COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Cunha, 2016 ONCA 491

DATE: 20160621

DOCKET: C59489

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Valter Cunha

Appellant

Michael Dineen, for the appellant

Davin M. Garg, for the respondent

Heard:  May 19, 2016

On appeal from the conviction entered on May 12, 2014, and
    the sentence imposed on October 27, 2014 by Justice John MacDonald of the
    Superior Court of Justice.

Lauwers J.A.:

[1]

The trial judge convicted Valter Cunha of one count of intentional
    discharge of a firearm with intent to wound, contrary to s. 244 of the
Criminal
    Code
, and one count of aggravated assault, contrary to s. 268. Mr. Cunha
    admitted shooting Fernando Barros twice.  Mr. Cunha testified and asserted
    he was acting in self-defence. The trial judge rejected that defence.

[2]

The trial judge sentenced Mr. Cunha to five years imprisonment, which
    is the mandatory minimum required by s. 244(2)(a)(i) of the
Criminal Code
for a first offence, and to four and a half years for the aggravated assault,
    concurrent to the first conviction.  He gave credit of one year for pre-trial
    custody and 10 months for onerous bail terms.

[3]

For the reasons set out below, I would allow the appeal, set aside the
    conviction, and order a new trial. I would not address the appellants sentencing
    submission that the mandatory minimum in this case is unconstitutional.

[4]

I begin with a brief description of the law relating to self-defence. I next
    consider the narrative context, then the trial judges approach, and conclude
    with the legal analysis.

(1)

The Legal Elements of Self-Defence

[5]

On March 11, 2013, the
Citizens Arrest and Self-Defence Act
, S.C. 2012, c. 9,
came into force,
    repealing the former ss. 34 to 37 of the
Criminal Code
and replacing
    them with a new s. 34 self-defence provision. At trial, the parties did not
    have the benefit of this courts decision in
R. v. Bengy
,
2015 ONCA 397, 325 C.C.C. (3d) 22, in
    which this court held that the new
Criminal Code
provisions regarding
    self-defence do not apply retrospectively. However, the parties submit, and I
    agree, there is no relevant difference, for the purposes of this case, between
    the old provisions and the new.

[6]

At para. 28 of
Bengy
, Hourigan J.A. set out the elements of
    self-defence:

The test for self-defence was, therefore, simplified into three
    basic requirements, applicable to all cases:

Reasonable belief (34(1)(a))
:
the accused must reasonably believe that force or threat of force is being used
    against him or someone else;

Defensive purpose (34(1)(b)): the
    subjective purpose for responding to the threat must be to protect oneself or
    others; and

Reasonable response (34(c))
:
the act committed must be objectively reasonable in the circumstances.

[7]

As for the objective element of the defence, it is accepted
    that in considering the reasonableness of the defendants use of defensive
    force, the court must be alive to the fact that people in stressful and
    dangerous situations do not have time for subtle reflection, as this court
    noted in
R. v. Mohamed
, 2014 ONCA
    442, 310 C.C.C. (3d) 123, at para. 29:

As Professor Paciocco notes at p. 36:

The law's readiness to justify
    "mistaken self-defence" recognizes that those in peril, or even in situations
    of perceived peril, do not have time for full reflection and that errors in
    interpretation and judgment will be made.

In a similar vein, Martin J.A. commented in
R. v. Baxter
(1975), 27 C.C.C. (2d) 96, at p. 111, that

in deciding whether the force used by
    the accused was more than was necessary in self-defence under both s. 34(1) and
    (2), the jury must bear in mind that a person defending himself against an
    attack, reasonably apprehended, cannot be expected to weigh to a nicety the
    exact measure of necessary defensive action.

[8]

It is well established that self-defence can be invoked on the basis of
    reasonable mistakes of fact, including whether the putative assailant was
    armed.    As this court noted in
R. v. Currie
[2002] O.J. No. 2101,
    166 C.C.C. (3d) 190 (C.A.), at para. 43:

The Supreme Court of Canada in
Cinous
[2002 SCC 29] confirmed
    the principle established in
R. v. Pétel
, [1994] 1 S.C.R. 3 that the
    existence of an actual assault is not a prerequisite for a defence under s.
    34(2). The question that the jury must ask itself is not whether the accused
    was unlawfully attacked, but whether he reasonably believed in the
    circumstances that he was being unlawfully attacked. The question for the trial
    judge on the threshold evidential test is whether there is evidence upon which
    a jury acting reasonably could conclude that the accused reasonably believed he
    was about to be attacked and that this belief was reasonable in the
    circumstances.

[9]

It is also the law that a person who is defending himself, and other
    occupants of his house, is not obliged to retreat in the face of danger. In
R. v.
    Forde
, 2011 ONCA 592, 277 C.C.C. (3d) 1, this court considered the issue
    of retreat at some length, and concluded at para. 55: a jury is not entitled
    to consider whether an accused could have retreated from his or her own home in
    the face of an attack (or threatened attack) by an assailant in assessing the
    elements of self-defence.

(2)

The Narrative Context

[10]

It is trite law that in assessing self-defence, the trier of fact must
    pay close attention to the entire factual context. As I will explain, in this
    case, the trial judge failed to do so. He made several palpable and overriding
    errors that led him to misapprehend what was really going on in the encounter
    between the appellant and Mr. Barros.

[11]

It became clear in oral argument that the parties do not substantially
    disagree about the facts and the sequence of events that led to the shooting.

[12]

The appellant lived in a house that was separated into two apartments.
    He occupied the ground floor unit which was accessed by two doors on the main
    floor, the main door at one end of the foyer and a French door at the other
    end.  The door to the upstairs unit, occupied by the appellants friend Peter
    Silva, was right beside the main door to the appellants unit.

[13]

On December 13, 2011, Mr. Barros and his two associates, Momokai
    Massaquoi and Cody Rocha, went to Mr. Silvas residence to purchase marijuana.
    Mr. Rocha waited in the car while Mr. Barros and Mr. Massaquoi went into the
    house. Mr. Barros and Mr. Silva exchanged money for drugs, $4,500 for one and a
    half pounds of marijuana. Mr. Barros discovered that he had only received a
    pound; Mr. Silva explained that he had withheld the half pound because during
    their last drug deal Mr. Barros had underpaid by $1,500.  Mr. Barros
    objected and when he tried to get his money back a physical struggle broke out
    in the foyer of the house.

[14]

At the time, the appellant was having dinner with his friend George
    Fotopoulos.  Mr. Silva called for help, and the appellant and Mr. Fotopoulos
    came out to the front foyer through the appellants main door. They discovered
    the scuffle, got Mr. Silva inside the appellants unit and locked the door. The
    appellant and Mr. Fotopoulos then went downstairs where the appellant retrieved
    his registered handgun and loaded it. While downstairs, Mr. Fotopoulos heard a
    voice saying shoot him, shoot him. Although it is not clear where Mr. Cunha
    was when this statement was made, the trial judge accepted that he heard it
    too.  Mr. Cunha went back upstairs and, instead of accessing the foyer through
    the main door, decided to enter it from the French doors at the other end.  As
    he was about to go into the foyer, he saw Mr. Massaquoi moving past carrying a
    shotgun.

[15]

Mr. Cunha then stepped into the foyer, but Mr. Massaquoi was gone,
    apparently through the main door to the appellants unit that had been locked,
    but was now open. He found Mr. Barros facing the main door to his unit and told
    him to freeze.  Mr. Barros, whose back was turned to the appellant, did not
    freeze, but began to turn and Mr. Cunha shot him twice, once in the leg and
    once in the lower back.

[16]

In the meantime, Mr. Fotopoulos exited the basement through the rear
    entrance, and Mr. Silva exited the main floor through the back door of Mr. Cunhas
    unit. Neither had come to harm. Mr. Barros limped out the front door.
    Eventually, the police arrived.

(3)

The Trial Judges Approach

[17]

The trial judge found the Crown had proven beyond a reasonable doubt
    that none of the elements of self-defence applied to Mr. Cunha in the
    circumstances.

[18]

With respect to Mr. Cunhas belief that force or threat of force was
    being used against him or someone else, and whether his belief was reasonable,
    the trial judge held:

I am satisfied beyond a reasonable doubt on the evidence as I
    have assessed it that Mr. Cunha did not have reasonable grounds for believing
    and did not believe that Mr. Barros was using or threatening force against him.

[19]

With respect to whether Mr. Cunha subjectively had a defensive purpose,
    the trial judge found: because Mr. Cunha did not believe that Mr. Barros was
    threatening to use force on him, I am satisfied beyond a reasonable doubt that
    in shooting Mr. Barros, Mr. Cunha did not do so for the purpose of defending or
    protecting himself from that alleged threat.  He added:

In addition, I find it proven beyond a reasonable doubt that
    Mr. Cunha shooting at Mr. Barros was not for the purpose of either defending or
    protecting the other person threatened with the use of force, because the
    person, Mr. Silva, whom he might have been defending, was somewhere else.

[20]

The trial judge concluded his analysis of Mr. Cunhas defensive purpose
    with the following statement:

He shot an unarmed man in the back of his body twice without
    knowing whether the person was a threat of any sort, and without believing that
    he was a threat, likely, I find, because he was afraid that Mr. Barros might be
    armed, and because of that fear, Mr. Cunha wasnt going to wait to find out if
    he was armed.

[21]

As to whether Mr. Cunhas response was objectively reasonable, the trial
    judge found that:

[T]he act of firing at and wounding Mr. Barros was not
    reasonable in the circumstances.  It is not reasonable to shoot an unarmed man
    in the back of his body, when it is not known whether he is armed, because he
    has begun to turn towards the shooter.  As Mr. Cunha stated, he fired a split
    second after saying freeze and thats a split second after Mr. Barros, on Mr.
    Cunhas own version of events, began to turn.

[22]

The trial judge went on to say:

Mr. Cunha could have waited a very short period of time in
    order to see whether Mr. Barros had a gun or other weapon in his hands before
    resorting to the use of devastating force.

He found Mr. Cunhas use of force was disproportionate.

[23]

The trial judge found Mr. Cunha did not shoot Mr. Barros for the
    purpose of preventing Mr. Barros from entering Mr. Cunhas unit, or for the
    purpose of removing Mr. Barros from the property, or for the purpose of
    preventing Mr. Barros from doing anything to Mr. Cunhas property.  He
    found, in relation to s. 35(1)(d) of the
Criminal Code,
that Mr.
    Cunhas actions in defending his property were not reasonable, and convicted
    him.

(4)

The Analysis

[24]

I accept the appellants argument that the trial judge parsed the
    appellants reactions down to the split-second and held him to a standard of
    perfection, informed by his hindsight knowledge that Mr. Barros was actually
    unarmed and that Mr. Massaquoi had already left the house through the back
    door. This was an error in principle, since the trial judge lost sight of the
    whole factual context and the tableau of the evidence.

[25]

This was plainly a case for the court to keep in mind that in
    considering the reasonableness of the defendants use of defensive force, the
    court must be alive to the fact that people in stressful and dangerous
    situations do not have time for subtle reflection. However, the trial judge
    held the appellant to a standard of perfection.

[26]

The trial judge found that the appellant subjectively feared for his
    life, for his friend, and for his property. He stated: I accept also that Mr.
    Cunha was probably feeling fear at that time, including fear for his life and
    also fear for his friend Mr. Silva.

[27]

As noted above, self-defence can be invoked on the basis of reasonable
    mistakes of fact. This includes mistaking whether the putative assailant was
    armed as was the case here. The trial judges finding that Mr. Barros was
    unarmed is not fatal to the appellants self-defence claim.

[28]

As I see it, the trial judge effectively imposed on the appellant an
    obligation to wait and see whether Mr. Barros had a gun or other weapon before
    acting.  Although the appellant had the advantage over Mr. Barros at the moment
    when he ordered him to freeze, he would have lost that advantage had he waited,
    and would have exposed himself to risk of serious harm if Mr. Barros had been
    carrying a gun. As this court noted in
R. v. Quinn
,
2014 ONCA 650 at para. 10: This was a
    fast-paced event that should have not be viewed on a frame-by-frame basis.

[29]

The problem with the trial judges analysis is that it paid little
    regard to the overall evidence, but focused excessively on whether Mr. Cunha
    was a credible witness. The trial judge found that he was not credible because
    of several inconsistencies in his evidence, which led him to make the following
    comment: This causes me to conclude that Mr. Cunhas testimony is likely
    incredible and unreliable unless it is confirmed by other credible or reliable
    evidence.

[30]

The blanket rejection of the appellants evidence in the absence of
    corroboration lies at the root of the trial judges errors. With respect, such
    an approach is flawed. It boils down to saying that the appellant must be lying
    except where other witnesses can confirm what he says. But this goes too far -
    if the appellant is telling the truth in certain situations that another
    witness can corroborate, then it does not necessarily follow that he must be
    lying in all other situations.

[31]

Proceeding from this flawed blanket credibility finding, the trial judge
    then relentlessly rejected Mr. Cunhas version of events. This led him to make a
    number of troubling factual findings that do not hold up to scrutiny against
    the flow of the narrative or the tableau of the evidence that he did accept. I
    refer below to five instances in the trial judges treatment of the evidence.

[32]

First, the trial judge said that: I find that Mr. Cunha did not pull
    Mr. Silva into his unit.  The problem with this statement is that it does not
    account for how Mr. Silva escaped from the scuffle in the foyer, and ended up
    behind the locked door in the appellants unit before exiting safely from the
    rear door.

[33]

The second instance relates to the damage to the front door of Mr. Cunhas
    unit. Mr. Cunha did not see anyone breaking through the door into his unit
    since he was elsewhere when it happened. Mr. Cunhas evidence was that the door
    had been replaced a few weeks before during renovations.  There is clear damage
    to the door in the police photographs and Mr. Cunha said that this damage
    occurred during the events in question. The trial judge considered whether to
    infer from that whether there was a forced entry into Mr. Cunhas premises on
    the night in issue. He refused to draw the inference:

I find that Mr. Cunhas evidence about the condition of the
    door before the events in issue is incredible and unreliable for all of the
    aforesaid reasons. Given that, the proven condition of the door after the
    events in issue does not, on the whole of the evidence, lead to a reasonable
    inference that the door was broken open in the events in issue.

[34]

However, the narrative demonstrates that the trial judges conclusion on
    the state of the door is unreasonable and inconsistent with the whole of the
    evidence.

[35]

When Mr. Cunha burst into the foyer intending to pursue Mr. Massaquoi, who
    was carrying a shotgun, he found Mr. Barros there, with his back turned to him
    facing the now open main door to his unit, which had previously been closed and
    locked. In the circumstances, it is highly unlikely that anyone inside Mr.
    Cunhas unit opened the door, but much more likely that someone in the foyer
    forced their way into it. Since Mr. Massaquoi and the shotgun were nowhere to
    be seen when Mr. Cunha entered the foyer, it is likely that Mr. Massaquoi was
    the one who broke open and damaged the door.

[36]

Third, the way in which the trial judge assessed the shooting scenario
    is problematic. He stated:

[] as Ive also held, [Mr. Massaquoi] was armed with a shotgun
    and was present in the home to Mr. Cunhas knowledge, and was at or about the
    location when Mr. Cunha shot Mr. Barros, at or about the time he shot him. In
    addition, Mr. Fotopoulos testified that he heard someone who was neither
    Mr. Silva nor Mr. Cunha say shoot him, shoot him, and that that was said in
    the area above him, which was the main floor level of Mr. Cunhas premises
    towards the westerly side of the building. Mr. Cunha states that he heard
    that. With Mr. Fotopoulos confirmation that that was said, I accept that
    Mr. Cunha heard that said shortly before he shot Mr. Barros. I accept also that
    Mr. Cunha was probably feeling fear at that time, including fear for his life
    and also fear for his friend Mr. Silva.

[37]

The trial judge also noted that Mr. Barros said that Mr. Massaquoi ran
    out to the car while he wrestled with Mr. Silva.  Mr. Fotopoulos, whose
    evidence was accepted by the trial judge, gave evidence that as he looked out
    the basement door, he saw Mr. Silva run from the house to the garage presumably
    being pursued by Mr. Massaquoi who, Mr. Fotopoulos stated, was armed with a
    shotgun. Mr. Fotopoulos saw Mr. Silva lock himself in the garage, and Mr.
    Massaquoi kicking at the garage door.

[38]

Against that backdrop, Mr. Cunha testified that when he came upon Mr.
    Barros in the foyer, Mr. Barros had his hands clasped in front of his chest
    much in the way a person holding a gun would be positioned. The trial judge
    found this to be entirely incredible, unreliable and false evidence.  He
    based this on his assessment that Mr. Cunha could not have seen what he claims
    to have seen since Mr. Barros body blocked Mr. Cunha from seeing his hands.
    He added that Mr. Cunha could not have seen the position of Mr. Barros hands as
    he was starting to turn around because he shot Mr. Barros within a split
    second.  The trial judge concluded that Mr. Cunha did not wait to see what was
    in his hands before shooting.

[39]

There was a conflict in the evidence between what Mr. Cunha said
    Mr. Barros was doing, and what Mr. Barros said he was doing.  Mr. Barros
    said he was picking up the money that Mr. Silva dropped on the floor. The trial
    judge stated: if this evidence is credible and reliable, it would mean that
    Mr. Barros hands probably were visible to Mr. Cunha, and Mr. Cunha
    probably could see that Mr. Barros was unarmed. With respect, this does not
    make sense in light of his earlier finding that Mr. Barros back was blocking
    Mr. Cunhas view of his hands.

[40]

The trial judge went on to say: As well, if Mr. Barros hands, which
    were not clasped in front of him, were at his sides, they were probably visible
    to Mr. Cunha and Mr. Cunha probably could see that Mr. Barros was unarmed.
    This again is sheer speculation. Perhaps sensing this, the trial judge stated
    that these are not findings.  He described them as issues which I have
    considered.

[41]

The trial judge then made the following comments:

Having entirely rejected as incredible and unreliable
    Mr. Cunhas testimony that Mr. Barros hands were clasped in front of him,
    and having some doubt about whether Mr. Barros was benignly picking money up
    off the floor as he claims, I can make no finding of fact about where Mr.
    Barros hands actually were for what they were actually doing in the moments
    before Mr. Cunha shot Mr. Barros,
except for the
    finding that Mr. Barros hands were not clasped in front of him as Mr. Cunha
    said they were
. (Emphasis added.)

[42]

There is, with respect, no reasonable basis for the trial judge to make a
    positive finding about the position of Mr. Barros hands after saying that he
    did not know where Mr. Barros hands actually were.

[43]

Fourth, the trial judge made inconsistent findings with respect to Mr. Cunhas
    state of mind.  Mr. Cunha admitted he did not know if Mr. Barros had a gun in
    his hands but he feared he might have one. The trial judge noted I am left
    with a reasonable doubt about whether Mr. Cunha felt afraid that Mr. Barros
    might be armed. Having said this, however, he then went on to state the
    following:

Nonetheless, I am satisfied beyond a reasonable doubt on the
    evidence as I have assessed it that Mr. Cunha did not have reasonable grounds
    for believing and did not believe that Mr. Barros was using or threatening
    force against him. As he testified, he was not going to wait to see what he had
    in his hands.

[44]

Two paragraphs later in his reasons, the trial judge said:

He shot an unarmed man in the back of his body twice without
    knowing whether that person was a threat of any sort, and without believing
    that he was a threat, likely, I find, because he was afraid that Mr. Barros
    might be armed, and because of that fear, Mr. Cunha wasnt going to wait to
    find out if he was armed.

[45]

In my view, the two preceding statements are not consistent with each
    other. If Mr. Cunha did not believe that Mr. Barros was using or threatening
    force against him, then there was no reason for Mr. Cunha to fear that Mr.
    Barros might be armed. Neither statement can be read together with the trial
    judges statement: I accept also that Mr. Cunha was probably feeling fear at that
    time, including fear for his life and also fear for his friend Mr. Silva.

[46]

Fifth, the trial judge completely discounted any personal threat to Mr. Cunha.
    He noted that the words Shoot him, shoot him were simply overheard by [Mr.
    Cunha] and were not said about him, and the man with the shotgun was seen not
    present when he, Mr. Cunha, fired at someone else, being Mr. Barros.  The
    trial judge noted:

Mr. Barros was a person who was not known to Mr. Cunha.
    There was no history between them which would have fed Mr. Cunhas apparent
    fear and which, if it existed, could have made precipitous action necessary for
    defensive or protective purposes.

[47]

Overall, the trial judge failed to take account of the entire situation
    from Mr. Cunhas perspective  a frightened home owner suddenly confronted
    with armed men in his home. The trial judge artificially separated out the
    sequence of events relating to Mr. Massaquoi, who was carrying a shotgun, from
    the encounter a very short time later between the appellant and Mr. Barros, and
    treated them as though they were virtually unrelated events. This is clearly
    inconsistent with what happened, and failed to pay sufficient attention to the factual
    context and to the entire tableau of the evidence. This was an error in principle
    in assessing self-defence.

(5)

Disposition

[48]

For the reasons set out above, I would allow Mr. Cunhas appeal, set
    aside the conviction, and order a new trial. It is not open to this court to
    acquit Mr. Cunha, since the viability of self-defence is an issue for the
    trier of fact. However, on these facts, this may well be a case where the Crown
    decides it is appropriate to elect not to proceed with a new trial. In light of
    this disposition, I would not grant leave to appeal sentence.

Released: June 21, 2016 J.M.

P.
    Lauwers J.A.

I
    agree J.C. MacPherson J.A.

I
    agree C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dirie, 2016 ONCA 502

DATE: 20160627

DOCKET: C57661  C57902

Hoy A.C.J.O., Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamud Dirie and Mohamud Omar

Appellant

Ariel Herscovitch, for the appellant Dirie

Mark Halfyard and Breana Vandebeek, for the appellant
    Omar

Brock Jones, for the respondent

Heard:  June 15, 2016

On appeal from the conviction entered on January 3, 2013
    and the sentence imposed on April 12, 2013 by Justice A.L. Harvison Young of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellants were both convicted of possession
    of a weapon for a purpose dangerous to the public peace, carrying an unlicensed
    concealed weapon, possession of a loaded unlicensed firearm, and possession of
    a firearm knowing that it was unlicensed. The appellant Mohamud Dirie was also
    convicted of breaching a probation order to keep the peace and possession of a
    firearm while prohibited from doing so pursuant to an order made under s.109 of
    the
Criminal Code
. Both appellants were
    acquitted of discharging a firearm and using a firearm in a careless manner
    without lawful excuse.

[2]

The convictions relate to events that occurred in
    the vicinity of an apartment building in northwest Toronto. The primary issue
    at trial was identity.

[3]

The evidence included video surveillance footage
    from the buildings security system. That footage showed two men entering the
    building holding objects that the Crown alleged to be firearms. It also showed
    the same two men in front of the building apparently arguing with someone in an
    apartment that was out of the cameras sight.

[4]

The trial judge found beyond a reasonable doubt
    that the two men in the video footage were the appellants.  She based her
    conclusion on her comparison of her observation of the men in court and her
    review of the security footage. In finding the appellant guilty, the trial
    judge also gave some weight to the evidence of Officer Hockaday, who had
    encountered Mr. Dirie on many occasions and who testified that he recognized
    Mr. Dirie in the video. Among other features, Officer Hockady highlighted the posture
    of the man in the video and the way he spoke out of the side of his mouth.

[5]

The appellants submit that the trial judge erred
    in the following ways. First, she made an unreasonable finding of fact that the
    appellants were the individuals depicted in the video. According to the
    appellants, the quality of the video footage and the limited view offered by
    the video were insufficient to support a finding that the appellants were the
    perpetrators. Mr. Dirie also argues that the trial judge erred in considering
    the features highlighted by Officer Hockaday. Second, the appellant Mohamed
    Omar submits that she erred in ignoring the absence of evidence resulting from
    the execution of a search warrant at his home. That search did not turn up any
    clothing depicted in the video. Third, Mr. Omar argues that the trial
    judge improperly scrutinized and rejected the exculpatory evidence of his
    mother. Fourth, the appellants argue that the trial judge made an unreasonable
    finding of fact that the objects held by the individuals in the video were
    loaded restricted firearms.

[6]

We would not give effect to these grounds of
    appeal.

[7]

First, it is clear from her reasons that the
    trial judge was alive to the risks inherent in identification evidence. In
    reviewing the video evidence, she properly instructed herself in accordance
    with the principles in
R. v. Nikolovski
,
    [1996] 3 S.C.R. 1197. She found that the video was of sufficient clarity and
    quality for comparison purposes. She carefully reviewed the video multiple
    times and compared the images to the appellants. In so doing, she was entitled
    to take into account the evidence given by Officer Hockaday regarding Mr.
    Diries posture and the way he spoke. Having reviewed the video, we are
    satisfied that it was of sufficient quality to permit the trial judge to make
    an identification. There is no basis for appellate interference with this
    finding.

[8]

Second, we are not satisfied that the trial
    judge ignored the evidence related to the execution of the search warrant.
    Indeed, in her reasons she expressly averted to the fact that the search did
    not assist the Crowns case. The trial judges subsequent comment that the only
    evidence of any value was the video footage was simply a recognition of the
    significance of the video to the Crowns case.

[9]

Third, the trial judge did not improperly
    scrutinize and reject the evidence given by Mr. Omars mother. The trial judge
    found that the witness was not credible and cited specific examples in support
    of her conclusion. There was no undue reliance on the witnesss demeanour or
    her relationship with Mr. Omar. The trial judges assessment of credibility is
    entitled to deference by this court.

[10]

Fourth, there was ample evidence to support the
    trial judges finding that the appellants were carrying loaded restricted
    weapons, including the aggressive brandishing of the objects and a third partys
    reaction to seeing the objects, captured on video, as well as the evidence that
    shots were fired from at least two different guns. The trial judge found that
    it was clear that the appellants arrived with some sort of altercation in mind,
    and that there were two general groups involved. We agree with her observation
    that it defies credulity to think that the appellants would have arrived with
    some sort of altercation with this group clearly contemplated, knowing as they
    must have known others could or would be armed, without real or loaded
    weapons.

[11]

The appeals are dismissed.

Alexandra
    Hoy A.C.J.O.

John Laskin J.A.

C. W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fercan Developments Inc., 2016 ONCA 440

DATE: 20160602

DOCKET: C59112

Laskin, LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Fercan
    Developments Inc., GRVN Group Inc.

and FirstOntario Credit
    Union Limited

Respondents

Croft Michaelson, Q.C., and Kevin Wilson, for the appellant,
    Her Majesty the Queen

Brian Greenspan and Naomi Lutes, for the respondent,
    Fercan Developments Inc.

William Friedman and Patrick Bakos, for the respondent,
    GRVN Group Inc.

Robert Malen and Robert Drake, for the respondent,
    FirstOntario Credit Union Ltd.

Louis P. Strezos, for the intervener, the Criminal
    Lawyers Association

Heard: November 30, 2015

On appeal from the cost awards of
    Justice Peter C. West of the Ontario Court of Justice, dated January 21, 2015,
    with reasons reported at 2014 ONCJ 779 and at 2015 ONCJ 695.

COSTS ENDORSEMENT

[1]

The Crowns appeal from costs ordered against it in forfeiture
    proceedings under the
Controlled Drugs and Substances Act
, S.C. 1996,
    c. 19, was dismissed by this court on April 14, 2016:
R. v. Fercan
    Developments Inc.
, 2016 ONCA 269. As the respondents had requested that we
    award costs on the appeal, we invited the parties to provide written
    submissions on their entitlement to costs and the quantum of any costs that may
    be awarded.

[2]

The parties submissions have now been received and reviewed. We have
    concluded that we should not award any costs on this appeal.

[3]

In general, courts do not award costs against the Crown in criminal
    proceedings. As noted by this court, at para. 37 of the appeal decision, absent
    a
Charter
infringement, costs will be awarded against the Crown only
    if there is either serious Crown misconduct or if there are exceptional
    circumstances.

[4]

The respondents request for costs of the appeal does not satisfy any of
    those prerequisites.

[5]

First, the Crowns did not display a marked and unacceptable departure
    during this appeal. While this court did find serious Crown misconduct in the
    forfeiture proceedings, there is no reason why that should infect the Crowns
    conduct on appeal. There was merit to the Crowns appeal and it raised
    questions of significant importance and, therefore, the decision to appeal does
    not display a marked and unacceptable departure. The respondents have not
    alleged that the Crowns conduct in this court displayed a marked and
    unacceptable departure.

[6]

Second, although it is clear that the respondents have incurred
    substantial costs because of the forfeiture proceedings, there is no evidence
    that the costs were exceptional or result in unfairness. Moreover, the
    significant costs upheld by this court should ameliorate any financial
    hardship.

[7]

In any event, it appears that s. 683 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, precludes a costs award on this appeal. At the very
    least, due to s. 683, the civil cost provisions that the respondents rely on
    cannot be implied through the
Criminal Appeal Rules
, SI/93-169.

[8]

Accordingly, there will be no costs ordered for this appeal.

John Laskin J.A.

H.S. LaForme J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. George, 2016 ONCA 464

DATE: 20160614

DOCKET: C55373

Weiler, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne George

Appellant

Michael W. Lacy, for the appellant

Dayna Arron, for the respondent

Heard: April 28, 2016

On appeal from the conviction entered on May 3, 2011 and
    the sentence imposed on February 17, 2012 by Justice J. Bryan Shaughnessy of
    the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

A.

Overview

[1]

The appellant was convicted of a number of offences relating to events
    that took place between August 3 and August 5, 2007, and in June 2008, all in
    respect of his former girlfriend: break and enter, assault causing bodily harm,
    unlawful confinement, uttering threats, breach of recognizance, and obstruct justice.
    The trial judge found that the appellant was a dangerous offender and imposed
    an indeterminate sentence.

[2]

In convicting the appellant, the trial judge relied on the testimony of
    the complainant as well as circumstantial evidence including police photographs
    of damage to the door of the complainants apartment, injuries to her face and
    chin, blood on the mattress in the complainants bedroom, and her fearful
    demeanor. The trial judge also ruled that evidence of the appellants prior
    convictions in 2002 for break and enter with intent to commit an indictable
    offence, unlawful confinement, assault causing bodily harm, assault with a weapon,
    and kidnapping - all in relation to the same complainant - was admissible as
    similar fact evidence.

[3]

Further circumstantial evidence consisted of post-offence conduct: in
    2008, while the appellant was incarcerated in relation to the 2007 charges, a
    prison guard found a note in the appellants handwriting urging another inmate
    to force the complainant to recant her evidence. These facts also formed the
    basis of the appellants convictions for one count of uttering a threat and for
    obstruct justice.

[4]

The appellant appeals his convictions and sentence.

[5]

In relation to his convictions, the appellant raises two grounds of
    appeal. First, he argues that the trial judge mischaracterized defence evidence
    as alibi evidence, and consequently erred in law in drawing an adverse
    inference from the failure to disclose the alibi until trial and the fact
    that the appellant did not testify. Second, he argues that the trial judges
    approach to and assessment of credibility issues was flawed, in that he (a)
    subjected defence evidence to a higher and more exacting level of scrutiny than
    the evidence of the Crown, and (b) overly relied on the similar fact evidence
    and the after the fact circumstantial evidence to satisfy himself of the
    appellants guilt. The appellant seeks a new trial.

[6]

In relation to his sentence, the appellant argues that the trial judge
    erred in failing to accord minimal weight to psychiatric evidence that was
    challenged and significantly weakened during cross-examination, and in imposing
    an indeterminate period of detention rather than a long-term supervision order.

[7]

I would dismiss the appeal.

[8]

With respect to the conviction appeal, although the term alibi was used
    by defence counsel at trial, on the facts as found by the trial judge, the
    defence evidence at issue was not an alibi and I agree with the appellant that
    the trial judge erred in treating it as such. I am, however, of the view that the
    trial judges reasons reveal that he fairly scrutinized the evidence of both
    the appellant and the Crown, including both the similar fact and after the fact
    evidence, and that he was entitled to give the weight to it he did.

[9]

While the trial judges error in relation to the alibi issue was
    serious, I would reject the appellants submissions as to the effect of the
    error, and am satisfied that the evidence of the accuseds guilt was so
    overwhelming that a trier of fact would inevitably convict. Accordingly, the
    Crown has met its burden of demonstrating the result would necessarily be the
    same and I would apply the curative proviso in s. 686(1)(b)(iii).

[10]

With respect to the sentence appeal, there is no issue that the
    appellant met the criteria for a dangerous offender designation. The trial
    judge applied the correct legal framework. On the evidence, it was open to the trial
    judge to conclude that he was not satisfied of a reasonable possibility that
    the appellants risk in the community could be controlled by the end of any
    possible long-term supervision order.

B.

Facts

[11]

A brief overview of the facts will suffice to give the necessary context
    to the appellants grounds of appeal.

(1)

Charges arising out of events occurring on August 3-5, 2007

[12]

The complainant testified that on Thursday, August 2, she came home to
    her basement apartment and discovered that the door was unlocked and there was
    damage to the frame of the doorway. Someone had attempted to enter the
    apartment. She got some wood from the hardware store and tried to repair the
    door. She slept on the couch in the living room that night.

[13]

In the early morning hours of Friday, August 3, the complainant woke up
    sensing that someone was in the room. She saw the appellant standing over her.
    He grabbed her and assaulted her on the way to her bedroom. He hit her
    repeatedly on the back of her head, her chin and her face. He made her lay down
    on her bed and stood with his foot on her back. He forced her to undress and
    tied a piece of her clothing around her face. He threatened her and told her he
    was going to kill her  that he had already done seven years in prison and was
    not afraid to do another 15 years for killing her.

[14]

The complainant testified that after the assault, the appellant remained
    in the apartment with her. She tried to go on with life as usual for the sake
    of her children: she did not think she could leave. When Mr. Gray, a friend who
    lived nearby, came by her apartment on Saturday morning to see if she wanted to
    take her children, aged two and four, to the park, she told him to go away. He
    asked what happened to her face. She told him not to worry about it. The complainant
    testified that she let Gray take the children for a few hours while she
    remained inside with the appellant.

[15]

On Sunday, Gray drove the complainant and her two children to a tanning
    salon. He called the police on his own initiative. When he returned to the
    apartment with the complainant and her children, the police were there. The
    appellant had locked himself in the bathroom. He was arrested and charged with
    break and enter, assault causing bodily harm, unlawful confinement, uttering
    threats, and breach of recognizance.

[16]

After the appellants arrest, police searched the apartment and found a
    knapsack of the appellant on the floor in the complainants bedroom together
    with some clothing in a small grocery store bag.

(2)

Charges arising out of events occurring in June 2008the post-offence
    conduct

[17]

In June 2008 the appellant was incarcerated awaiting trial on the August
    2007 charges at issue on this appeal. A corrections officer found a note among
    another inmates possessions and immediately recognized the appellants
    unique handwriting. The officer had become familiar with the appellants
    handwriting as he regularly received request forms from the appellant and also
    reviewed the appellants correspondence.

[18]

The note began by describing the physical appearance of the complainant
    and directed that she should be lured, held hostage and tortured, leaving no
    visible injury, in order to compel her to sign a letter stating that her
    earlier allegations were false and that she wished the charges withdrawn. The
    note further directed that she better make sure not to show up for trial no
    matter what and that she should not cooperate with the Crown but instead
    cooperate with the defence.

[19]

The note also indicated that plan B was to light her head on fire
    without saying anything more than dont snitch. The note described how to
    inform the writer that the task had been accomplished and said that payment
    would be made.

[20]

After the corrections officer disclosed the note to the OPP, the
    appellant was further charged with uttering a threat and obstruct justice.

(3)

Convictions arising out of events occurring in 2000  the similar fact
    evidence

[21]

Similar fact evidence was admitted at trial relating to events in 2000
    involving the appellant and the complainant. The complainant was approximately
    19 years old at the time. In May 2000, the appellant and the complainant were
    dating. The appellant assaulted her in her apartment. She had the locks changed
    on the door and had a girlfriend stay over with her. The following day, the
    appellant broke into the complainants apartment, assaulted her, and forced her
    to shave off her hair. He and two other men who were with him then beat her to
    the point she thought she was going to die. They transported her to Montreal
    from Toronto and held her captive until she was rescued by police from a closet
    in a hotel. She was repeatedly assaulted during the time she was held captive.

[22]

In 2002, a jury found the appellant guilty of several offences relating
    to this conduct, including kidnapping. He was sentenced to four years, in
    addition to three years and four months pre-trial custody time. During the
    proceedings, the appellant was not a cooperative witness.

C.

The Conviction Appeal

(1)

Did the trial judge err in characterizing part of the defence evidence
    as an alibi and rejecting it based on a lack of timely disclosure and the
    failure of the appellant to testify?

[23]

This alleged error concerns a part of the evidence of one particular
    witness called by the defence, McFarland.

[24]

McFarlands evidence was that he picked up the appellant in Pickering
    around 11 p.m. on Friday, August 3, and drove to Toronto where they attended
    Caribana festivities. He testified that the two walked up and down Yonge
    Street, were together off and on throughout the evening, and were otherwise in
    regular telephone contact until they left Toronto and returned to Pickering
    early in the morning of Saturday, August 4. Telephone records revealed calls
    made between the appellant and McFarland between 11:52 p.m. and 4:11 a.m.
    McFarland initially testified that he and the appellant finally parted company
    in the morning of Saturday, August 4th around 7 a.m., but later changed his
    evidence to the effect it could have been as early as 5 a.m.

[25]

During the trial, the Crown objected to the lack of timely disclosure of
    this alibi. The defence did not, at that time, take issue with the Crowns
    characterization of McFarlands evidence. During his closing submissions,
    defence trial counsel (who is not counsel on this appeal) at one point referred
    to McFarlands evidence as an alibi defence that the appellant had plans to go
    out with his friends that weekend, submitting that McFarlands evidence of the
    alibi he provides for [the appellant] on Friday was reliable.

[26]

In response to this submission, the trial judge asked: How do you say
    that counts for an alibi when the alleged home invasion is sometime in the
    early hours of  it might be two, three, four oclock, five oclock in the
    [Friday] morning?  How do you say that is an alibi?

[27]

Defence counsel acknowledged that that was part of the issue and that on
    the complainants evidence she woke up to find the appellant in her apartment
    in the early hours of Friday. He stated: Its not so much an alibi as, It
    couldnt have happened because I wasnt there, but what it is is a period of
    time that [ ] McFarland is suggesting [the appellant] was never there. The
    gist of the defences submission was that if the appellant was not at the
    complainants apartment but was instead with McFarland, he could not have
    unlawfully confined the complainant during that period of time.

[28]

The defence position at trial was that the complainant was fabricating
    her allegation that the appellant had assaulted and confined her. Despite the
    injuries inflicted by the appellant on the complainant in 2000, she had
    continued to have contact with him. The defence submitted the complainant had
    been told by the CAS that if she continued contact with the appellant she would
    lose her children. When the appellant was arrested in the complainants apartment,
    she concocted the allegations to prevent that from happening.

[29]

While there was evidence that could have given rise to the inference
    that the assault took place in the early hours of Saturday morning rather than
    Friday morning, the trial judge accepted the complainants version of events as
    to when the break and enter and assault occurred. McFarlands evidence, if
    accepted by the trial judge, instead rebutted the complainants evidence that
    she felt unable to leave the apartment at any time during August 3-5 and would
    have suggested that the complainant was being untruthful in her narration of
    the weekends events.

[30]

In his reasons relating to the alibi issue, after referring to
R.
    v. Wright
, 2009 ONCA 623, 98 O.R. (3d) 665, and observing that there was
    no timely disclosure of the alibi and that the appellant did not testify in
    support of the alibi, the trial judge stated that he was drawing an adverse
    inference against the veracity of the defence of alibi. The trial judge concluded
    this section of his reasons as follows: In any event, the alibi defence
    proffered was a denial of involvement in the offences alleged on the basis that
    the accused was elsewhere. I reject the alibi defence and I find as a fact that
    [the appellant] was present in [the complainants] apartment August 3rd through
    5th, 2007.

[31]

In light of the evidence he accepted as to when the break and enter and
    assault took place, the trial judges characterization of McFarlands evidence
    as an alibi was an error in that even if that evidence was accepted in its
    entirety it would not have been determinative of the final issue of the
    appellants guilt or innocence: see
R. v. Rawn
, 2015 ONCA 396, 326
    C.C.C. (3d) 128, at para. 23. On the evidence accepted by the trial judge, the
    absence of the appellant from the apartment over Friday night and until
    Saturday at 5 or 7 a.m. would not have resulted in an acquittal of the
    appellant because the facts making up the charges had already taken place a few
    hours after midnight Thursday. The trial judge accordingly erred in law in
    characterizing this portion of McFarlands evidence as an alibi and in drawing
    an adverse inference against its veracity.

(2)

Was the trial judges approach to and assessment of credibility issues
    flawed?

[32]

The appellant puts forward two arguments under this ground of appeal.
    The first is that the trial judge subjected the defence evidence to a higher
    and more exacting level of scrutiny than that of the Crown. The second is that
    the trial judge over-relied on the similar fact evidence and the evidence of
    after the fact conduct.

(a)

Did the trial judge subject the defence evidence to a higher and more
    exacting level of scrutiny than that of the Crown?

[33]

The appellant submits that the trial judge ought not to have rejected
    the evidence of McFarland, another long-time friend of the appellant, Okoko,
    and the complainants neighbour, Gray. He submits that the trial judge
    inaccurately characterized McFarland and Okokos evidence as vague and
    uncertain in relation to the events of August 3-5 and as to the appellant and
    complainant being in a physical relationship. He further submits that the trial
    judge failed to reconcile inconsistencies between the complainants evidence
    and Grays evidence. Overall, the appellant submits that the trial judge
    subjected the defence evidence to a higher and more exacting degree of scrutiny
    than that of the complainant.

[34]

In dealing with this submission I will first outline the general
    principles applicable to appellate review on this ground of appeal. I will then
    briefly outline McFarlands, Okokos, and Grays evidence and consider the
    trial judges treatment of it. Finally, I will review the complainants
    evidence and the trial judges treatment of it.

(i)

General principles

[35]

An argument that the trial judge applied a more stringent standard when
    assessing the defences evidence than when assessing the Crowns evidence is
    difficult to make successfully on appeal: see
R. v. Howe
(2005), 192
    C.C.C. (3d) 480 (Ont. C.A.), at para. 59. As this court has recently observed,
    this is so for two reasons: first, credibility findings are the province of
    the trial judge and attract a very high degree of deference on appeal; second,
    appellate courts invariably view this argument with skepticism, seeing it as a
    veiled invitation to reassess the trial judges credibility determinations:
R.
    v. Aird
, 2013 ONCA 447, 307 O.A.C. 183. Absent palpable and overriding
    error, an appellate court is not entitled to reassess and reweigh evidence:
R.
    v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[36]

To succeed on an uneven scrutiny argument, the appellant must
    demonstrate, through the trial judges reasons or elsewhere in the record, that
    the trial judge applied a higher standard of scrutiny to the evidence of the
    defence: see
Howe
, at para. 59;
R. v. Rhayel
, 2015 ONCA 377,
    324 C.C.C. (3d) 362, at para. 98. Arguments that amount to an assertion that a
    different judge could have reached a different conclusion are not enough to
    succeed on this ground: see
Howe
, at para. 59.

(ii)

McFarlands evidence

[37]

In addition to his evidence about attending Caribana with the appellant,
    McFarland testified that a few times he picked up and dropped off the appellant
    from a location that was consistent with the location of the complainants
    apartment. On one occasion he came into the apartment and offered his credit
    card so that the young woman (whom he later learned from the appellants sister
    had the same first name as the complainant) could process the womans childs
    birth certificate online. McFarland was shown a photo of the complainant and
    testified he was 60% sure this was the same woman he had seen in the apartment
    with the appellant.

(iii)

Okokos evidence

[38]

Okoko testified that when the appellant was first released from prison
    in 2006, the appellant resided with his father, then with Okoko and later with
    a woman named Stacey with whom the appellant was in a relationship. According
    to Okoko, the appellant and the complainant also appeared to be in a
    relationship. He saw the two together regularly during the summer months of
    June, July and August of 2007. He identified the complainant from a photo.

[39]

Okoko also testified that he had made plans with the appellant to attend
    Caribana with friends on the weekend of August 3-5, but that, though he called
    the appellant numerous times, he could not reach him by phone on Friday or
    during the weekend.

(iv)

Grays evidence

[40]

Gray testified that he was the complainants neighbour and that he had
    known her for about a year, and that he would often see her and her children
    when he would bring his own niece to the park nearby. He also indicated that he
    had seen the appellant in the area or in the complainants apartment several
    times.

[41]

He testified that he had made plans with the complainant to attend
    Caribana, but that on Saturday, August 4, he went to her apartment and saw that
    her face was bruised. She refused to leave the apartment, so Gray instead took
    her son with him to Caribana that day. He testified that when he returned home
    early Sunday morning, he had a vision of the complainant in which her neck
    was bruised. This caused him to become scared and led him to call the police
    that morning. When the police had not arrived, he went to the complainants
    house and convinced her to leave the apartment with him. He took her and her
    children to a tanning salon. While she was inside tanning, he again called the
    police, and by the time they returned to her apartment, the police had arrived
    and arrested the appellant.

[42]

In cross-examination, Gray indicated that he had also been at the
    complainants apartment on Friday, and that he had seen her from the top of the
    stairs. He agreed that when he had given his statement to the police
    immediately after the appellant was arrested, he had said that he couldnt
    recall seeing any injuries to the complainants face on Friday, but also agreed
    that he had not seen her face very clearly until Saturday morning.

(v)

The trial judges treatment of McFarlands, Okokos, and Grays evidence

[43]

The appellant submits the evidence of these three witnesses supported
    the defences theory that the appellant was not an unwanted guest in the
    complainants apartment, and that it also suggested the complainant was lying
    about not having ongoing contact with the appellant after his release from
    prison in 2007. The appellant argues that the trial judge unfairly
    characterized McFarlands and Okokos evidence as vague and uncertain and too
    readily dismissed all of Greys evidence, failing to reconcile inconsistencies
    between Grays and the complainants evidence.

[44]

I disagree. The trial judge gave reasons for rejecting McFarlands
    evidence separate from his erroneous rejection of McFarlands alibi evidence.
    The trial judge also gave reasons for rejecting Okokos testimony, and most of
    Greys testimony, that were founded in the evidence.

[45]

The trial judge found that for the most part McFarland was not a
    credible witness. The trial judge noted that McFarland testified to phone calls
    with the appellant that he later acknowledged were not shown in the phone
    records. McFarland stated he never lived with the appellants father yet he
    acknowledged getting a speeding ticket the prior year and the address provided
    on his licence and insurance were that of the appellants father. The trial
    judge noted that McFarland was calculated, deliberately vague and indeed coy
    in terms of his answers and I also found him to be inaccurate in other aspects
    of his testimony. Quite apart from his consideration of the law relating to
    the alibi defence, the trial judge indicated: [McFarland] was deliberately
    vague in his answers and calculating and I formed the impression that he was
    making up his evidence on the fly and in a manner that would place [the
    appellant] in the best light.

[46]

With respect to Okokos evidence, the trial judge noted that, contrary
    to Okokos testimony that he had not been able to reach the appellant during
    the August 3-5 weekend, telephone records showed a number of completed calls
    from Okokos cell phone to the appellants cell phone. He further noted:
    Okokos testimony was vague and often unresponsive to the questions being
    asked  I do not find Matthew Okoko to be a credible witness. In his
    recitation of Okokos evidence, the trial judge also noted that Okoko had been
    in custody for over a year awaiting trial on drug related charges, and that he
    had a criminal record for possession of stolen property.

[47]

Although the trial judge acknowledged that McFarland and Okoko testified
    they had seen the appellant and the complainant together, he found this
    evidence vague and ultimately he rejected it. In rather cryptic fashion the
    trial judge indicated that it was inconsistent for McFarland to say he had
    never seen the appellant with Stacey, the girl with whom he actually lived, yet
    he said he had seen the appellant and complainant together on numerous occasions
    over June, July and August and they were in a relationship. Instead, McFarland
    testified that he never knew Stacey. While the appellant quarrels with the
    trial judges conclusion, it was clearly open to him to find that the evidence
    of these two witnesses was vague and uncertain.

[48]

A review of the entirety of Grays evidence demonstrates a number of
    concerns with the accuracy and reliability of his testimony. The trial judge
    demonstrated in his reasons that he was alive to these concerns, stating: it
    was apparent from the testimony of Adrian Gray that he has unfortunate medical
    issues which causes him to state that he has visions and other mental
    delusions which makes his evidence unreliable in some aspects at this trial.
    Accordingly, the trial judge indicated that he did not accept any of Grays
    evidence except (a) that he attended at the complainants apartment on August
    4, (b) that he saw injuries on her face, and (c) that he called the police on
    August 5  in other words, aspects of his evidence that were corroborated by
    other evidence. Given the obvious concerns, the trial judge was properly
    entitled to be skeptical of this witnesss evidence.

(vi)

The complainants evidence

[49]

The trial judge began his assessment of the complainants evidence by
    commenting, While there is considerable difficulty with the evidence of [ ] Okoko
    and [ ] McFarland, there is [
sic
] equally troubling issues in relation
    to the evidence of [the complainant] as it relates to the phone records.

[50]

In respect of the 2000 events, the complainant admitted to lying under
    oath in relation to the allegations of violence and abuse by the appellant both
    at the preliminary inquiry and at trial. She explained her failure to abide by
    her oath on the basis that back then she was young, infatuated with the
    appellant and driven to protect him. She admitted her actions might seem
    illogical.

[51]

The trial judge reviewed the evidence relating to the records of
    telephone calls between the appellant and complainant and found, [S]he is a
    stranger to the truth in terms of her involvement and her contact with [the
    appellant]. He stated, I find her infatuation with [the appellant] continued
    even after the chance meeting in the grocery store in 2007. I find she made
    numerous calls to [the appellant] following his release from prison and prior
    to the present charges.

[52]

The trial judge then observed that the case did not rest solely on the
    complainants evidence: There is other evidence which corroborates her
    evidence relating to the assault, as well as similar fact evidence and post
    offence and other discreditable conduct, all of which provide circumstantial
    evidence to weigh and assess in terms of [the complainants] evidence.

[53]

Having admitted the evidence pertaining to the 2000 charges as similar
    fact evidence, the trial judge noted the complainant began living with the
    appellant upon his release on bail in April 2000 and continued to reside with
    him until May 2000. After the kidnapping in May 2000, the CAS became involved
    and the complainant entered the witness protection program on the understanding
    she would stay away from the appellant. She continued to have telephone and
    written communication with him. Although the complainant first testified she
    could not remember why she was kicked out of the program, she did agree that it
    was possibly because of her continued communications with the appellant.

[54]

The trial judge found the complainant also lied under oath about her
    contact with the appellant after his release from prison in 2006. After the
    appellant was arrested on August 5, 2007, she attended at the police station
    and provided a videotaped statement in which she said she had not been in
    contact with the appellant for seven years. During cross-examination, she
    admitted she saw him at a grocery store in November 2006. After the chance
    meeting in the grocery store, she called the appellants fathers house.
    Initially she stated that these were the only two instances of contact prior to
    August 3, 2007. However, telephone records demonstrated over 70 calls between
    her and the appellant during the months of June, July and August. The
    complainant refused to identify her telephone numbers or the number of the
    appellant.

[55]

The defence evidence was introduced to show the complainant and the
    appellant were in a continuing physical relationship and that she fabricated
    her evidence to avoid losing custody of her children. The trial judge rejected
    the extent of contact to which the defence witnesses testified but he accepted
    that there had been further contact, at least through telephone calls, and
    rejected the complainants evidence on this point.

(vii)

Conclusion on the uneven scrutiny ground of appeal

[56]

As the review of the evidence above demonstrates, the trial judge was
    alive to the issue of the complainants credibility and the many
    inconsistencies in her evidence. He appropriately dealt with those
    contradictions. This was not a he said she said case. As the trial judge
    noted, the case against the appellant did not rest solely on the complainants
    credibility.

[57]

The trial judge appropriately scrutinized the defence evidence and also
    extensively reviewed and scrutinized that of the complainant. I see nothing in
    the trial judges reasons or the record to suggest that he subjected the
    evidence of the defence witnesses to a higher level of scrutiny than that of
    the Crown witnesses.

(b)

Did the trial judge over-rely on the similar fact evidence and the
    evidence of after the fact conduct?

[58]

This ground of appeal can be disposed of summarily.

[59]

The appellant does not challenge the admissibility of this evidence. The
    trial judge properly admitted the evidence for the following purposes: (i)
    background and context of the relationship; (ii) possible motive or
animus
;

(iii) state of mind of the complainant; (iv) actus reus;

and, (v)
    to rebut the allegation of recent fabrication.

[60]

The appellant submits that the trial judge inferred guilt through pure
    disposition reasoning. However, the trial judges reasons indicate that he
    cautioned himself against the prohibited line of propensity reasoning and that
    he properly used the evidence for the purposes for which it was admitted,
    namely, as pieces of circumstantial evidence to be considered in the context of
    the evidence in its entirety.

[61]

The appellants submission that the trial judge placed over reliance on
    this evidence is in effect a request for this court to reweigh it. As I have
    noted earlier, the weight to be given to each piece of evidence is for the
    trial judge to decide, and an appellate court is not entitled to reassess and
    reweigh evidence, absent the demonstration of a palpable and overriding error: see
Gagnon
, at para. 20. That has not been shown here.

(3)

Should the curative proviso be applied to the alibi error?

[62]

In the face of an error of law by a trial judge, an appellate court may
    nevertheless dismiss the appeal, if it is of the opinion that no substantial
    wrong or miscarriage of justice has occurred under s. 686(1)(b)(iii)  the
    curative proviso.

[63]

The prerequisites for the application of the proviso are succinctly
    stated by Moldaver J. on behalf of the majority in
R. v. Sekhon
,

2014
    SCC 15, [2014] 1 S.C.R. 272, at para. 53:

As this Court has repeatedly asserted, the curative proviso can
    only be applied where there is no reasonable possibility that the verdict
    would have been different had the error  not been made. Flowing from this
    principle  there are two situations where the use of s. 686(1)(
b
)(iii)
    is appropriate: 1) where the error is harmless or trivial; or 2) where the
    evidence is so overwhelming that, notwithstanding that the error is not minor,
    the trier of fact would inevitably convict. [Citations omitted.]

The Crown bears the burden of demonstrating that the
    curative proviso is applicable and of satisfying the court that the conviction
    should be upheld notwithstanding the legal error:
R. v. Van
, 2009 SCC
    22, [2009] 1 S.C.R. 716, at para. 34.

[64]

On appeal, the Crown submits that the trial judge did not simply reject
    McFarlands evidence of attending at Caribana with the appellant because of its
    problems as alibi evidence, but also because his evidence generally was
    calculated, deliberately vague, coy and inaccurate. The Crown submits that
    these credibility findings were supported by the record, and that the alibi
    evidence formed an inconsequential part of the trial judges reasons in an
    otherwise strong case against the appellant. As to the effect of the alibi
    error, although the trial judge rejected McFarlands alibi evidence, he did
    not convict the appellant of unlawful confinement for the entirety of the
    August 3-5 period. The trial judge referred to the jurisprudence in
R. v.
    Pritchard
,

2008 SCC 59, [2008] 3 S.C.R. 195, among other cases,
    for the proposition that what must be proved is restraint for a significant
    period of time. The trial judge accepted the complainants evidence that the
    assault by the appellant during the early hours of Friday, August 3 had gone on
    for over an hour and that this amounted to confinement for a significant period
    of time. Thus, the unlawful confinement as found by the trial judge does not
    include the period of time for which McFarlands evidence was put forward. Therefore,
    no substantial wrong or miscarriage of justice was occasioned by the alibi
    error.

[65]

The appellants position is that the trial judges erroneous rejection
    of McFarlands evidence on this point negatively affected his assessment of
    McFarlands credibility generally, and led him to reject McFarlands evidence
    in its totality, including his evidence that the appellant and complainant had
    ongoing physical contact. The appellant refers to
R. v. Rohde
, 2009
    ONCA 463, 246 C.C.C. (3d) 18, at paras. 16-18 and
Rawn
, at para. 24,
    in this regard. McFarlands evidence was important to the defence theory that
    the appellant and complainant were in an ongoing relationship, that the
    appellant was not an uninvited guest in the complainants apartment, and that
    the complainant was fabricating the allegations to avoid losing her children to
    CAS. The appellant argues that this court cannot be sure that the trial judge
    would have reached the same conclusions as to the complainants credibility and
    so it cannot be said that the verdicts would inevitably have been the same
    absent the error. The appellant cautions that, where credibility issues are
    involved, an appellate court must be very cautious in applying the curative
    proviso.

[66]

While I agree that an appellate court must be very cautious in applying
    the proviso, I would not agree with the appellants submission that the alibi
    error alone led him to reject McFarlands evidence in its totality including
    that the appellant and complainant were in a relationship. The reason the trial
    judge specifically gave for rejecting McFarlands evidence that the appellant
    and complainant were in a relationship was that it appeared inconsistent with McFarlands
    acknowledgment he had never met Stacey, the girl with whom the appellant
    actually lived. Significantly, he found McFarlands relationship evidence vague
    and uncertain. The trial judge also observed that McFarland was lying when he testified
    that he had never lived with the appellants father, yet when he received a
    speeding ticket, the address listed on his license and insurance certificate
    were that of the appellants father. The trial judges rejection of McFarlands
    evidence was informed by other specific reasons.

[67]

Moreover, even if, contrary to the complainants evidence, the
    complainant and the appellant were in a relationship, that fact would not be a
    defence to the charges. While an appellate court must be cautious in applying
    the proviso where a case turns on credibility, there is no rule excluding its
    application in such a case: see
R. v. Raghunauth
(2005), 203 O.A.C. 54
    (C.A.). As LeBel J. observed with respect to both branches of the proviso in
Van
,
    at para. 36, the underlying question is always whether the verdict would have
    been the same if the error had not been committed:
R. v. Bevan
, [1993]
    2 S.C.R. 599.

[68]

The trial judge was alive to the credibility issues respecting the
    complainants evidence. He did not accept the complainants evidence that she
    had no ongoing contact with the appellant because the telephone records
    indicated otherwise. He accepted her evidence that on this occasion the
    appellant was not an invited guest because it was supported by circumstantial
    evidence. Evidence corroborative of the complainants account includes: the
    damage to the door frame of the complainants apartment; the injuries to the
    complainants face; the blood stain found on the complainants mattress; and
    the presence of the accused in the complainants apartment when police arrived.
    The complainants identification of the appellant as the perpetrator of the
    assault on her is further supported by the evidence of the appellants
    post-offence conduct as well as the earlier similar fact evidence. Even if the
    conclusion that the appellant and complainant had ongoing physical contact can
    be drawn, the only reasonable conclusion on the evidence is that on this
    occasion he was not a welcome guest.

[69]

The submission that the complainants motive for saying that the
    appellant assaulted her was that she risked losing custody of her children to
    CAS if she had ongoing contact with the appellant was simply that, a submission
    made by defence counsel. It was not evidence. In his cross-examination of the
    complainant at trial, defence counsel put to her that during her evidence at
    the preliminary inquiry she testified that her mother had told her she should
    go to the police station and blame the appellant for something or else she would
    risk losing her children. The complainant testified that what she had said at
    the preliminary inquiry was not true. She said the CAS became involved after
    the 2007 events to make sure she was alright and that she had voluntarily
    entered into a six-month supervision order with respect to her children. The
    complainants response could be used to assess her credibility. However,
    inasmuch as the complainant did not adopt her evidence from the preliminary
    inquiry but said she lied, and defence counsel did not seek to admit that part
    of the preliminary inquiry transcript for the truth of its contents  for
    example, under the principled exception to the hearsay rule (see e.g.
R. v.
    B. (K.G.)
, [1993] 1 S.C.R. 740, at p. 799)  what the complainant said at
    the preliminary inquiry was not evidence of the truth of its contents.

[70]

The fact that the accused did not give evidence in the face of
    inculpatory facts may properly be taken into account in deciding whether or
    not a substantial wrong or miscarriage of justice has occurred:
R. v.
    Nalon
(1973), 14 C.C.C. (2d) 49, at p. 63,
per
Martin J.A.; see
    also
Avon v. R.
, [1971] S.C.R. 650, at p. 657;
Sellars v. R.
,
    [1980] 1 S.C.R. 527, at p. 535.

[71]

The case against the appellant was overwhelming and the verdict would
    have been the same if the error had not been committed. I would apply the
    curative proviso in s. 686(1)(b)(iii).

D.

The Sentence Appeal

[72]

After the appellant was convicted, the Crown applied under
    s. 752.1(1) for the preparation of an assessment report. A psychiatrist,
    Dr. Hucker, prepared that report and it was introduced as evidence during the
    appellants dangerous offender hearing. Dr. Hucker was also cross-examined
    during the hearing.

[73]

The appellant contends primarily that Dr. Huckers opinion was weakened
    significantly during the course of his cross-examination and that the trial
    judge, though demonstrating in his reasons that he was aware of the need to
    critically assess reports prepared by psychiatrists in connection with a
    dangerous offender application, nevertheless erred in not according minimal
    weight to Dr. Huckers opinion.

[74]

While I agree generally with the appellants observation that Dr. Hucker
    conceded that the scores the appellant received on the various tests completed
    as part of his assessment report should be revised, I would disagree that this
    alone suggested that the trial judge should have accorded minimal weight to
    Dr. Huckers evidence. Indeed, it would appear that a large part of the
    reason why Dr. Hucker was forced to revise his scoring on the various tests was
    because the appellant refused to participate in any assessment. As a result
    Dr. Hucker was forced to complete his assessment based on materials
    provided to him by the Crown.

[75]

The trial judge did not accept Dr. Huckers evidence uncritically. He
    noted the legal principles applicable to the assessment of this evidence,
    including the need to critically assess and not merely rubberstamp a
    psychiatrists opinion. As the Crown notes, the standard of review that applies
    to a trial judges finding that a person is a dangerous offender is
    reasonableness: see
R. v. Sipos
, [1997] 2 S.C.R. 260, at para. 35.
    Further, deference is to be accorded to the sentencing judge on issues of fact
    finding and credibility, including the critical question of the reasonable
    possibility of eventual control of the offender in the community:
R. v.
    Ramgadoo
, 2012 ONCA 91, 293 C.C.C. (3d) 157, at para. 42.

[76]

Therefore, the question is whether the trial judges conclusion was
    reasonably supported by the evidence. In my view, it was. Here, even after
    Dr. Hucker revised his opinion on the scoring of the various psychiatric
    assessment tests, he testified that he remained of the opinion that the
    appellant remained a risk to re-offend. Another significant factor in Dr.
    Huckers assessment was the appellants ongoing refusal to participate not just
    in the preparation of the assessment report, but in treatment generally. For
    example, in connection with the discussion of his bottom line assessment of
    the appellants risk in light of his adjustment of the VRAG (Violence Risk
    Assessment Guide) and PCL-R (Psychopathy Checklist-Revised) scores, designed
    to assess the appellants risk for violent re-offence and possibility of
    eventual control in the community, he noted that:

That risk is based primarily on the record but also on his lack
    of co-operation with individuals who might have been able to point him in the
    direction of counseling, relevant programming, and all the things that were
    identified in the correction plan that was made for him in the early 2000s.

[77]

Dr. Hucker also further commented that:

the big problem is his failure to cooperate with professionals
    and get into treatment programs. So theres been nothing done to ameliorate his
    risk, so that although psychopathy is one major variable in making treatment
    approaches successful, the other reasons are failure to accept responsibility
    and to realize that youve got a problem and in this case, a very serious
    problem.

[78]

In other words, while the scores were one part of Dr. Huckers opinion,
    the appellants failure to participate meaningfully in previous treatment
    possibilities was also an important factor driving his conclusion.

[79]

In my view, the trial judges reasons demonstrate that he was aware of
    the relevant legal principles and appropriately took into consideration the
    shortcomings in Dr. Huckers report. His conclusions, that the appellant met
    the criteria for a dangerous offender designation and that there was no
    reasonable possibility of eventual control in the community, are accordingly
    entitled to deference.

[80]

I would dismiss the sentence appeal.

Released: GE June 14, 2016

K.M. Weiler J.A.

I agree Janet
    Simmons J.A.

I agree Gloria
    Epstein 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), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Giles, 2016 ONCA 510

DATE: 20160624

DOCKET: C61053

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Giles

Appellant

Najma Jamaldin, for the appellant

Katherine Beaudoin, for the respondent

Heard: June 24, 2016

On appeal from the sentence imposed by Justice Gorman, of
    the Superior Court of Justice, dated November 3, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We would not interfere with the sentence imposed.  The trial judge was
    aware of the appellants unfortunate past.  However, in the context of the
    appellants criminal part for sexual offences involving children and the very
    serious nature of these offences (multiple assaults on multiple children), the
    fact that the appellant had been the victim of sexual abuse as a child, could not
    mitigate the sentence.

[2]

The facts were accepted as substantially correct.  Some ambivalence in
    counsels submissions about the exact number of assaults contemplated by the
    reference to multiple assaults does not amount to a dispute over the facts
    triggering the need for a
Gardiner
 hearing.

[3]

The sentence was fit and consistent with the decisions of this court.

[4]

Leave is granted and the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Guthrie, 2016 ONCA 466

DATE: 20160614

DOCKET: C61463

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Guthrie

Appellant

Dennis Guthrie, in person

Joseph Di Luca,
amicus

Tracy Kozlowski, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on June 2, 2014 by Justice
    Julianne Parfett of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant, Dennis Guthrie, was convicted of aggravated assault of a
    fellow resident at the Shepherds of Good Hope shelter in Toronto.

[2]

The appellant was arrested in the late evening, charged with assault
    causing bodily harm, and was cautioned about his right to silence and right to
    counsel. He met with duty counsel and was placed in a cell for the night. The
    next morning - about 11 hours after his arrest and initial caution  he was
    interviewed by the police. Although he had not been under the influence of
    alcohol or drugs at the time of his arrest, he advised the interviewing officer
    that he did not remember any of the events of the previous evening.

[3]

The interviewing officer asked the appellant if he wanted to speak to a
    lawyer. The appellant responded if I already have, then I already have. The
    interviewing officer reminded the appellant twice of his right to silence. In
    response, the appellant told the interviewing officer that he knew the drill
    and would have stayed in the cell if he was not willing to talk. The
    interviewing officer told him that he had been arrested for assault, at which
    point the appellant asked whether the victim was alive. He was assured that he
    was, and the interview continued.

[4]

The appellant was ultimately charged with assault with a weapon and
    aggravated assault, and was convicted at trial of aggravated assault. The
    appellant appeals that conviction on the basis that: (1) the trial judge
    misdirected the jury as to the nature of the appellants criminal record; and
    (2) the trial judge erred in finding that the appellants rights under s. 10(b)
    of the
Charter of Rights and Freedoms
were not infringed.

[5]

For the reasons set out below, the appeal is dismissed.

Issue 1: The appellants criminal record

[6]

The appellant argued on his own behalf without the assistance of
amicus
,
    that he was prejudiced at trial by the admission into evidence of his
    unredacted criminal record. At trial, the appellant was unsuccessful on a
Corbett
application to edit his criminal record to remove convictions from 2001 and
    2005, which he argued were too remote in time to be of probative value. The
    trial judge accepted the Crowns submission that if these convictions were
    removed, it would create a misimpression that the appellant had been
    law-abiding for a large stretch of time. The appellant believed that accepting
    this submission would suggest that he had been continuously criminally active from
    2001.

[7]

There is no merit to this ground of appeal. For the appellants unedited
    criminal record to be before the jury meant that both his convictions and the
    periods of time between convictions were in evidence. It did not communicate to
    the jury that he was engaged in criminal activity during the gaps in the
    record.

Issue 2: Voluntariness of
    the appellants statement and s. 10(b) of the
Charter

[8]

The
amicus
, on the appellants behalf, argued that the trial
    judge erred in finding that the appellants statement to the police was
    voluntary, and that his rights under s. 10(b) of the
Charter
were not
    violated. This argument is advanced on three bases: (1) a re-caution as to the
    right to counsel and the right to remain silent was required at the start of
    the police interview because of the length of time that had passed since the appellant
    was taken into custody and cautioned the previous night, (2) a re-caution was
    required because the appellant faced a change in jeopardy over the course of
    the police interview; and (3) a re-caution was required because the appellant
    had an absence of memory from the previous night, including the caution and
    meeting with counsel.

[9]

As set out below, the trial judge made no error in finding that the
    appellants s. 10(b) rights were not violated and that no re-caution was
    required.

[10]

First, the trial judge made no error in holding that a lengthy lapse of
    time between the exercise of the right to counsel and the start of a police
    interview does not automatically require an additional caution and opportunity
    to consult counsel. Significantly, as explained below, there was no change in
    jeopardy in the intervening period and, as the trial judge noted, the
    interviewing officer reminded the appellant of his right to remain silent
    before the interview began.

[11]

Second, the trial judges analysis of the change in jeopardy was
    carefully reasoned and grounded in correct legal principles. The appellant was
    arrested for assault causing bodily harm, but by the conclusion of the
    interview, the interviewing officer decided to charge him with aggravated
    assault and assault with a weapon. As the Supreme Court held in
R. v. Evans
,
    [1991] 1 S.C.R. 869 at para. 48, a change in jeopardy will require an accused
    to be provided with an additional opportunity to consult counsel, where there
    is either a discrete change in the purpose of the investigation, one involving
    a different and unrelated offence or a significantly more serious offence that
    that contemplated at the time of the warning.

[12]

The trial judge concluded that although aggravated assault and assault
    with a weapon are more serious offences than assault causing bodily harm, they
    are related offences and not significantly more serious as contemplated in
Evans
.
    We see no error in this conclusion. Although the interviewing officer commenced
    the interview by reminding the appellant that he had been arrested for
    assault, and did not specify further, the appellants immediate response
    enquiring whether the victim was alive  indicated that he understood the
    jeopardy that he faced.

[13]

Finally, the trial judge made no error in rejecting the appellants
    argument that his claim to having no memory of his arrest, caution, and meeting
    with counsel, required a re-caution and additional opportunity to exercise the
    right to counsel.

[14]

The trial judge made a factual finding rejecting the appellants claim
    that he had no memory. She accepted the interviewing officers testimony that
    he believed the appellant to be lying in this regard, and noted the absence of
    any drug or alcohol abuse that might explain a blackout. She rejected the
    appellants argument that his bipolar disorder makes him prone to blackouts, on
    the basis that the appellant provided no evidence corroborating his assertion
    that he is bipolar or that suffering from bipolar disorder can make a person
    prone to blackouts. The appellant argued that the trial judge erred in not considering
    his statement in the police interview that he can tell when he is beginning a
    manic episode, and that his memory eventually returns. Although the trial judge
    did not specifically refer to this evidence, she was not required to. The trial
    judge did not accept the appellants evidence on this issue as truthful. The
    trial judges factual finding that the appellant did not suffer from any memory
    loss is entitled to deference, and there is no basis on which we could disturb
    it on appeal.

[15]

Although this factual finding is dispositive of this third limb of this
    ground of appeal, the trial judge also marshalled ample evidence to support the
    conclusion that, even if the appellant had no memory of the night of his
    arrest, the interviewing officer provided him with sufficient reminders of his
    right to silence and right to speak to a lawyer. At the outset of the
    interview, the interviewing officer asked if the appellant wished to speak to a
    lawyer and reminded him twice that he did not have to speak to the officer. The
    appellant assured the interviewing officer that he understood, that he knew his
    rights, that he knew the drill, and that he would have stayed in the cell
    if he did not want to talk. The trial judge did not simply take these statements
    at face value, but looked at the totality of the appellants statements and
    behaviour to determine that he in fact understood his rights. The appellant has
    not identified any reviewable errors.

[16]

We would like to express our appreciation for the assistance of the
amicus
on the appeal.

Disposition

[17]

The appeal is dismissed.

K. Feldman J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Jewell, 2016 ONCA 480

DATE: 20160616

DOCKET: C58886

Hoy A.C.J.O., Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Susanne Jewell

Appellant

Robin K. McKechney, for the appellant

Amy Rose, for the respondent

Heard and released orally:  June 13, 2016

On appeal from the sentence imposed by Justice Louise
    Serré of the Ontario Court of Justice on May 29, 2014.

ENDORSEMENT

[1]

The appellant was charged with two counts of assault, one count of
    criminal negligence causing bodily harm, one count of mischief and one count of
    criminal harassment arising from her employment as a personal support worker at
    a nursing home.  At the preliminary inquiry, the appellant was committed for
    trial on all counts.

[2]

Following the conclusion of the preliminary inquiry, the Crown and
    defence agreed on a joint submission for an eight-month conditional sentence
    followed by one years probation on a guilty plea by the appellant to the two
    counts of assault and one count of criminal harassment.  Counsel met with the preliminary
    inquiry judge to discuss the proposed resolution.  At the conclusion of that
    meeting, counsel for the appellant understood that the preliminary inquiry
    judge had approved the proposal and communicated this to the appellant.  The
    appellant then elected to be tried by the preliminary inquiry judge and pled
    guilty to the two counts of assault and one count of criminal harassment.
    However, the judge rejected the joint submission and imposed a 90-day
    intermittent sentence on one count of assault, followed by a six-month
    conditional sentence on the remaining two counts to which the appellant had
    pled guilty.

[3]

The appellant now appeals her conviction arguing that her guilty plea
    should be set aside.  She also applies for leave to appeal the sentence
    imposed.

[4]

While we are not persuaded that the appellants guilty plea should be
    set aside, we agree that the sentence imposed cannot stand.  Counsel for the
    Crown does not take issue with the evidence of trial counsel that the
    preliminary inquiry judge had indicated her approval of the joint submission
    before the appellant pled guilty.  Moreover, the judge did not provide any
    explanation why the joint submission was contrary to the public interest or why
    the jointly-proposed sentence would bring the administration of justice into
    disrepute.  This omission is particularly glaring, given her prior
    communication with counsel.

[5]

In the circumstances, we dismiss the appeal against conviction, grant
    leave to appeal sentence, allow the appeal against sentence and impose sentence
    in accordance with the joint submission.

Alexandra
    Hoy A.C.J.O.

John Laskin J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jupiter, 2016 ONCA 484

DATE: 20160616

DOCKET: C61092

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isan Jupiter

Appellant

Elizabeth Bingham, for the appellant

Jeremy Streeter, for the respondent

Heard and released orally:  June 1, 2016

On appeal from the sentence imposed on May 25, 2015 by
    Justice M. Felix of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

While the sentence is clearly at the high end of the range for this
    offence, we are not persuaded that there is any error in principle. The trial
    judge considered the particular circumstances of this offender including his
    very lengthy criminal record and the aggravating fact that this offence was
    committed with his son.

[2]

His determination of credit for pre-trial custody as here where he
    considered the relevant factors is entitled to deference in this court.

[3]

While leave to appeal is granted, the appeal is dismissed.

J.
    MacFarland J.A.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.