the volume of the record (approximately
    3,500 pages of disclosure, 300 pages of preliminary inquiry transcript, 280
    pages of trial transcript, and 636 pages of transcript of the post-trial
    examinations and cross-examinations of the applicant and his trial counsel),
    duty counsel cannot reasonably be expected to engage in a detailed review of
    it. Nor do I think that this would be a reasonable expectation of the applicant
    given his limited education (grade 9) and disability (dyslexia).

[23]

In addition, in my view the applicant will struggle, without any legal
    assistance whatsoever, to explain why or how his trial lawyers conduct
    constitutes incompetence. Assessing, for example, which Crown witnesses could
    have had their credibility fundamentally undermined and demonstrating exactly
    how trial counsel ought to have gone about this task requires not only detailed
    knowledge of the trial record but also a firm grasp of trial advocacy. In my
    view, the applicant, without the assistance of duty counsel, does not have the
    knowledge or experience necessary to identify and marshal the facts necessary
    to support the legal arguments he wishes to advance.

[24]

In summary, I emphasize two crucial contextual points. First, the Crown
    concedes that the appeal is, at least in part, arguable. Second, the Inmate
    Appeal Duty Counsel Program has properly exercised its discretion and decided
    not to provide assistance to the applicant because his appeal is too big to
    handle, beyond the scope of what is reasonably expected of the Program.

[25]

Against the backdrop of these two contextual factors, I return to the
    two-pronged
Bernardo
test. First, I do not think that the applicant
    can effectively present his appeal without the help of a lawyer. This is enough
    to dispose of the application. Second, although I cannot say definitively that
    the court cannot properly decide the appeal without the assistance of counsel,
    I do say that, given the extent of the record and the nature of the legal
    issues that will be raised on the appeal, the assistance of experienced
    criminal counsel will be of great assistance to the court.

E.

disposition

[26]

The application to appoint s. 684 counsel is granted. John Kaldas is
    appointed to represent the applicant on his appeal.

[27]

This judgment is to be provided to the Legal Aid Director. If the
    Director does not issue a certificate, the applicant will be represented by
    counsel appointed under s. 684(1) and counsels fees and disbursements shall be
    paid by the Attorney General under s. 684(2) of the
Criminal Code
, up
    to a maximum of 40 hours.

Released:  JM  NOV 1 2016

J.C. MacPherson
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grove, 2016 ONCA 824

DATE: 20161103

DOCKET: C57621

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Grove

Appellant

Jill Presser, for the appellant

Allyson Ratsoy, for the respondent

Heard: November 2, 2016

On appeal from the convictions entered on October 30,
    2012 by Justice J.A. Morneau of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from his convictions by Morneau J. of the Ontario
    Court of Justice for production of marijuana and possession of marijuana for
    the purpose of trafficking contrary to sections 1(1) and 5(2) of the
Controlled
    Drugs and Substances Act
(the CDSA).

[2]

The police executed a
CDSA
search warrant at the appellants
    farm. They found 2,925 marijuana plants in four of the propertys fields. In
    his police interview, the appellant denied any knowledge of the marijuana. He
    did not testify at trial.

[3]

On appeal, the appellant contends that the verdicts are unreasonable. He
    says that the Crown case was circumstantial and that guilt is not the only
    reasonable inference that can be drawn from the evidence before the court. He
    posits two alternative scenarios: the evidence at trial left open the
    reasonable inference that (i) the appellant did not know of the marijuana
    plants growing on his property, or (ii) a third party, the appellants son or
    Paul Galbraith, the owner of a backhoe found on the property, was responsible
    for the marijuana crop.

[4]

We do not accept these submissions. The evidence against the appellant
    was very strong. The marijuana was found on his farm. It was growing on four of
    his seven fields. There was a lot of it  almost 3,000 plants. The truck that
    had been equipped to water the plants was the appellants truck. It was found
    in one of the fields where the marijuana plants were growing.

[5]

In addition, the trial judge was entitled to rely on the testimony of
    the appellants neighbour who testified that he saw the appellant driving the
    truck with the water tank on his property within weeks of the day of his arrest.
    The neighbour also testified that the appellant met him several days after the
    police raid on the appellants property and told him that the police had taken
    his (the appellants) marijuana plants.

[6]

The appellant also argues that the trial judge erred in her assessment
    of his credibility and that of the appellants neighbour. We disagree.

[7]

The trial judge was alert to the factors bearing on the credibility and
    reliability of the appellants and the neighbours testimony. Her description
    of these factors in her reasons, albeit brief in some instances, confirms that
    she addressed the pertinent issues in making her credibility findings. We see
    no reversible error in her approach to these issues or in her findings, which
    attract deference from this court.

[8]

Taken together, the evidence relied on by the trial judge overwhelmingly
    supports her findings of guilt on the two charges. Her verdicts were entirely
    reasonable.

[9]

The appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Henry, 2016 ONCA 873

DATE: 20161117

DOCKET: C60620

MacPherson, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Delroy Henry

Appellant

Anne Marie Morphew, for the appellant

Nick Devlin, for the respondent

Heard: November 16, 2016

On appeal from the conviction entered on August 12, 2014
    and the sentence imposed on December 15, 2014 by Justice K. Barnes of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant, Delroy Henry, was convicted of four firearms offences,
    one count of possession of cocaine for the purpose of trafficking, and one
    count of fail to comply with recognizance (he pleaded guilty to this count)
    following a jury trial presided over by Barnes J. of the Superior Court of
    Justice. He received a global sentence of eight years imprisonment less
    pre-trial custody on a 1.5:1 basis, leaving a total of 57 months to serve. The
    appellant appeals both conviction and sentence.

[2]

The appellants first contention on the conviction appeal is that the
    trial judge erred by failing to instruct the jury with respect to the
    principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742, as they applied to
    the evidence of Tennika Bryce, the appellants girlfriend, and Denney Henry,
    the appellants brother.

[3]

We are not persuaded by this submission. Bryce testified that she could
    not say who possessed the gun, ammunition and cocaine found in her residence.
    Denney Henry testified that all these items belonged to him, not his brother (the
    appellant). In our view, the trial judge properly linked their testimony to the
    concept of reasonable doubt. Defence counsel did not seek an explicit
W.(D.)
instruction and made no complaints about its absence. In our view, such an
    instruction was not required in the circumstances of this case, especially in
    light of the fact that the testimony of Bryce (I dont know) and Denney Henry
    (its all mine) did not conflict: see
R. v. B.D.
, 2011 ONCA 51, at
    para. 114.

[4]

The appellants second submission is that the trial judge erred in his
    ruling on the
Charter
s. 8
voir dire
.

[5]

All of the firearms and drug charges flowed from a search warrant that
    the police executed at 85 Teal Crest Circle in Brampton. Tennika Bryce lived at
    this address. The appellant stayed over several nights a week; however, he
    lived at his fathers home. He did not have his own key to the Bryce residence
    although he sometimes borrowed her car and used, with Bryces permission, the residence
    key on the car key ring to access the Bryce residence.

[6]

Applying the leading case,
R. v. Edwards
, [1996] 1 S.C.R. 128, the
    trial judge held that the appellant did not have standing to challenge the
    search on the basis of s. 8 of the
Charter
. The appellant contends
    that the trial judge erred in his ruling. He submits that he was involved in a
    serious relationship with Bryce, he stayed overnight at the Bryce residence
    three or four nights a week, he had Bryces permission to enter the residence
    at any time, and he even had designated areas for his personal belongings in
    the master bedroom.

[7]

We do not accept this submission. The trial judge carefully reviewed the
    relevant evidence on the standing issue. The appellant was not a tenant at the
    Bryce home. He did not have his own house key. He lived with his father. He
    used another address for mail. He was not present when the search took place.
    He did not testify on the
voir dire
about any privacy interest he
    might have in relation to the subject property or its contents. All of this led
    the trial judge to conclude:

The cumulative effect of all the evidence leads me to conclude
    that Mr. Henry was a very privileged visitor. Mr. Henry has provided no
    evidence to indicate that he has a reasonable expectation of privacy and
    neither can such an inference be made from the evidence tendered. The evidence
    is silent on his subjective expectation.

We agree with this conclusion; it is consistent with
Edwards
.

[8]

On the sentence appeal, the appellant submits that the trial judge erred
    by not giving enhanced credit for pre-trial custody, beyond the 1.5:1 credit he
    gave, because the appellant was subject to particularly harsh conditions
    (extensive periods of lockdown) during his time at Maplehurst.

[9]

We are not persuaded by this submission. In this case, very experienced
    counsel agreed that the appellant should receive credit for pre-trial custody
    on a 1.5:1 basis. Moreover, defence counsel explicitly submitted that the
    lockdown factor might be considered by the trial judge in the context of the
    possibility of imposing concurrent sentences. Finally, as in
R. v. Duncan
,
    2016 ONCA 754, at para. 11, there was no evidence of any adverse effect
    flowing from the locked down conditions.

[10]

The appeal from conviction and sentence is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

David Watt J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.F., 2016 ONCA 900

DATE: 20161129

DOCKET: C60981

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.F.

Appellant

Alan Risen, for the appellant

Dena Bonnet, for the respondent

Heard: November 23, 2016

On appeal from the conviction entered on May 15, 2015 by
    Justice Clayton John Conlan of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The trial judge convicted the appellant of one count of sexual
    assault and sentenced him to 18 months incarceration. The sole issue at trial
    was consent; the appellant did not testify. He appeals his conviction and
    argues that
the trial judge made numerous errors
    in reaching his decision. We reject each of the appellants alleged errors.

[2]

First, the trial judge did not reverse the burden of proof on the
    central issue of consent. He correctly recited the Crowns burden of proof
    several times in his reasons and was acutely aware of the legal presumption of
    the appellants innocence. He specifically addressed the complainants
    flashback evidence and rejected it as reliable evidence that she was awake,
    correctly in our view. He considered and weighed that evidence in light of the
    case as a whole and did not improperly shift the burden of proof onto the
    defence.

[3]

Second, we do not agree that the trial judge failed to appreciate or
    adequately scrutinize the complainants evidence. He did precisely that and concluded
    that any inconsistencies were inconsequential. The question was whether or not
    the complainant was asleep at the relevant time and therefore did not consent
    to sex. The discrepancies raised by the appellant are of no assistance in that
    regard; the trial judges credibility assessment was entirely reasonable.

[4]

Third, the trial judge took the correct approach to assessing the
    remorse contained in the appellants statement to the police and letter of
    apology. He considered this evidence in connection with the rest of the
    evidence taken as a whole, as he should have. At para. 78 of his reasons, he
    properly concluded:

By itself, the statement of [the appellant] could not amount to
    proof beyond a reasonable doubt. It is simply one piece of the puzzle. To the
    extent that it is reliable, elaborated upon and qualified above, it is
    incriminating.

[5]

The appellant has not demonstrated any palpable and overriding error.

[6]

Finally, the verdict is not unreasonable. The complainant recalled all
    significant details of the evening up until she went to sleep. Upon awaking in
    the morning she immediately knew someone had had sex with her. The trial judge
    expressly followed this courts decision in
R. v. Garciacruz
,
2015 ONCA 27, 320 C.C.C.
    (3d) 414,

and gave reasons for why
    an explanation other than her having been asleep was not reasonable. Paragraphs
    91 and 92 of the trial judges reasons capture the essence of this case:

Put bluntly, aside from the fact that I find [the
    complainant] to have been a generally credible and reliable witness, there is
    no evidence to the contrary (aside from, perhaps, the flashbacks which I have
    already indicated cannot be relied upon).

That statement is not meant to suggest that the defence has any
    burden of proof, however, when the evidence from a credible and reliable
    witness is that she does not remember the sexual encounter because she was
    asleep, in the absence of anything that suggests otherwise, it is virtually
    inevitable that a finding of fact will be made that the complainant was asleep
    during the sex.

[7]

The grounds of appeal all constitute attacks on the trial judges
    findings of fact, to which this court owes deference. The appellant has not
    demonstrated that the trial judge made any palpable and overriding error, so
    the appeal must be dismissed.

H.S.
    LaForme J.A.

"Paul
    Rouleau J.A."

"David
    Brown J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Janjanin, 2016 ONCA 820

DATE: 20161103

DOCKET: C56994

Rouleau, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bogdan Janjanin

Appellant

Michael R. Peterson, for the appellant

Jennifer Conroy, for the respondent

Heard and released orally: October 27, 2016

On appeal from the sentence imposed on April 8, 2013 by
    Justice Theresa Maddalena of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

After an 18-day jury trial, the appellant was convicted of importing and
    possession for the purpose of trafficking cocaine. He was sentenced to a
    penitentiary term of 14 years.

[2]

The appellant seeks to appeal from his sentence. Although he concedes
    that it is within the applicable range, in his view, it ought to have been near
    the middle of the range of sentences for similar offences. He maintains that
    the sentencing judge erred in placing undue emphasis on the principles of
    denunciation and deterrence and did not give sufficient weight to the principle
    of rehabilitation or to the fact that the appellant was a first-time offender.

[3]

We do not give effect to this submission. The sentencing judge properly
    recognized that, in cases of importing large quantities of cocaine,
    denunciation of the conduct and deterrence of would-be offenders are paramount.
    Having done so, however, the sentencing judge also considered other relevant
    factors including the fact that, at the time of the offence, the appellant was only
    23 years old, that he was a first-time offender, and that he had a positive
    pre-sentence report.

[4]

The offence committed in this case was very serious. The appellant was
    the owner and operator of the transport truck he was driving when he was
    stopped at the Canadian border with 175 kilograms of cocaine on board. The amount
    of cocaine involved placed this at the higher level of seriousness for
    importation cases and warranted a very significant sentence.

[5]

In setting the sentence, the sentencing judge weighed all of the
    appropriate factors and exercised her discretion in a reasonable manner. She
    committed no error and, although the sentence is at the high end of the range
    for similar offences, it is not demonstrably unfit.

[6]

We see no basis on which to interfere. For these reasons, leave to
    appeal sentence is granted but the appeal is dismissed.

Paul Rouleau J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnston, 2016 ONCA 834

DATE: 20161108

DOCKET: C61557

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Michael Johnston

Respondent

Katherine Beaudoin, for the appellant

Solomon Friedman, for the respondent

Heard: November 4, 2016

On appeal from the decision of the Summary Conviction
    Appeal Court dated December 9, 2015 by Justice Kevin B. Phillips of the
    Superior Court of Justice, allowing the appeal from the conviction entered on April
    23, 2015 by Justice J.D. Waugh of the Ontario Court of Justice.

ENDORSEMENT

[1]

The Crown seeks leave to appeal and, if leave be granted, appeals the
    summary conviction appeal courts (the SCACs) ruling allowing the
    respondents appeal from his conviction for having care or control of his
    vehicle while impaired, under s. 253(1)(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

The Crown contends that the SCAC impermissibly substituted its own view
    of the evidence about whether the respondent was in
de facto
care or control
    of his vehicle for that of the trial judge.  In particular, the SCAC
    unjustifiably interfered with the trial judges factual finding that, in all
    the circumstances, the respondent posed a realistic risk of danger to persons
    or property because, in his highly inebriated state, he may have changed his
    mind and decided to drive his vehicle.  In so doing, the Crown says, the SCAC
    committed a clear error of law and exceeded its jurisdiction.

[3]

Further, the Crown argues, the SCAC judge essentially allowed the
    respondents appeal on a ground neither advanced nor argued by either of the
    parties  the insufficiency of the trial judges reasons.

[4]

The Crown submits that, in light of these clear errors and given the
    binding nature of the SCACs decision on lower courts, the test for leave to
    appeal to this court is met on either or both branches of the test set out in
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641.

[5]

We agree that the test for leave is met in this case.  Leave to appeal
    to this court may be granted where there is a clear error in the decision
    sought to be appealed, even if it cannot be said that the error has
    significance to the administration of justice beyond the specific case before
    the court:
R. v. R.R.
, at para. 32.  Here, as we will explain, the
    SCAC did make clear errors of law.  Moreover, unless corrected on appeal, the
    SCACs decision may well have impact, as a binding precedent, on care or control
    driving cases litigated in the provincial court, where hundreds, if not
    thousands, of such cases are routinely prosecuted.  The granting of leave to
    appeal is therefore warranted.

[6]

We are also persuaded that, on the merits, the SCACs decision cannot
    stand.

[7]

On the trial judges uncontested findings: i) the respondent was
    inebriated; ii) he had repeatedly called a tow truck to come and fix the lock
    on his car so that he could gain entry to the car using his keys; iii) although
    the respondent planned to have his wife come and pick him up, and had called
    his wife in that regard, he did not tell his wife where or when to pick him up;
    and iv) the respondent continued to drink in a bar while awaiting the arrival
    of the tow truck.

[8]

In these circumstances, the trial judge found that the respondent had
    left his options open as to how to get home from the bar, his stated plan to
    have his wife drive him home was not implemented, and there was a realistic
    risk of danger because the respondent could change his mind and decide to drive
    himself home in his inebriated state.

[9]

There is no suggestion that these key findings are tainted by palpable
    and overriding error.  To the contrary, they are fully supported by the
    evidentiary record.  As a result, it was not open to the SCAC to interfere with
    these findings and to substitute its own findings and assessment of the
    evidence for those of the trial judge.

[10]

However, that is precisely what the SCAC did in at least two material
    respects.  First, the SCAC did not accept the trial judges factual finding
    that the respondents alternate plan to get home had not been implemented,
    instead observing that it was an error to assume that a plan for alternatives
    to driving must be fully implemented before it is entitled to be considered as
    possibly raising a reasonable doubt with respect to risk.

[11]

With respect, this is an inaccurate reading of the trial judges
    reasons.  The trial judge made no finding that the respondents alternate plan
    had not been fully implemented.  Rather, for reasons he clearly explained, he
    found, in effect, that the plan had not been meaningfully implemented at all.
    There was no basis for appellate interference with this factual finding.

[12]

Second, the SCAC also did not accept the trial judges finding of a
    realistic existing risk that the respondent could change his mind and drive.
    It appears that the SCAC concluded that this finding was based only on the
    respondents state of intoxication.

[13]

This, too, reflects a misapprehension of the trial judges reasons.  The
    trial judges reasons make it clear that his risk assessment was based on his
    consideration of several relevant factors including, but not limited to, the
    appellants state of intoxication.  His factual finding of a realistic, clear
    and present risk was open to him on the record.  It was also reasonable on the
    facts of this case.

[14]

Finally, on multiple occasions in its reasons, the SCAC questioned the
    adequacy of the trial judges reasons, as support for interfering with his
    ruling.  However, the parties did not challenge the sufficiency of the trial
    judges reasons on the appeal before the SCAC.  Nor were they invited to make
    submissions on this issue.

[15]

In any event, apart from these procedural fairness concerns, when the
    trial judges reasons are read in the context of the record, as they must be,
    it is apparent why he decided as he did.  This is all that is required to meet
    the sufficiency of reasons standard.

[16]

Accordingly, there was no room for appellate interference with the trial
    judges decision based on any perceived material deficiency in his reasons.

[17]

For the reasons given, the appeal is allowed, the order of the SCAC is
    set aside, and the conviction entered by the trial judge is restored.

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kennedy, 2016 ONCA 879

DATE: 20161122

DOCKET: C60777 and C59802

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Kennedy and Troy Wolfe

Appellants

Peter Copeland, for the appellant, Joseph Kennedy

Dan Stein, duty counsel for the appellant, Troy Wolfe

Andreea Baiasu, for the respondent

Heard: June 9, 2016

On appeal from the conviction entered on November 27,
    2013 and the sentence imposed on December 4, 2014 by Justice D. Grace of the Superior
    Court of Justice, sitting with a jury.

Benotto J.A.:

[1]

Joseph Kennedy and Troy Wolfe were charged with a number of offences
    arising out of a robbery of a pharmacy. A jury found them guilty of robbery; having
    their faces masked with intent to commit an indictable offence; assault with an
    imitation handgun; and using an imitation handgun in committing an indictable
    offence. Mr. Kennedy was also convicted of resisting a police officer in the
    execution of his duty. They appeal all these convictions.

[2]

The Crown appeals Mr. Kennedys sentence on the basis of fresh evidence
    which discloses that the Canadian Police Information Centre (CPIC) database
    relied on by the Crown during sentencing submissions was out of date.

[3]

For the reasons that follow, I conclude that the trial judge erred in
    his instructions to the jury with respect to party liability. I would allow the
    appeal on the joint convictions as well as those relating to the disguises. I
    would dismiss the appeal of Mr. Kennedys conviction for resisting arrest. In
    light of my conclusion, it is not necessary to address the Crowns appeal of
    Mr. Kennedys sentence.

(1)

Background

[4]

Mr. Kennedy and Mr. Wolfe were charged jointly with robbery (stealing
    while armed with an imitation handgun), assault with a weapon (the imitation
    handgun), and using an imitation firearm in the commission of an indictable
    offence:
Criminal Code
ss. 344(1)(a), 267(a), 85(3). They were charged
    individually with having their faces masked with the intent to commit an indictable
    offence: s. 351(2). Mr. Kennedy was also charged with resisting a peace officer
    in the execution of his duties: s. 129(a). The jury found the men guilty of all
    charges.

[5]

The case against both appellants was entirely circumstantial. Two masked
    men entered the AIM Pharmacy in London, Ontario just before 7 pm on February
    24, 2012. Video evidence led at trial showed that one man wore a white
    sweatshirt with lettering on the upper chest that said New York Superfly and
    carried a black hockey-style duffel bag. He also wore a pair of Nike sneakers
    with a black Nike swoosh emblem. The second man wore a dark leather coat with
    a blue shirt underneath and carried what looked like a handgun. An eyewitness
    described both men as wearing light wool balaclavas. Both men wore gloves.

[6]

On entering the store, the man in the white sweatshirt carrying the
    black duffel bag jumped over the counter and began searching the drawers. The
    man in the black leather jacket with the handgun hit the pharmacist. Within
    about a minute, the two men left the pharmacy with stash in hand including the
    cash register.

[7]

An independent witness walking in the area observed a black Lincoln run
    a stop sign around 6:30 p.m. and testified that about a minute later the city
    lit up with police.

[8]

In the days leading up to the robbery, Mr. Kennedy, Mr. Wolfe and two
    other men had been under police surveillance. Mr. Kennedys residence at 439
    South Street was under surveillance. On the afternoon of the robbery, a man
    wearing a white hoodie was seen attaching a licence plate to the rear of a
    black Lincoln parked in the driveway of 439 South Street. Mr. Kennedy was seen
    getting into the passenger side of the black Lincoln shortly afterward. He was
    dressed in a dark jacket, a white hoodie and a blue shirt. Later that
    afternoon, three men were observed getting into a black Lincoln parked near 370
    Pond Mills Road (it is unclear whether this was the same Lincoln seen parked in
    the driveway of Mr. Kennedys residence). The driver was of First Nations
    background and wore a dark jacket and a white hoodie. The black Lincoln was
    followed to various locations until it entered a townhouse complex. Police did
    not see the vehicle leave the complex. Shortly before 7 p.m., police received
    information of the robbery at the AIM Pharmacy.

[9]

An officer then entered the parking area of the townhouse complex in
    search of the black Lincoln but could not find it. About half an hour later, an
    officer observed an unplated black Lincoln pull up and park in the parking lot
    of 370 Pond Mills Road. Mr. Wolfe was believed to live at this address with his
    girlfriend. At that time, Mr. Kennedy was seen in the immediate vicinity of 370
    Pond Mills Road, but departed in a taxi. Another unidentified male was seen
    leaving 370 Pond Mills Road on foot about 15 minutes later, wearing a dark
    jacket and a white hoodie.

[10]

A search warrant was executed on Unit 77, 370 Pond Mills Road. The
    search resulted in the seizure of a black hockey bag with the same logo as that
    seen in the robbery video, a black ski mask, three leather coats and a pair of
    Nike running shoes. The ski mask found at 370 Pond Mills Road had a majority
    DNA profile matching Mr. Wolfe. A search of 439 South Street did not generate
    any evidence.

[11]

Police located a black Lincoln vehicle at a third address. Inside was a
    blue balaclava, a white sweatshirt, a black glove and a long thin white paper.
    The sweatshirt and balaclava contained numerous DNA profiles and were not
    suitable for DNA comparison. The glove contained a majority profile matching
    Mr. Kennedy. It is unclear whether this was the same black Lincoln seen running
    the stop sign by the independent witness. On arrest, Mr. Kennedy was wearing a
    white hoodie with the words New York Superfly written on it. The handgun and
    cash register were never located.

(2)

The Charge to the Jury on Party Liability

(a)

The Instruction on the Jointly Charged Counts

[12]

Mr. Kennedy and Mr. Wolfe were jointly charged on three counts:

(1)

Stealing while armed with an
    imitation handgun;

(2)

Assault with an imitation
    handgun;

(3)

Using an imitation handgun while
    committing an indictable offence.

[13]

Early in his instructions, the trial judge set out the facts which the
    parties had agreed on. These did not include any admissions with respect to the
    use or knowledge of a weapon or imitation weapon by either appellant.

[14]

After reviewing general principles and concepts with the jury, the trial
    judge set out the elements of the offence of robbery while armed as follows:

For you to find Joseph Kennedy or Troy Wolfe guilty of robbery,
    Crown counsel must prove each of these essential elements beyond a reasonable
    doubt:

a.       That the defendant under consideration, and I want to
    reemphasize you will give separate consideration to Joseph Kennedy and Troy
    Wolfe, stole something from [the complainant], and;

b.       The defendant under consideration, again you give
    separate consideration to Joseph Kennedy and Troy Wolfe, were armed with an
    imitation of an offensive weapon, alleged to be an imitation handgun, at the
    time of the stealing.

[15]

The trial judge reviewed the evidence of the robbery and explained the
    elements of the offence. In addressing the second element, he instructed the
    jury on party liability as follows:

The Crown alleges that the defendants committed this offence
    with which they have been jointly charged together. Under our law, a person may
    commit an offence alone or together with another.

In this case, one of the intruders carried a large black bag
    and the other carried something resembling a handgun. The Crown alleges that
    those individuals had different parts to play in the robbery.

Where a criminal offence is committed by one or more persons,
    each may play a different part. If they are acting together or one of them is
    acting together with a third person as part of a joint plan or to commit an
    offence, each may be found guilty of it even if they have different roles.

If you find that the Crown has proven beyond a reasonable doubt
    that the defendant under consideration, either Mr. Kennedy or Mr. Wolfe, was
    one of the intruders, it does not matter if he was the intruder carrying the
    bag or the item resembling a handgun.

What must be proven is that
the defendant
    under consideration was one of the intruders and that either he or the other
    intruder was equipped with or had in his possession an imitation handgun at the
    time of the theft from [the complainant].
[Emphasis added.]

[16]

When instructing the jury on the jointly charged count of assault with a
    weapon, the trial judge gave the same explanation of party liability as
    previously. He then described all the elements of the offence and provided the
    following instruction on the question of whether a weapon or imitation weapon
    was involved in the assault:

A weapon or imitation weapon is involved in an assault
if the defendant under consideration or the other intruder
    carried, used or threatened to use it
in intentionally applying force to
    [the complainant]. You do not all have to agree on how the weapon or imitation
    weapon was involved, as long as each of you is satisfied beyond a reasonable
    doubt that the assault involved a weapon in one of the ways I have described
    for you. [Emphasis added.]

[17]

Next, the trial judge instructed on the jointly charged count of use of
    an imitation firearm to commit an indictable offence. He repeated his earlier
    instruction on party liability and said the following on the question of
    whether a firearm was used in committing the offence:

Crown counsel does not have to prove that the defendant under
    consideration or the other intruder fired a firearm. Nor does Crown counsel
    have to prove that the defendant under consideration or the other intruder
    injured or meant to hurt anybody. The imitation firearm need not be pointed at
    anybody, although to point it at another person is to use it.

To satisfy this requirement,
Crown
    counsel must prove beyond a reasonable doubt, at least, that the defendant
    under consideration or the other intruder had an imitation firearm with him,
    that he pulled it out and held it in his hand or displayed it to intimidate [the
    complainant] or another person. No more is required, but nothing less will do.
[Emphasis added.]

[18]

Missing from the jury charge was any instruction that, to find Mr.
    Kennedy or Mr. Wolfe guilty of the jointly charged offences, the jury had to be
    satisfied either that he was the gun-wielding intruder or that he knew the
    other intruder had a weapon that would be used in the course of the robbery.

[19]

During deliberations, the jury asked  following question:

If one person or the other person had a firearm and the other
    person did not have a firearm, are both people guilty of having a firearm?

[20]

The trial judge answered the question by repeating the portion of the
    charge set out above.

(b)

The Parties Positions

[21]

The appellants submit that the trial judges jury instructions on party
    liability for the use of a firearm were fatally flawed. In particular, they
    argue, the jury had to be told that the non-gun-wielding intruder could only be
    liable as a party to the firearm-related offences if (i) he did something to assist
    or encourage the intruder with the gun and (ii) he knew the other intruder had
    a gun and was going to use it in committing the offence. The appellants submit
    that they never conceded that they were liable as joint principals, or that
    they knew a firearm or an imitation would be used.

[22]

The Crown argues that defence counsel conceded party liability at trial,
    agreed to the relevant portions of the jury charge at a pre-charge conference
    and chose not to make party liability an issue but to focus on identity instead.
    The Crown argues that, given the way the offence was carried out, as captured
    on video, there was no air of reality to a submission that one intruder did not
    know that the other had a firearm. While it might have been preferable for the
    trial judge to include a charge on party liability with respect to the firearm,
    in the circumstances, it was not necessary.

(c)

Analysis

[23]

The liability of parties to an offence is governed by s. 21 of the
Criminal
    Code
. Here, the case for the Crown was that the appellants were joint
    principals under s. 21(1)(a). This section applies where two or more people
    actually commit an offence. It also applies where they together form an
    intention to commit an offence, are present at its commission, and contribute
    to it, although each does not personally commit all the essential elements of
    the offence:
R. v. Spackman
, 2012 ONCA 905, 295 C.C.C. (3d) 177, at
    para. 181;
R. v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at para.
    63. To be liable as principals to the jointly charged offences, therefore, it
    was necessary that the appellants had the requisite intention.

[24]

The trial judges instructions on party liability were not correct. On
    the evidence, only one of the intruders had a weapon, and it was not
    unequivocal who that was. Nowhere in the instruction does the trial judge
    instruct the jury that to find the non-gun-wielding intruder guilty of the
    offences as charged, it must find that he knew the other intruder had the
    imitation firearm:
R. v. Koroma
, 2012 ONSC 4397, at paras. 88-90;
R.
    v. Chang
, [2007] O.J. No. 5787 (S.C), at paras. 44-46, affd 2009 ONCA
    564, at para. 4.

[25]

The importance of instructing the jury on this knowledge element was
    addressed by this court in
R. v. Watson
, 2008 ONCA 614, 240 O.A.C.
    370. In
Watson
, the appellants accompanied a friend to a clothing
    store just after he had purchased garbage bags and gloves. The friend was
    carrying a loaded firearm. The three robbed the store, but the appellants
    claimed they were not aware the friend had a firearm until he pulled it out in
    the course of the robbery. On appeal, the appellants argued that the jury
    charge was flawed: the jury was not told that it could only find the accused
    guilty of armed robbery if satisfied that the accused had participated in the
    theft knowing that the friend had a firearm. In dismissing the appeal, this
    court held, at para. 40, that while the trial judges instructions could have
    been clearer, taken as a whole they were adequate to ensure that the jury
    would not convict unless they were satisfied that the appellants participated
    in a theft at a time when they knew [the friend] had a gun. The  instructions
    on aiding and abetting and the summary of the parties positions also made it
    clear  that to convict either accused for offences involving a firearm carried
    by a third person, that accused had to have known the third person had a
    firearm during the course of the robbery.

[26]

In this case, the jury would not have been aware that it had to be
    satisfied that each accused either carried the firearm or knew the other was in
    possession of a firearm. It is apparent from the question posed by the jury
    that it was unclear what would be required to find the non-gun-wielding
    intruder guilty of an offence involving a firearm. The re-charge,
    unfortunately, did not clarify this point.

[27]

For these reasons, I would allow the appeal on the three jointly charged
    counts, all of which involve the use of the imitation firearm. The charges
    relating to the disguise rest on the commission of an indictable offence. I
    would therefore allow the appeal in relation to the disguise charges as well.

(3)

Resisting a Peace Officer in the Execution of his Duties

[28]

Mr. Kennedy was convicted of resisting arrest. The evidence discloses
    that, at the time of his arrest, the following took place:

·

He
    was instructed to keep his hands above his head, but reached into the pocket of
    his leather jacket and pulled out and lit a cigarette;

·

He
    was instructed to keep his back turned to the officer speaking to him, but he
    instead turned around periodically while cuffed at the rear;

·

He
    was instructed to lift his jacket, but instead took it off and set it on the
    car;

·

He
    removed his sweatshirt and placed it on the car;

·

One
    officer also stated that Mr. Kennedy tried to pull away.

[29]

During the arrest, both officers kicked one of Mr. Kennedys legs and
    brought him to a prone position on the ground.

[30]

In instructing the jury on this charge, the trial judge explained that
    to resist is to strive against, oppose, try to impede or prevent, fail to
    comply. Mr. Kennedy was convicted of the offence.

[31]

In order to prove a charge of resisting arrest, the actions of the
    accused must constitute active resistance and not passive resistance. In
R.
    v. Alaimo
(1974), 27 C.C.C. (2d) 491 (Ont. C.J.), the court concluded,
    based on several dictionary definitions, that the offence requires a direct
    confrontation between the subject and the police and at least a minimal degree
    of force exercised. Blacks Law Dictionary states that the word properly
    describes an opposition by direct action and quasi forcible means.

[32]

In
R. v. Stortini
(1978), 42 C.C.C. (2d) 214 (Ont. C.J.), the
    accused was advised that he was under arrest on an outstanding warrant. He
    refused to accompany the officers. As a result, the officers lifted the accused
    up under each arm and carried him to the police vehicle. He did not exert any
    direct physical force on the officers.  The trial judge stated:

[T]he word resist is more properly descriptive of acts of
    opposition to the efforts of the officer demonstrated by direct activity of a
    physical sort on the part of the accused. He must be shown to have employed
    some degree of force. In other words, the conduct of the accused must amount to
    more than what has in the past been referred to as passive resistance, that is,
    resistance without some degree of force or violence, regardless of how minimal,
    before it can be said that the accused has committed the offence of resisting.
    His conduct, without such positive resistance, may very well amount to
    obstruction of the officer, but it does not, in my opinion, amount to
    resistance under the section.

[33]

Similarly, in
R. v. Bentley
, [2003] Q.J. No. 16091 (C.S.), the
    accused was unresponsive when directed to remove the keys from the ignition of
    his car and exit the vehicle. After repeating the request and gaining no
    compliance, police forcefully removed the accused from his vehicle. During his
    removal, he placed his hands firmly on his steering wheel as an indication that
    he had no intention of leaving the car. At para. 33, the court interpreted
    passive resistance as the absence of any degree of physical resistance and
    held that it did not constitute resistance for the purposes of s. 129 of the
Criminal
    Code
. However, the court held that the accuseds acts did not constitute
    passive resistance as he use[d] physical force to prevent his removal: para.
    51. In the result, the accused was acquitted as he had been charged with
    obstruction, not with resisting.

[34]

In
R. v. Marcocchio
, 2002 NSPC 7, 213 N.S.R. (2d) 86, at para.
    113, the court reached a similar conclusion:

Acts of positive physical resistance amounting to so-called
    forcible means offered by an accused to a police officer in the execution of
    his duty constitutes the sort of resistance that is contemplated by s. 129 of
    the
Criminal Code
. On the other hand, conduct which is often referred
    to as passive resistance which is to say resistance without some degree of
    applied force, is generally found to be outside the scope of s. 129 and not
    punishable by criminal sanction.

[35]

In
R. v. M.L.M.
,

2007 ABCA 283, 52 M.V.R. (5th) 52,
    the accused was detained by officers while seated in his car. He failed to
    comply with orders to put his hands on the dashboard and instead started the
    vehicle, put it in reverse and stepped on the gas. The appellant argued that,
    while his conduct amounted to non-cooperation, it did not constitute resistance
    because there was no direct physical confrontation with the officers. In
    dismissing the appeal, at para. 9, the court concluded that the accuseds
    actions were more than passive resistance and constituted an active use of
    force against the peace officer.

[36]

In my view, the offence of resisting a peace officer requires more than
    being uncooperative: it requires active physical resistance. While this case is
    at the very low end of the scale of acts of resistance, there was evidence upon
    which a properly instructed jury could find Mr. Kennedy guilty of the offence.
    The evidence suggested that he repeatedly turned his body during his arrest.
    There was also evidence from one officer that he had pulled away. In my view, the
    jury was entitled to conclude that these acts amounted to active resistance.

[37]

I would therefore dismiss the appeal from Mr. Kennedys conviction for
    resisting arrest.

Disposition

[38]

I would allow the appeal and set aside the convictions on the joint
    counts and the disguise charges. Because there is evidence which could support
    the convictions, the proper disposition is to order a new trial. However, since
    Mr. Kennedy has served his sentence and Mr. Wolfe has served a substantial
    portion of his sentence, I doubt that the interests of justice require a new
    trial. I would dismiss Mr. Kennedys appeal of his conviction for resisting
    arrest.

Released: November 22, 2016

M.L. Benotto J.A.

I agree K. Feldman J.A.

I agree B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kraljevic, 2016 ONCA 860

DATE: 20161116

DOCKET: C60468

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruno Kraljevic and
Branka Kraljevic

Appellant

Frank Addario and Andrew Burgess, for the appellant

Frank Au, for the respondent

Heard: November 1, 2016

On appeal from the conviction entered by Justice Matthew
    C. Webber of the Ontario Court of Justice on March 26, 2015.

By the Court:

[1]

The appellant, Branka Kraljevic, was convicted of aggravated assault.
    There was a scuffle on the driveway at the appellants home in Ottawa. The
    participants were her husband Bruno and three male members of the neighbouring Paquette
    family  father Claude and adult sons Christian and Nicholas.

[2]

The Paquettes instigated the fight over an objection to the noise caused
    by the Kraljevics leaf blower machine. The behaviour of the Paquettes could
    only be described as loutish. After a heated verbal argument, a physical
    altercation ensued. There was a dispute at trial about who threw the first
    punch.

[3]

Several facts were undisputed. The fight took place on the Kraljevic driveway.
    The Paquettes were trespassers there. At some point, Claude punched Bruno in
    the face.

[4]

As the fight continued, Bruno, Claude and Christian were prostrate on
    the driveway. Either or both Claude and Christian were pinning Bruno to the
    driveway surface. The appellant testified that Bruno called to her for
    assistance, telling her to get a knife.

[5]

The appellant ran into the house and grabbed two knives, one of which
    was a two-pronged kitchen knife. She came back outdoors, ran down the driveway,
    and stabbed Claude with the two-pronged knife, causing two breaks in his skin.
    The wound to his left flank area required three stitches to close.

[6]

The evidence about the few seconds before the stabbing and the actual
    stabbing was conflicting.

[7]

The appellant testified that as she approached the melee and immediately
    prior to the stabbing, Claude was just getting up off Bruno. She also said that
    Claude was coming towards her just before she stabbed him.

[8]

The trial judge rejected the appellants testimony on this issue. He
    said that the appellants description of the stabbing scenario was at odds
    with the evidence of the preponderance of witnesses in this case who described
    Claude Paquette standing at the front of the driveway not engaged with Bruno Kraljevic
    immediately prior to the moment of the stab wound. In particular, the trial
    judge accepted and relied on the testimony of Safina Khan, Christians wife, to
    this effect.

[9]

Against the backdrop of these factual findings, the trial judge turned
    to the appellants claim of self-defence under the current s. 34(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

[10]

The trial judge had no hesitation concluding that the appellant was at
    all times subjectively of the belief that her actions were motivated to defend
    herself or her husband.

[11]

However, the trial judge could not find that the appellants stabbing of
    Claude was reasonable in the circumstances. He said: I believe Claude was
    applying no force, and thus was an improper target of any defensive reaction
    engaged in by Branka.

[12]

The trial judge convicted the appellant of aggravated assault and
    assault with a weapon. He stayed the latter conviction on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.

[13]

The appellant appeals her conviction on the basis that the trial judge
    erred in his application of the law of self-defence. She advances three
    related, indeed overlapping, grounds of appeal.

[14]

First, the appellant submits that the trial judge impermissibly weighed
    the appellants response to a nicety contrary to
R. v. Baxter
(1975),
    27 C.C.C. (2d) 96 (Ont. C.A.). The appellant says that the trial judge paid
    insufficient attention to the important facts that Claude had punched Bruno in
    the face and that Claude was involved in a chaotic assault and was in the
    vicinity of Bruno when he was stabbed.

[15]

We do not accept this submission. The trial judge was well aware of
Baxter
;
    he discussed its principles with counsel during submissions and referred to it
    in his reasons for judgment. He carefully reviewed the evidence. He clearly
    recognized that self-defence was a real possibility as the events unfolded,
    saying, at p. 46:

Lets be clear. If she had come out of the house, armed with a
    knife at the request of her husband, and I found as a fact that Claude Paquette
    was, in fact, still perched on Bruno, and was striking him  if under those
    circumstances, Branka Kraljevic had used a knife to inflict a stab wound, we
    could be in a very different situation.

[16]

However, the trial judges crucial factual findings led him to conclude
    that at the moment of stabbing, Claude was not fighting Bruno; nor was he near
    enough to Bruno to justify the appellant in stabbing him. The trial judges
    reasoning was, in our view, fair and balanced.

[17]

Second, the appellant submits that the trial judge failed to consider
    her mistake of fact, namely, that she thought that Claude was on top of her
    husband and got off him to come towards her.

[18]

We are not persuaded by this submission. What the appellant labels
    mistake of fact is in fact two diametrically opposed versions of the fight as
    the appellant approached with the knife. There was no suggestion at trial that
    the appellant was mistaken, let alone reasonably so.  As the trial judge
    explained at p. 36 of his reasons for judgment, this is simply not one of those
    cases where the competing versions of events could both be reasonable.

[19]

Third, the appellant asserts that the trial judge erroneously considered
    reasonableness in the criminal negligence sense of the word rather than how it
    has been interpreted in self-defence cases.

[20]

We disagree. The trial judge properly considered the appellants
    circumstances as she approached the confrontation and the proportionality of
    her response, all in the context of the wording of s. 34 of the
Criminal
    Code
.

[21]

The preceding reasons dispose of the appeal. However, before stating the
    formal disposition we offer a final comment.

[22]

In his sentencing reasons, the trial judge said this about the appellant,
    who is employed by the Canada Border Services Agency, and had no prior criminal
    record:

Ive read your employment history, and Ive read about all the
    good work youve done over the years. I do hope, given that we have registered
    a conviction against you, that this record will not frustrate or complicate
    your employment. I noticed that your place of employment may be at a location
    that might have security prerequisites. It would be a shame indeed if it did,
    and everything Ive read about you and know about you at this time, would lead
    me to indicate that it surely would be a shame and an injustice if this finding
    of guilt were to have that kind of effect on you. So I hope that doesnt
    happen.

We agree with these sentiments.

[23]

The appeal is dismissed.

Released: JCM NOV 16 2016

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lam, 2016 ONCA 850

DATE: 20161110

DOCKET: C60411

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bill Lam

Applicant/Appellant

Peter Lindsay, for the applicant/appellant

Philip Perlmutter, for the respondent

Heard: October 17, 2016

On appeal from the decision dated April 7, 2015 of Justice
    Robert F. Goldstein of the Superior Court of Justice, sitting as a summary
    conviction appeal court, allowing the appeal from the acquittal entered on March
    14, 2014 by Justice Brent Knazan of the Ontario Court of Justice.

By the Court:

[1]

The applicant seeks leave to appeal from a decision of a judge of the
    summary conviction appeal court who set aside the applicants acquittal of
    operating a motor vehicle with a prohibited concentration of alcohol in his
    blood and ordered a new, and third, trial.

[2]

At the conclusion of argument on whether leave to appeal should be
    granted, we advised counsel that leave to appeal would be refused. We promised
    brief reasons for our decision. Those reasons follow.

The Background

[3]

It was an essential element of the case for the Crown at trial that it
    proved that, while operating a motor vehicle, the applicant had a concentration
    of alcohol in his blood that exceeded 80 milligrams of alcohol in 100 millilitres
    of blood. To establish this essential element of the offence, the Crown sought
    to invoke the presumption of identity in s. 258(1)(c) of the
Criminal Code
.

The Trial Decision

[4]

The trial judge declined to admit the certificate of analysis as
    evidence of the blood alcohol concentration of the applicant when he was
    operating his motor vehicle. The trial judge considered that the failure to
    send the approved instrument  an Intoxilyzer  for annual inspection for 13
    months amounted to evidence tending to show that the instrument was operated
    improperly, thus defeating the presumption in s. 258(1)(c) and rendering
    evidence of the results of the analysis inadmissible. The case for the Crown
    failed. The trial judge entered an acquittal.

The Summary Conviction Appeal

[5]

The Crown appealed the acquittal to the summary conviction appeal court.

[6]

A judge of the summary conviction appeal court ordered a new trial. In
    his view, the trial judge had erred in elevating the recommendations of the
    Alcohol Test Committee that approved instruments be
inspected
annually
    to a condition precedent for proper operation of the instrument. This error led
    the trial judge to conclude that the presumption of identity in s. 258(1)(c)
    was not engaged and thus could not be invoked to establish the applicants
    blood alcohol concentration when he was operating his motor vehicle.

[7]

The judge of the summary conviction appeal court also found that the
    trial judge had misapprehended the evidence of a toxicologist called as an
    expert witness by the Crown and had further erred in relying on the evidence of
    a defence toxicologist that the failure of an annual inspection meant that the
    approved instrument was operated improperly, thus defeating the application
    of s. 258(1)(c). Whether the instrument was operated improperly was a
    question of law for the trial judge to decide, not an issue upon which the
    expert witness was entitled to offer an opinion.

The Motion for Leave to Appeal

[8]

In his Notice of Application for Leave to Appeal and Notice of Appeal,
    the applicant alleged six legal errors by the summary conviction appeal court.
    In his factum, counsel for the appellant did not set out any discrete questions
    of law upon which he sought leave to appeal. In oral argument, however, the
    applicant characterized the question of law on which he sought leave as whether
    the phrase operated improperly in s. 258(1)(c) includes improper maintenance
    of the approved instrument.

The Test for Leave to Appeal

[9]

Section 839(1) of the
Criminal Code
limits appeals to this
    court from decisions of summary conviction appeal courts to grounds involving
    questions of law alone and requires that leave to appeal be granted by this
    court. This second level of appeal in summary conviction proceedings is an
    appeal from the decision of the summary conviction appeal court, not a second
    appeal from the decision of the trial court. The appeal is limited to questions
    of law alone and does not extend to questions of fact alone or of mixed fact
    and law, as do appeals to the summary conviction appeal court from decisions
    made at trial. Second appeals in summary conviction proceedings are the
    exception, not the rule:
R. v. R.(R)
, 2008 ONCA 497, 90 O.R. (3d) 641,
    at para. 25.

[10]

Two key variables influence the leave decision:

·

The significance of the legal issue(s) raised to the general
    administration of criminal justice

·

The merits of the proposed ground(s) of appeal.

Issues that have significance to the administration of
    criminal justice beyond the particular case may warrant leave to appeal,
    provided the grounds are at least arguable, even if not especially strong. And
    leave to appeal may also be granted even if the issues lack general importance,
    provided the merits appear very strong, especially if the conviction is serious
    and an applicant is facing a significant deprivation of his or her liberty:
R.(R.)
,
    at para. 37.

The Standard Applied

[11]

Several factors persuaded us that this is not a case in which leave to
    appeal should be granted.

[12]

First, leave to appeal in summary conviction proceedings is the
    exception, not the rule. It is all the more so when an applicant, charged with
    an offence that is alleged to have occurred over eight years ago, has already
    had two trials and two summary conviction appeals. At some point, finality must
    prevail.

[13]

Second, to the extent that the question of law on which leave to appeal
    is sought is commingled with complaints of misapprehension of evidence, the
    ground involves the application of well-settled principles of law in no need of
    restatement or refinement. Almost by definition, complaints about
    misapprehension of evidence by the summary conviction appeal court are
    case-specific and do not transcend the idiosyncrasies of the case at hand.

[14]

Third, invocation of the frequency with which alcohol-driving
    prosecutions populate the lists in the Ontario Court of Justice to fund a claim
    of wider application proves too much. If frequency of prosecution were the
    touchstone for granting leave to appeal, leave would become the rule, not the
    exception in alcohol-driving offences.

[15]

Fourth, the substantive issue the applicant seeks to advance is
    controlled by
R. v. St
‑
Onge
    Lamoureux
, 2012 SCC 57, [2012] 3 S.C.R. 187 (not
R. v. Jackson
,
    2015 ONCA 832, 128 O.R. (3d) 161 as the respondent suggests). We see no
    misapplication of those principles by the summary conviction appeal court.

Conclusion

[16]

For these reasons, leave to appeal was refused.

Released: November 10, 2016 (DW)

David Watt J.A.

P. Lauwers J.A.

M.L. Benotto J.A.