COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Doherty, 2012 ONCA 855

DATE: 20121205

DOCKET: C55608

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick James Doherty

Appellant

J. Sickinger for Jeffery Goldglass, for the appellant

Kim Crosbie, for the respondent

Heard: November 6, 2012

On appeal from the conviction entered on March 6, 2012 by
    Justice M.F. Woolcott of the Ontario Court of Justice and the sentences imposed
    on March 8, 2012.

OConnor A.C.J.O.:

[1]

The appellant was convicted of five
    offences:  criminal harassment; two counts of attempting to obstruct justice;
    and two counts of breaching a court order.  He pleaded guilty to the latter two
    charges, and was convicted of the first three.  Justice Woolcott, of the
    Ontario Court of Justice in Kitchener, sentenced the appellant to five and one
    half years in custody less two months credit for pretrial custody.  She broke
    the sentence down as follows:  four years for criminal harassment; one year
    each on the two counts of attempting to obstruct justice, consecutive to the four
    years, but concurrent to each other; and six months on each breach, consecutive
    to the other sentences, but concurrent to each other.  The appellant appeals these
    sentences.

[2]

In November 2011, the appellant met the
    victim, Agnieszka Mikulska, when he responded to an advertisement she had
    placed on an internet site seeking a roommate.  Ms. Mikulska and the appellant
    had some contact over a brief period of time.  However, Ms. Mikulska decided to
    accept someone else, a woman, as her new roommate.  The appellant, whose
    demeanour had previously been kind and polite, changed.  He became verbally
    abusive, called Ms. Mikulska repeatedly, insulted her, dropped in on her and
    slipped notes under her door.  He also made threats against her about what may
    happen to her when she was walking her dog.  He said he knew the vice-president
    of Hells Angels and she might be killed.

[3]

Ms. Mikulska told the appellant, on
    more than one occasion, to stop calling her and not to come and see her.  On
    December 11, 2011, Ms. Mikulska spoke with the police who indicated they would
    contact the appellant and advise him not to have further contact with her.  On
    December 13th, Ms. Mikulska called the police to complain of further telephone
    calls.  Officers spoke to the appellant and told him not to contact her anymore.

[4]

On December 14th, Ms. Mikulska contacted
    police at 3:00 a.m.  A police officer attended at her apartment, and she
    indicated the appellant had called her at 2:15 and again at 2:19 a.m.  She
    testified that the calls involved some heavy breathing and she knew they were
    coming from the appellant because of the call display.

[5]

The police arrested the appellant and
    charged him with criminal harassment.  On December 14th, a justice made an
    order pursuant to s. 516(2) of the
Criminal Code
that the appellant abstain from communicating directly or
    indirectly with Ms. Mikulska.  This order was continued on December 21, 2011,
    in the form of a s. 515(12) non-communication order.

[6]

Notwithstanding this court order, while
    detained in custody, the appellant wrote a letter to Ms. Mikulska.  The letter
    was threatening.  In the letter, the appellant also tried to convince her to
    change her statements about the events leading up to the charges against him on
    December 14.  The appellant sent a second letter  this one addressed using Ms.
    Mikulskas first name and his last name  Angie Doherty.  The suggestion that
    they were married frightened Ms. Mikulska as did the fact that despite a court
    order and being in jail, the appellant continued to contact her.  The appellant
    also wrote a letter to a friend of his suggesting that his friend should give
    certain evidence  set out in the letter  in the appellants defence.

[7]

Ms. Mikulska suffered greatly as a
    result of the harassment.  She was terrified of the appellant.

[8]

The appellant argues that the sentence
    of four years imprisonment for the charge of criminal harassment is outside the
    appropriate range and, therefore, unfit.  He also argues that the cumulative
    effect of the sentences of five and one half years imprisonment is excessive.
    He contends that the trial judge overemphasized the principle of separating the
    offender from society and attached undue weight to his criminal record.

[9]

I do not accept these arguments.  While
    the sentence is certainly significant for these offences, in my view, it is not
    unjustifiably so, nor is it unfit.

[10]

There are a number of factors relating
    to the appellant and his offences that call for the imposition of a lengthy
    sentence.  The appellant, who was 53 years old at the time of sentencing, has a
    lengthy criminal record.  As the trial judge put it, his record is the
    defining feature of his adult life.  He has over 70 convictions from 1976 to
    the present.  Of those, 27 are for breaches of court orders, breaches of
    probation or failing to appear.  Frequently, he breached his probation orders
    shortly after they were imposed.

[11]

The appellant also has a record for
    related offences.  He has 18 convictions for uttering threats, 10 convictions
    for weapon offences and offences of violence, and three for criminal
    harassment.  Ms. Mikulska is the fourth woman he has subjected to abuse and
    harassment.  His record shows, as the trial judge put it, that he  is
    incapable of functioning appropriately in terms of his relationships with
    others.

[12]

The
    appellant persisted in his harassment of Ms. Mikulska after she, the police,
    and even the court ordered him to stop.  Indeed, he not only persisted in his
    behaviour, he escalated it.  He lacks insight into the wrongfulness of his
    actions and the impact those actions have had on Ms. Mikulska.  The trial judge
    said:

[T]he offender has no respect for
    the personal contact he had established with the victim.  He had no respect for
    the police who were attempting to assist the victim and he had an absolute
    disregard and contempt for the courts orders or for the system of justice
    whatsoever.

[13]

Ms.
    Mikulska suffered mentally and physically as a result of the appellants
    harassment.  She lost weight, lost sleep and was anxious and worried about what
    he may do to her.  The impact on her was magnified each time he ignored her
    pleas to stop, the police warnings and the court orders.

[14]

The
    trial judge had an opportunity to hear Ms. Mikulskas evidence and to observe
    her directly.  She described
Ms. Mikulska as follows
:

The victim was an identifiably fragile woman when she came into
    contact with the offender, and I have no doubt whatsoever that Mr. Doherty
    identified her as fragile.

Based on what I was able [to] observe from what I heard in her
    evidence in court she was a devastated person by the time this matter came to
    court on these charges and that was in large part because of the behaviour of
    Mr. Doherty.  In my view, she fell within that category of witness who was re-victimized
    by having to come to court and give evidence.

[15]

I
    agree with the respondent that the appellant is not entitled to mitigation on
    the basis that there were no physical assaults.  As the trial judge noted,
    submissions suggesting that the lack of physical violence makes this offence
    less serious, reflect a failure to appreciate that the primary impact of
    harassment is very often psychological  there is no requirement that there be
    physical harm to make out a very serious case of criminal harassment.

[16]

The
    sentences imposed by the trial judge are entitled to deference in this court.
    It is worth noting that the trial judge conducted a four-day trial on the
    harassment and obstruction charges.  She heard from Ms. Mikulska firsthand
    about the fear and trauma she had experienced.  She was also able to observe
    the appellant throughout the proceedings and engaged him in discussion during
    the sentencing hearing.  She was in a good position to assess his attitude,
    demeanour and potential for rehabilitation.

[17]

As
    this court explained in
R. v Ramage
, 2010 ONCA 488, at para. 71:

A deferential standard of review on sentence appeals also
    recognizes that a trial judge has an advantage over the appellate court when it
    comes to balancing the competing interests that play in sentencing.  The trial
    judge gains an appreciation of the relevant events and an insight into the
    participants in those events  particularly the accused  that cannot be
    revealed by appellate review of a transcript.

[18]

The
    sentencing proceedings were comprehensive. The trial judges reasons covered 30
    pages.  She considered the relevant factors, including the appellants
    circumstances and his addictions, and the impact of his offences on Ms.
    Mikulska.  The trial judge recognized, properly, that the primary principles at
    play in sentencing this offender for these offences were deterrence and
    denunciation:  see
R. v. Bates
(2000)
, 146 C.C.C. (3d) 321 (Ont. C.A.).

[19]

It
    was also appropriate for the trial judge to consider the need to separate this
    offender from society in order to protect society from his criminal behaviour.
    The appellant is an incorrigible offender.  As I have said, he has related
    convictions against three other women, as well as convictions for offences of
    violence and the use of weapons.  He repeatedly disregards court orders.  The
    trial judge quite correctly determined that it was important to ensure that the
    appellant was prevented, as far as possible, from continuing to harass Ms.
    Mikulska.  The trial judge was concerned that the appellant had been sentenced
    to two years imprisonment on three prior occasions and those sentences clearly
    did not deter him.

[20]

The
    appellant does not take serious issue with the sentences imposed for the two
    charges of obstruction of justice and the two charges of breaching a court
    order.  He argues, however, that the totality of the sentences  five and one
    half years imprisonment  is excessive.

[21]

In
    my view, given the factors outlined above, the sentences, while lengthy, do not
    fall outside what should be considered as an appropriate range for these
    offences and this offender.

[22]

Finally,
    I do not agree with the appellants argument that the trial judge imposed a
    sentence that was longer than what was, in effect, a joint submission at trial.
    I do not agree that there was a joint submission.  Counsel submitted different
    ranges for these offences.  The trial judge informed both counsel that she was
    considering imposing a sentence above the ranges suggested by counsel, and she
    provided both counsel with an opportunity to respond with further submissions.
    After hearing those submissions, the trial judge explained, in considerable
    detail, why she chose to impose the sentences she did.

[23]

The
    trial judge was entitled to impose a sentence above that which was originally
    suggested by Crown counsel.  She found that the range counsel submitted did not
    reflect the seriousness of the offences  committed by this particular
    offender.  While judges must consider the submissions of counsel, they must in
    the end impose sentences that they consider fit and just in the circumstances.

[24]

In
    the result, I would dismiss the appeal against these sentences.

RELEASED: DOC  DEC 05 2012

Dennis OConnor
    A.C.J.O.

I agree J.C.
    MacPherson J.A.

I agree E.A. Cronk
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ellis, 2012 ONCA
    906

DATE: 20121221

DOCKET: C53178

Doherty, MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Ellis

Appellant

Dale Ives, for the appellant

Amy Alyea and Grace Choi, for the respondent

Heard and released orally: December 19, 2012

On appeal from the finding of not criminally responsible
    on March 11, 2009 by Justice Norman S. Douglas of the Ontario Court of Justice,
    sitting without a jury.

By
    the Court:

[1]

In the early morning hours of October 18, 2008, the appellant entered
    the home of his adoptive parents and attacked them with a club and sword. On
    December 22, 2008, he pleaded guilty to two counts of assault with a weapon
    contrary to s. 267(a) of the
Criminal Code
.

[2]

The Crown requested an assessment of the appellants mental condition
    pursuant to s. 672.11 of the
Criminal Code
. Dr. W.J. Komer conducted
    an assessment and concluded:

Mr. Ellis is, in my opinion, fit to stand trial and likely
    criminally responsible for his actions with regards to mental disorder. He
    reported having an appreciation of the nature and quality of his actions and a
    knowledge of their wrongfulness.

[3]

The trial judge granted the Crowns request for a second assessment. The
    defence did not oppose this request. Dr. Julian Gojer conducted the second
    assessment. He concluded:

His thinking at the time of the offences were dictated by
    irritational thoughts secondary to delusional ideation and in the setting of an
    active Schizophrenic illness. It is unlikely that at the time of the alleged
    offenses, Mr. Ellis would have been able to weigh the pros and cons of his
    actions. It is unlikely that he would have been able to exercise rational
    choice. He would not have known that his actions were morally wrong. He
    justified his actions based on delusional ideation. A s. 16(1) defence is
    available to him.

[4]

On March 11, 2009, the trial judge found that the appellant was NCR
    pursuant to s. 16 of the
Criminal Code
. Relying heavily on the
    testimony of Dr. Gojer, the trial judge concluded:

[Dr. Gojer] convinced me beyond a shadow of a doubt that this
    defendant, Mr. Ellis, suffers from probably schizophrenia and that whether that
    is the final diagnosis or not, it is clearly a disease of the mind that
    rendered him incapable of knowing that his actions were morally wrong. Having
    listened carefully to Dr. Gojer, I have come to the conclusion that Mr. Ellis
    is not criminally responsible for his actions.

[5]

Following this verdict, the Ontario Review Board, in a disposition dated
    May 21, 2009, ordered that Mr. Ellis be detained in the medium secure unit at
    Regional Mental Health Care St. Thomas.

[6]

By disposition dated September 28, 2010, the ORB ordered that Mr. Ellis
    be detained in the maximum secure facility at the Oak Ridge Division of the
    Mental Health Centre Penetanguishene. The ORB made a similar order in its most
    recent disposition dated December 21, 2011.

[7]

The appellant appeals the NCR verdict on two grounds.

[8]

First, the appellant asserts that he was denied the effective assistance
    of counsel at trial in two respects: first, trial counsel failed to follow the
    appellants instruction to oppose the second assessment; and second, trial
    counsels approach to, and actual conduct of, the NCR hearing resulted in an
    unfair process and an unreliable verdict.

[9]

To succeed on a claim of ineffective assistance of counsel, an appellant
    must establish that trial counsels acts or omissions constituted incompetence
    (the performance component) and that a miscarriage of justice resulted (the
    prejudice component): see
R. v. B. (G.D.)
, [2000] 1 S.C.R. 520 at
    para. 26.

[10]

In
    our view, the appellant cannot establish either component of the test. We have
    carefully reviewed the record and are of the opinion that trial counsels
    approach to the NCR hearing and his performance in it were entirely
    professional. Regarding the appellants specific complaint that his counsel did
    not comply with his explicit instruction to oppose a second assessment, the
    record does not support his assertion that this was his instruction, Dr. Komer
    supported a second assessment, and, indeed, the second assessment could have
    supported Dr. Komers opinion. In short, a second assessment was probably inevitable
    and desirable and it was a proper exercise of professional judgment for trial
    counsel not to oppose it.

[11]

Nor
    do we see the possibility of a different result flowing from a different
    approach to the case by trial counsel. There was a great deal of evidence about
    the appellants decline in interpersonal functioning and bizarre behaviour and
    actions to support a mental illness diagnosis and an NCR finding. Trial
    counsels conduct of the proceedings caused no prejudice to the appellant.

[12]

This
    case presented a difficult problem for defence counsel. The appellant, by his
    own admission, had committed two very serious assaults on his parents. The
    attacks and the surrounding circumstances suggested that the appellant may
    suffer from some sort of mental disorder. The appellant, however, had adamantly
    denied having any mental problems and indicated he acted as he did because he
    was drunk.

[13]

Counsel
    appreciated that the appellant faced either a long term in the penitentiary or
    an NCR finding and detention subject to subsequent order of the ORB. He knew
    that the expert opinion as to the appellants mental state was divided.

[14]

According
    to counsel, and we have no reason to reject this evidence, he canvassed the
    possible outcomes with the appellant. The appellant was adamant that he would
    not agree to an NCR finding or any statement to the effect that he was mentally
    ill. He also accepted, however, that counsel could proceed on the basis that he
    would not object to a further mental assessment and ultimately would not resist
    an NCR finding.

[15]

Counsel
    followed that strategy. We see nothing unethical or tactically unreasonable in
    that choice. Nor apparently did the appellant until sometime after his first
    ORB hearing. His trial counsel continued to act for him through the hearing.

[16]

The
    various examples put forward by counsel for the appellant in support of the
    contention that trial counsel provided incompetent representation at the NCR
    hearing lose their force when viewed through the lens of the trial strategy
    adopted by counsel.

[17]

Second,
    the appellant contends that the NCR verdict was unreasonable because no
    reasonable trier of fact could have concluded that the appellant lacked the
    capacity to exercise rational choice and to know that his actions were morally
    wrong.

[18]

We
    do not accept this submission. Before the attack on his parents, there had been
    a gradual decline in the appellants occupational, social and interpersonal
    functioning. Also before the attack, the appellant engaged in bizarre actions
    and experienced weird thoughts, such as speaking of zombies and cows and
    installing multiple bolts on his door and bars on his windows. The
    circumstances of the attack are also particularly troubling  the appellant
    walked four kilometres to his parents home and brutally attacked them with a
    club and sword while calling them Satanists. After the attack, the appellant
    provided inconsistent and unsupported explanations for his conduct, including
    an allegation about parental sexual abuse of his sister ten years prior, a
    fight with his mother, and heavy alcohol consumption. All of this conduct
    militated in favour of the NCR finding made by the trial judge. Coupled with
    the psychiatric report and testimony of Dr. Gojer, which the trial judge found
    credible, the NCR finding is far removed from being unreasonable.

[19]

Parenthetically,
    we observe that much of the extensive fresh evidence prepared by both parties,
    and especially the record of the three ORB dispositions made since the
    appellant was declared NCR (the appellant is now in a secure facility and there
    have been many problems with his behaviour) support, in hindsight, the NCR
    finding.

[20]

The
    appeal is dismissed.

Released: December 21, 2012 (D.D.)

Doherty J.A.

J.C. MacPherson J.A.

R.A. Blair J.A.


WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. G.E.P., 2012 ONCA
    856

DATE: 20121203

DOCKET: C53564

Goudge, Rouleau JJ.A., and Ray J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

G.E.P.

Appellant

J. Scott Cowan and Victoria Rivers, for the appellant

Riun Shandler, for the respondent

Heard: November 30, 2012

On appeal from the conviction entered on September 24,
    2010 by Justice Hugh OConnell of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view any questions about the evidence of the complainant being
    speculation, or being due to talking to others, or arising from a flawed memory,
    were well within the jurys ability to decide using their common sense and life
    experience. No specific caution was necessary on top of the ample general
    instruction given to the jury about how they should evaluate the credibility of
    all witnesses. Credibility findings are particularly for the jury in our
    justice system not for this court.

[2]

Nor can this verdict be said to be unreasonable. In our view a properly
    instructed jury acting reasonably could certainly come to the conclusion this
    jury came to. There is therefore no basis for this court to interfere with it.

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gonzalez, 2012
    ONCA 861

DATE: 20121206

DOCKET: C53320

Rosenberg, MacPherson and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Adrian Gonzalez

Respondent

Deborah Krick, for the appellant

Paolo Giancaterino and Marco Sciarra, for the respondent

Heard: December 3, 2012

On appeal from the acquittal entered on January 24, 2011
    by Justice Charles T. Hackland of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The Crown appeals the acquittal of the respondent on five gun-related
    charges. The acquittals flowed from a
Charter
ruling made by the trial
    judge during the trial. The trial judge determined that various members of the
    Ottawa police force arbitrarily detained the respondent during a roadside
    vehicle stop contrary to s. 9 of the
Charter
and failed to properly
    advise the respondent of his right to counsel contrary to s. 10(b) of the
Charter
.
    The Crown also contends that the trial judge erred by excluding the evidence
    relating to the gun seized from the vehicle being driven by the respondent and
    the videotaped statement made by the respondent at the police station pursuant
    to s. 24(2) of the
Charter
.

[2]

On the
Charter
s. 9 issue, the appellant acknowledges that a trial
    judges determination as to the purpose of a traffic stop is a finding of fact
    and that this precludes the Crown from appealing a finding of arbitrary
    detention in many instances: see
R. v. Coates
(2003), 176 C.C.C. (3d)
    215 (Ont. C.A.) at para. 19. However, the appellant submits that in this case
    the trial judge committed three errors of law in his s. 9 analysis: (1) he
    improperly considered the arrival of other Direct Action Response Team officers
    as a basis to reject the evidence of the police officer who stopped the
    respondents vehicle; (2) he erred in holding that a valid
Highway Traffic
    Act
(
HTA
) stop required some articulable cause relating to the
    drivers own conduct; and (3) he failed to consider the totality of the
    evidence before making a factual finding that traffic safety was not a purpose
    for the stop.

[3]

We do not accept this submission. The factors above relating to the
    number and role of the police during the roadside stop and the totality of the
    evidence are, in our view, factual issues and, therefore, not subject to
    judicial review. In any event, the trial judge did consider the totality of the
    evidence but, having done so, he disbelieved the police officers testimony.

[4]

As to the second point, the trial judge did not suggest that the police
    needed an articulable cause in order to make an
HTA
stop. Rather, the
    trial judge reviewed the evidence and concluded that the stop was not made for
    an
HTA
purpose but rather was a pretext because of suspicions of
    gang-related criminal activity.

[5]

On the
Charter
s. 10(b) issue, in our view it is unnecessary to
    address this issue because the trial judge made a separate ruling that the
    respondents video statement was inadmissible on voluntariness grounds apart
    from the section 10(b) issues under discussion in this motion. The Crown has
    not appealed the voluntariness ruling. Accordingly, since the respondents
    statement must remain inadmissible, the
Charter
s. 10(b) issue becomes
    redundant. We decline, therefore, to comment on the trial judges analysis of
    this issue, including factors relating to the length of time between the
    initial s. 10(b) warning and the taking of the video statement, the increase in
    the number of charges in the same time frame, and the existence of a minimum
    sentence for one of the additional charges.

[6]

On the s. 24(2) issue, against the backdrop of an arbitrary detention
    and an inadmissible statement, we can see no basis for interfering with the
    trial judges application of the factors set out in
R. v. Grant
(2009), 245 C.C.C. 1 (S.C.C.).

[7]

The appeal is dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kampe, 2012
    ONCA 858

DATE: 20121005

DOCKET: M41715 (C54979)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Kampe

Applicant

Ernest J. Guiste, for the applicant

Lisa Csele, for the respondent

Heard: September 27, 2012

ENDORSEMENT

[1]

The applicant applies for an order to compel the Federal Minister of
    Justice to provide him with funding to appeal his conviction. The applicant was
    convicted of possession of cocaine for the purposes of trafficking. He was
    sentenced to 15 months imprisonment.

[2]

The Crown does not dispute that the accused lacks the financial means to
    retain counsel and the capacity to argue the appeal himself. Under s. 684 of
    the
Criminal Code
, the onus is on the applicant to satisfy the court
    that it appears desirable in the interests of justice that the accused should
    have legal assistance.

[3]

In order for it to be in the interests of justice to provide funding,
    the appeal must be arguable. Other factors to consider are the complexity and
    nature of the appeal, the legal principles it engages, and how those principles
    apply to the facts of the case.

[4]

Applicants counsel submits that the applicant should have legal
    assistance because this appeal engages the legal principles to be applied in
    racial profiling cases. While the legal principles engaged are one
    consideration, the merits of the appeal must be considered first.

[5]

A review of the evidence, the trial judges reasoning, and the arguments
    the applicant proposes to advance  on appeal is necessary. The transcript of
    proceedings was not available on the hearing of the application, but the trial
    judge summarized the evidence in detail.

[6]

The trial judge summarized the Crowns case against the applicant as
    follows:

Three police officers were involved in the events leading to
    the charges against Mr. Kampe - P.C. Fagu, P.C. Lee, and P.C. Ahmed. They
    testified at the trial as follows. On November 16, 2009 in the evening, they
    were in uniform on general patrol in an unmarked police van in the north end of
    Rexdale. The three officers were attached to the Community Response Unit of 23
    Division, a unit that deals with community complaints. Their duties as members
    of the Community Response Unit included patrolling "high crime" areas
    within 23 Division. These areas had a high incidence of drug trafficking, drug
    use, prostitution, noise, and drinking.

At about 10:35 p.m., the officers drove into the parking lot of
    121 Kendleton Drive, an area known to the officers as a "high crime"
    area. They noticed a grey Chevy Malibu with its interior light on backed in to
    a parking spot in front of 121 Kendleton Drive. This drew the officers'
    attention. Officers Fagu and Ahmed noted a male black driver and female
    passenger in the car. Officer Lee noted a male black driver and female white
    passenger in the car. The officers drove their van past the front of the parked
    car, stopped, got out, and approached the parked car from the rear. Officer
    Fagu approached the driver's side with P.C. Ahmed behind him. P.C. Lee
    approached the passenger's side.

P.C. Fagu testified that while standing just behind the pillar
    between the driver's door and the rear passenger door, he saw the male (who was
    later identified as Mr. Kampe) looking down in his lap at a piece of what appeared
    to be crack cocaine. He was able to observe this for a few seconds before Mr.
    Kampe noticed him. Once Mr. Kampe saw him, he closed his right hand and put his
    left hand on top. P.C. Fagu ordered him to open his hand. Mr. Kampe then moved
    his hand to the right side of his body and put it in his right pocket,
    according to P.C. Fagu.

P.C. Lee testified that he heard P.C. Fagu order Mr. Kampe to
    open his hand and saw Mr. Kampe put his clenched right hand in his jacket
    pocket. P.C. Lee reached across the passenger and grabbed Mr. Kampe's wrist out
    of his jacket pocket. Mr. Kampe's hand was empty.

Officers Fagu and Ahmed testified that they each took control
    of one of Mr. Kampe's arms and removed him from the car. P.C. Lee came around
    to the driver's side of the car, and while the other officers had Mr. Kampe's
    arms, he reached in to Mr. Kampe's right jacket pocket and removed a piece of
    crack cocaine that was wrapped and tied in plastic wrap.

The officers testified that Mr. Kampe was informed that he was
    under arrest for possession of crack cocaine. When they tried to handcuff him,
    Mr. Kampe began to struggle. The officers forced Mr. Kampe to the ground,
    handcuffed him, patted him down and took him back to 23 Division. During the
    pat down, Officer Ahmed testified that he found a cell phone and $404.40 on Mr.
    Kampe.

Officer Fagu testified that he searched the car and found a
    silver digital scale in working order between the driver's seat and the centre
    console, and two pieces of plastic wrap on the floor on the drivers' side. The
    car had been rented from Avis.

None of the officers knew Mr. Kampe or knew of him, nor had any
    of them dealt with Mr. Kampe previously.

[7]

The trial judge summarized the applicants evidence as follows:

Mr. Kampe testified, and related an entirely different version
    of events than the officers. He testified that he had just gotten into the car
    with a woman he had met earlier that day when an unmarked police car sped in
    front of his car and cut him off. Three officers approached the car from the
    front and came to the driver's door. They dragged him out of the car, assaulted
    him, arrested him and read him his rights. The officers searched him. P.C. Lee
    did not find crack cocaine in his jacket pocket. None of the officers said
    anything about finding crack cocaine or a scale at the scene, nor did they show
    him any crack cocaine or scale at the scene. He did not have any crack cocaine.
    He had never seen the scale before being paraded before the Staff Sergeant at
    23 Division that evening. The police have fabricated the story that the crack
    cocaine was found in his jacket pocket and the scale was found in the car. The
    money and cell phone that were seized from him belonged to him.

[8]

At trial, defence counsel made an issue of the fact that the Crown neither
    called the female passenger as a witness nor disclosed her identity to the
    defence. The police had not made a note of the womans identity. The only
    officer who interacted with the woman testified:

that when he approached the passenger's side of the car, the
    female saw him immediately and opened the door. He asked her who she was and
    why she was there. She identified herself with an Ontario health card. She
    appeared intoxicated. [He] called for a scout car and a female police officer.
    Other officers arrived in a scout car and the female went with those officers. [He]
    believes the other officers took her to a bus stop. [He] testified that he did
    not make a note of her name in his notebook. He did not believe he had grounds
    to arrest her. He did not search her. He agreed with [defence counsel] that she
    would have heard the events that unfolded that evening.

[9]

At the time of trial, the defence did not know the womans identity. The
    trial judge stated the following:

[The applicant] testified that he had just met the woman
    earlier that day. He was very vague about how he met her. He testified that he
    met her on the street near Danforth and Brimley. She had a dog with her. They
    made eye contact and exchanged phone numbers. She called him later that day. He
    called her back and later that evening picked her up at Danforth and Brimley.
    She came out of a building at Danforth and Brimley where [the applicant]
    assumed she lived. They drove back to [the applicant]'s apartment, where they
    stayed for 15 or 20 minutes. [the applicant] was going to take the woman home
    when police arrived at the car. [the applicant] testified that he does not
    remember the woman's name. He has never seen her since that evening.

[10]

Defence
    counsel asked the trial judge to draw an adverse inference from the fact that
    the Crown did not call the woman as a witness. He asks the trial judge to infer
    that the woman, had she been called, would have confirmed the applicants
    evidence about what happened that evening.

[11]

The
    trial judge remarked that the polices failure to make a note of the woman's
    name that evening or investigate her further is unusual, but went on to
    observe that [o]n the other hand, on the evening in question, Mr. Kampe knew
    the woman's name, her telephone number and her address. However, it made sense
    to her that the polices attention focused on Mr. Kampe once crack cocaine was
    found in his hand. Consequently, she concluded that the absence of [the
    womans] evidence does not logically give rise to a reasonable doubt in this
    case.

[12]

The
    trial judge rejected the applicants testimony and accepted the testimony of
    the police officers. She found that the applicants testimony did not leave her
    with a reasonable doubt that he was in possession of the crack cocaine and the
    digital scale. Taken together with the fact he had two cell phones and over
    $400 in cash, and there being no indication the crack was being consumed, she
    found he possessed the crack for the purpose of trafficking.

A.

Analysis

[13]

I
    begin by identifying the arguments that the applicant seeks legal assistance to
    advance on appeal. Applicants counsel proposes to argue that the trial judge
    failed to properly deal with the applicants defence of racial profiling. He
    submits that when racial profiling and the planting of evidence are raised as a
    defence, and the accused takes the stand, it is not enough to simply accept the
    evidence of the police and reject the evidence of the accused. Instead, he says
    the trial judge should heed this courts observation in
R. v. Brown
(2003), 64 O.R. (3d) 161, at para. 44:

A racial profiling claim could rarely be proven by direct
    evidence. This would involve an admission by a police officer that he or she
    was influenced by racial stereotypes in the exercise of his or her discretion
    to stop a motorist. Accordingly, if racial profiling is to be proven it must be
    done by inference drawn from circumstantial evidence.

[14]

He
    argues that, had the trial judge properly considered all the circumstantial
    evidence, she would have inferred that the applicant had been racially profiled
    and would have accepted his testimony.

[15]

Counsel
    for the applicant also proposes to renew on appeal his argument that the trial
    judge should have drawn an adverse inference from the Crowns failure to call
    the passenger as a witness. He submits that an important aspect of the
    circumstantial evidence is that, as the police witnesses acknowledged under
    cross examination, the passenger had material evidence to give. The trial judge
    should have inferred that she would have corroborated the applicants
    testimony.

[16]

There
    is no doubt that the type of racial profiling claim considered in
Brown
and the type of allegations of deliberate racist misconduct made in this case
    must be proven by inferences from circumstantial evidence. However, I see no merit
    in the argument that the trial judge failed to consider all the circumstantial
    evidence before rejecting the applicants evidence.

[17]

The
    trial judge was alive to the applicants allegations of racism on the part of
    the police. She noted trial counsels final submission that these charges were
    yet another example of racial profiling and tunnel vision on behalf of the
    Toronto Police Services. She expressly instructed herself that she [should] not
    give the police officers' testimony any more weight than the testimony of Mr.
    Kampe simply because they are police officers. She carefully considered the
    plausibility of each witnesss evidence, the internal inconsistencies of each
    witnesss evidence, and how each witnesss evidence fit with all the evidence called
    at trial.

[18]

One
    specific factual difference in the two versions of events was whether the
    police approached the applicants car from the front or from the rear. The
    trial judge preferred the evidence of the officers that they approached from
    the rear because it was more in keeping with standard police practice. She
    accepted the officers explanation that [i]f the occupants of a car are
    engaged in illegal activity, approaching from the rear is safer for the police
    and allows the police to gain the element of surprise. On the whole, she found
    the testimony of the officers to be credible and reliable.

[19]

On
    the other hand, she noted that Mr. Kampe was unable to recall the name of the
    woman who was in the passenger seat of the car with him, where she lived, when
    he rented the car, or the purpose for which he rented the car. He was vague
    about how he met the woman who was in the car with him. She concluded that he
    was not a credible witness.

[20]

The
    trial judge considered the applicants criminal record. It included convictions
    for possession of a credit card obtained by crime, possession of property
    obtained by crime, obstructing a peace officer, possession for the purpose of
    trafficking, failing to comply with a recognizance, criminal harassment, and
    possession of a prohibited or restricted weapon. Although the applicant admitted
    that he had been convicted of these offences, he testified that he did not
    commit most of them.

[21]

On
    my reading of the trial judges reasons, it is clear she did not fail to
    consider the circumstantial evidence before her and, in particular, the fact that
    the police did not investigate the female passenger. She remarked that this was
    unusual but found she was unable to infer from the failure of the woman to
    testify that she would have supported either [the applicants] version of the
    events or the police officers version.

[22]

There
    is nothing in
Brown
that supports the contention that the trial judge
    erred in principle in failing to draw an adverse inference from the fact that
    the Crown did not call the passenger as a witness.

[23]

In
    my view, the trial judges analysis and her reasons for rejecting the applicants
    testimony are unimpeachable. There is no merit in an appeal that seeks to
    revisit the trial judges credibility findings, which led her to conclude that
    the applicant was in possession of cocaine. That the credibility findings were
    made in a case involving allegations of racial profiling does not infuse the
    appeal with merit. It is not in the interests of justice that the applicant should
    have legal assistance to appeal the conclusion of the trial judge that he was
    in possession of cocaine for the purpose of trafficking.

[24]

Despite
    this conclusion, I have pondered at great length the aspect of this case that
    the trial judge described as unusual. On the police officers testimony, what
    first attracted the polices attention to the vehicle was the fact that it was
    parked in a high crime area with its interior light on and was occupied by a black
    male driver and a white female passenger. Upon approaching the vehicle from the
    rear, they noted that the occupants were looking at a piece of crack in the
    applicants hand. The applicant, who is black, was searched and arrested. The
    police did not search or otherwise investigate the white occupant of the
    vehicle. One of the arresting officers believed that uniformed police, who
    arrived later, took the female passenger to a bus stop.

[25]

The
    rejection of the applicants testimony in no way precludes the applicant from
    relying on the Crowns evidence to argue that the police engaged in racial
    discrimination that breached the
Charter of Rights and Freedoms
. Such
    an argument could be based on racial profiling, similar to the conduct found
    in
Brown
, or on a wider formulation of racial discrimination based on the
    differential treatment of the applicant during the course of the police
    investigation. In either case, an essential component of such an argument is that
    the applicant apply under s. 24(2) of the
Charter
to exclude the evidence
    implicating the accused.

[26]

When
    making an application under s. 24(2), an accused does not dispute the factual
    circumstances that make out the elements of the offence, but argues that the
    evidence tendered to prove the offence should be excluded because it was
    obtained in breach of the
Charter
.

[27]

Counsel
    for the applicant claimed in oral argument that an application was made at
    trial to exclude evidence under s. 24(2). Counsel for the Crown did not agree. The
    trial judge, at the very outset of her analysis, stated unequivocally [t]he
    constitutionality of the conduct of the police was not challenged. No
    applications were brought by Mr. Kampe alleging a breach of his rights under
    the
Charter
, or related to the nondisclosure of the name of the
    passenger. The material filed on the application does not include a
Charter
application and the applicants factum on the application makes no reference to
    one.

[28]

On
    the material before me, I find that the applicant did not bring a
Charter
application to exclude evidence. At trial, the applicant did make allegations
    of racist misconduct by the police, but those allegations were wrapped up as
    part of his defence of factual innocence. The position he took did not require
    an order excluding the cocaine. His defence explained its presence in his pocket
     the police planted it. The significance the applicant placed on the passenger
    was that, if called, she would corroborate the applicants testimony that he
    was factually innocent. He did not advance an alternative argument that the differential
    treatment of the passenger supported an inference of a
Charter
breach,
    requiring a
Charter
remedy.

[29]

The
    applicant may have had a good tactical reason not to advance such an
    alternative argument at trial. Advancing such an argument could have undermined
    the force of the applicants testimony that he was not in possession of the
    cocaine.

[30]

I
    have not been satisfied that it is in the interests of justice to order legal
    assistance to advance an appeal on the basis that the trial judge failed to
    exclude the evidence implicating the accused.

[31]

The
    application is dismissed. The applicant may renew the application before me if
    he is able to file materials demonstrating that a
Charter
application
    to exclude evidence was made at trial, as claimed by the applicants counsel.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacKenzie, 2012
    ONCA 910

DATE: 20121224

DOCKET: C48416

Goudge, Rouleau JJ.A. and Ray J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Richard MacKenzie

Appellant

Timothy Breen, for the appellant

Alexander Alvaro, for the respondent

Heard: November 29, 2012

On appeal from the conviction entered on October 30, 2007
    by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a
    jury.

Goudge J.A.:

[1]

On October 30, 2007, after a trial by judge and jury, the appellant was
    found guilty of first degree murder.

[2]

He appeals his conviction, citing a number of errors in the charge to
    the jury and arguing that the verdict was unreasonable.

[3]

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

[4]

In broad outline, the Crowns evidence was as follows. The deceased was
    an 83-year-old woman who lived alone in her home in central Toronto. She had
    been born without a left forearm. On March 18, 2004 someone broke into her
    home. The intruder covered her mouth with adhesive tape. While taped, she
    vomited. Because the tape prevented her from expelling the vomit, she choked
    and died of asphyxiation. There was no evidence that she had been bound. Her
    body was found in the basement of her home. After she died, a fire was set
    around her body.

[5]

The preceding fall, the appellant was one of the work crew who excavated
    a part of the deceaseds basement.  While working there, he found a bag of five
    Nazi daggers that had belonged to the deceaseds late husband. He stole one and
    sold it to an antique dealer. The appellant told the dealer he may have
    additional items for sale. On the morning of the killing, the appellant placed
    another call to that dealer. The same day, cellular records placed the
    appellant in the vicinity of the deceaseds home.

[6]

The Crown called evidence from Joseph Cachia and Joanne MacKenzie (no
    relation to the appellant), who said that the appellant told them he had
    entered the deceaseds home in an attempt to steal more property. She had
    surprised him in the basement, but dropped to the ground during the
    confrontation. He thought she was dead. He panicked and set the fire to cover
    his tracks. MacKenzies evidence was that the appellant said he never intended
    to kill the woman and had even attempted suicide afterwards.

[7]

The pathology evidence called by the Crown was that there were no
    significant external indications of blunt force injury or penetrating injury.
    Death occurred before the fire was set. The cause of death was asphyxiation due
    to the aspiration of gastric contents. Liquid stomach contents were observed in
    the nostrils and the mouth of the deceased. It was reasonably plausible that
    the vomiting related to the emotional distress of being gagged. If the victim
    was conscious prior to choking, air hunger would have produced extreme
    distress likely visible to an observer. If the victim was unconscious prior to
    choking, external signs of distress would be less obvious, although either
    conscious or unconscious, choking could have produced a seizure. The bruising
    of the victims tongue correlated quite well with a seizure but could also have
    occurred while the victim was struggling against the gag. The process from
    airway obstruction to death would have been rapid.

[8]

The defence called no evidence.

[9]

The Crowns theory was that the appellant was the intruder. He entered
    the deceaseds home on March 18, 2004 and placed the adhesive tape over her
    mouth. The Crown expressly conceded that the act of applying the gag could not
    support an inference of an intention to kill. The Crown said the appellant was
    present when the decease vomited and died and in preventing her from removing
    the gag or in failing to do so himself, the appellant possessed the intent
    required for murder. Since the murder occurred in the course of the unlawful
    confinement of the deceased, the appellant was guilty of first degree murder.

[10]

At
    trial, the appellant conceded that the intruder caused the deceaseds death by
    placing the gag over her mouth. However, his defence was that the prosecution
    had not established beyond a reasonable doubt that he was the intruder.

[11]

Because
    much of the appellants case in this court rests on criticisms of certain
    aspects of the instructions that the trial judge gave to the jury, it is
    helpful to outline the parts of the charge most relevant to his arguments.

[12]

The
    trial judge began with the usual general instructions to the jury on their role
    as the final judges of the evidence, their assessment of the credibility of
    witnesses, the presumption of innocence, the burden of proof, the meaning of
    reasonable doubt, and the proper approach to fact-finding. He then made clear
    the two essential matters that the Crown had to prove beyond a reasonable doubt
    to establish murder: first, that that appellant was the person who unlawfully
    killed the deceased by placing the gag over her mouth, thus causing her death;
    and second, that sometime after doing so, he possessed the intention to cause
    her death or bodily harm that he knew was likely to cause death. Identity and
    intention were thus the two essential matters to be proven beyond a reasonable
    doubt in this case.

[13]

After
    reviewing the evidence he considered most relevant to identity, the trial judge
    turned to intention. He first described what he called hard or undisputed
    facts relevant to that issue. He referred to the intruder entering the house,
    then gagging the deceased who, most likely while conscious, became agitated,
    vomited and eventually died. Finally he referred to the intruder building a
    fire around her body.

[14]

The
    trial judge went on to outline three scenarios of may have happened that day.
    These were for the jury to consider in addressing the issue of intention:

(a)     The
    intruder was present when the deceased, who was conscious, became emotionally
    agitated, started to vomit and then died. On this scenario, the jury could
    infer beyond a reasonable doubt that the intruder intended to kill the
    deceased.

(b)     The
    intruder was present, but the deceased was unconscious when she started to
    vomit. On this scenario the jury could still find the intention for murder
    beyond a reasonable doubt, but only after carefully considering whether the
    intruder would have realized that she was in physical distress.

(c)     The
    intruder was not present when the deceased began to vomit and died. On this
    scenario the intruder could not have formed the intention required for murder.

[15]

The
    trial judge then instructed the jury on the meaning of unlawful confinement
    that would elevate the killing to first degree murder. After reviewing the
    positions of the Crown and the defence, he closed by summarizing these various
    scenarios once again.

ANALYSIS

First Issue: The Trial Judges Review of the Evidence

[16]

The
    appellant argues that the trial judges review of the evidence was inadequate
    in three respects.

[17]

He
    says that the hard and undisputed facts referred to by the trial judge
    overstated the certainty of the evidence. In particular, he says that the
    pathology evidence was that agitation was not necessarily the cause but only
    one of a number of possible causes of the vomiting, that when she vomited it
    was not most likely the deceased was conscious, but could have been either
    conscious or unconscious, and that death would follow choking rapidly not just
    eventually. The appellant also says that in describing the various scenarios
    the trial judges references to the deceased having a seizure and to the
    intruder most likely being present were tainted in the same way.

[18]

In
    my view, while the evidence was rather less certain on these points than the
    charge reflects, the trial judge made clear in his general instructions that
    the jury was bound to act on their own view of the evidence, not his. There was
    no objection to the trial judges reference to hard and undisputed facts.
    Moreover, reading the charge as a whole, I think it apparent that when the
    trial judge moved to the various scenarios he was not describing facts he
    viewed as hard and undisputed. In the end, it was clear to the jury that in
    addressing intention they were obliged to determine whether or not the victim
    had experienced any form of distress following the placement of the gag,
    whether the appellant was present when the distress occurred, and whether he
    was able to observe the distress. The jury would have understood that these
    were the key factual questions it had to address.

[19]

The
    appellant also argues that the trial judge failed to review in any detail the
    evidence that could support the appellant not being present when the deceased
    vomited. In my view, this was not necessary. This aspect of the charge
    attracted no objection. The relevant evidence was neither complicated nor
    disputed. Defence counsels primary position was that the appellant was not the
    intruder but counsel also described for the jury why they could find that the
    intruder was not present when the victim vomited. In the circumstances, I would
    not fault the trial judge for leaving to counsel the task of organizing the
    evidence into their respective theories.

[20]

Finally
    the appellant says that the trial judge should have reviewed for the jury the
    appellants statements to Cachia and MacKenzie and invited them to consider the
    relevance of those statements to the appellants intention. In my view, these
    statements were not consistent only with the appellant not intending to kill
    the victim. They were at best equivocal on the issue of intention. In
    particular, they constituted evidence that the deceased died in the appellants
    presence. The appellant suffered no prejudice from the lack of review of these
    statements.

[21]

In
    short, none of the appellants concerns about the trial judges review of the
    evidence provides a basis for appellate intervention.

Second Issue  The Legal Duty to Act

[22]

In
    the course of his charge, the trial judge told the jury that a person who
    placed adhesive tape over an elderly persons mouth, and who then became aware
    that the elderly person was in distress, was under a legal duty to remove it.
    The appellant says that no such duty exists in Canadian criminal law such that
    a breach can serve as the
actus reus
of the offence and that this aspect
    of the charge also obscures the mental element required for murder.

[23]

I
    do not read the charge quite this way. The trial judge did not attempt to set
    up an unlawful failure to remove the tape as the
actus

reus
of this offence. Apart from his relatively brief reference to the legal duty to
    act, throughout his charge, the trial judge clearly instructed the jury that
    the placing of the tape over the mouth of the victim, and then preventing its
    removal thereby causing her asphyxiation and death, was the
actus

reus
for murder. As well, in his brief reference to the legal duty to act, the trial
    judge reiterated that the intention required was that the victim die or suffer
    bodily harm that the perpetrator knew was likely to cause death or was reckless
    whether death ensued. The reference to the legal duty to act did not obscure
    the charge concerning either the
actus reus
or the
mens rea
.

Third Issue  Admissibility of Cachias Statements to the
    Police

[24]

The
    appellant argues that the trial judge erred in admitting the evidence of
    Detective Nealon concerning the statements made to him by Cachia. The appellant
    says that this was prejudicial because it tended to support the credibility of
    Cachias in-court evidence.

[25]

Again
    I do not agree. The detectives evidence was clearly admissible to show that
    Cachia had knowledge from the appellant that was not available in the public domain.
    The detectives evidence was therefore admissible to rebut the defence
    suggestion that Cachia had fabricated his evidence about what the appellant had
    told him. In addition, the trial judge gave the jury clear instructions, both
    mid-trial and in his charge, that the evidence of Cachia having previously made
    statements similar to his testimony in court could not be used to support the
    credibility of that testimony. This addressed the very risk that the appellant
    raises.

Fourth Issue  Unreasonable Verdict

[26]

The
    appellant argues that the verdict of murder depended on a finding that the
    appellant was present when the deceased vomited and asphyxiated. He says that
    there was no direct evidence of this nor could it be reasonably inferred. Hence
    his conviction is unreasonable.

[27]

I
    do not agree. Although there was no evidence of physical restraint of the deceased,
    it was entirely reasonable for the jury to infer that the appellant was
    present. The air hunger that the gagged victim would have experienced on vomiting
    would have driven her to tear the tape off to save herself unless the appellant
    had been there to keep her from doing so.

Fifth Issue  The Trial Judges Use of Various Scenarios

[28]

The
    appellant says that when he turned to the issue of intention, the trial judge
    erred in three different ways by describing for the jury the three different
    scenarios together with the available verdicts for each.

[29]

First,
    the appellant argues that the trial judge presented the case to the jury as a
    choice they must make between these scenarios and that this invaded their fact
    finding function.

[30]

I
    do not agree that the trial judges jury approach had this effect. He made
    clear to the jury that regardless of his view of the facts, it was their duty
    to reach their own conclusions about what happened. After he went on to
    describe the three scenarios, counsel raised no objection to this approach.
    Once the jury found the appellant to be the intruder, their task was to
    determine on all the evidence what occurred that day in the deceaseds house
    and realistically these three scenarios were the alternatives. Moreover two of
    them  that when she vomited the appellant was present but the deceased was
    unconscious, or that the appellant was not present  were favourable to the
    appellant in that they offered a basis upon which the jury could have a
    reasonable doubt on the question on the intention required for murder.

[31]

Then
    the appellant argues that in framing the three scenarios, the trial judge
    effectively made the appellants presence when the deceased vomited an
    essential element of the offence of murder. However he had never told the jury
    that presence had to be established beyond a reasonable doubt.

[32]

I
    do not read the charge that way. The trial judge presented the three scenarios
    to the jury as three ways that the evidence might be viewed in their
    consideration of intention. If the jury found the evidence to support a
    particular scenario, their task was to decide on that scenario whether,
    considering all the evidence, the requisite intention had been established
    beyond a reasonable doubt. While two of the scenarios required a finding of the
    appellants presence, presence alone did not establish intention. The trial
    judge instructed the jury to consider all of the evidence, including for example,
    signs of the victims distress that would have been observable to the
    appellant.

[33]

Since
    presence did not establish intention, it did not rise to an essential element
    of the offence. The case is different from
R. v. Quidley
, [2008] 232
    C.C.C. (3d) 255 (Ont. C.A.), where the voice identification evidence and the
    translation of the recorded conversations were sufficiently central to the
    prosecutions case that they became for all practical purposes almost the same
    as the essential elements of the offence. The charge erred by suggesting that
    an inadequately low burden of proof was sufficient for these two specific
    matters. In this case, there was no similar misdirection. The jury was required
    to consider other factors, not just the appellants presence in concluding
    whether the intention for murder was established beyond a reasonable doubt. On
    these facts it would not have been proper to instruct the jury that presence
    alone had to be established beyond a reasonable doubt in order to convict the
    appellant of murder.

[34]

Finally,
    the appellant argues that by presenting the scenarios to the jury the trial
    judge invited them to examine the evidence in a two-stage process. That is,
    first the jury was instructed to determine if the appellant was present when
    the victim began to vomit and hence which scenario applied. Then the jury was
    told that having determined the question of presence, they should go on to
    decide if the intention required for murder was proven beyond a reasonable
    doubt. The appellants submission is that this way of proceeding removed any
    potential concerns about the evidence of presence from the jurys application
    of reasonable doubt to the issue of intention.

[35]

In
    my view the trial judges approach did not carry that risk. He told the jury
    that if they could not find that the appellant was present when the deceased
    began to vomit, they could not find the intention required for murder but only
    for manslaughter. While two of the scenarios required presence, choosing
    between the two required the jury also to determine whether the deceased was
    conscious or not. Thus presence did not dictate which scenario applied.

[36]

More
    importantly, the jury understood that within each scenario, they were to
    consider the totality of the evidence, including the evidence about the
    appellants presence in concluding whether they were left with a reasonable
    doubt about intention. They would not have excluded presence from this task.
    Thus I do not think that the trial judge invited the jury to engage in the
    two-stage process of considering the evidence that the appellant suggests.

[37]

In
    summary, I find no error in the trial judges use of the various scenarios in
    his charge. Since this argument, like the others raised by the appellant must
    be rejected, I would dismiss the appeal from conviction.

Released: December 24, 2012 (S.T.G.)

S.T. Goudge J.A.

I agree Paul Rouleau J.A.

I agree T. Ray J. (
ad hoc
)


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COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Morrison, 2012
    ONCA 897

DATE: 20121219

DOCKET: C53912

Rosenberg, Sharpe and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessiah Morrison a.k.a. Jessiah MacDonald

Appellant

Peter Copeland, for the appellant

Philip A. Perlmutter, for the respondent

Heard: December 17, 2012

On appeal from the conviction entered on June 2, 2009 and
    the sentence imposed on September 14, 2009 by Justice Laurence A. Pattillo of
    the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises the following issues regarding conviction all
    dealing with the charge to the jury.

1.

We agree with Crown counsel that the error respecting consent as a
    defence to wounding was harmless, since consent was not available on the facts
    of this case. This was an attack by three men on the unarmed victim and there
    was no evidence of consent from the victim or any other source.

2.

The instructions on s. 21(1) if anything may have been overly
    favourable. The jury would understand from those instructions that they could
    only convict of wounding if the appellant knew the principal offender intended
    to commit the offence of wounding. In any event, given the jurys verdict on
    the other counts it is apparent that the jury convicted the appellant not on
    the basis of s. 21(1) but on s. 21(2). The instructions on s. 21(2) were
    unobjectionable.

3.

Finally, given the circumstances, the offence of assault was properly
    left as it was by the trial judge. This is not a case like
R. v. Haughton
,
    where the jury had no route to common assault.

[2]

As to sentence, given the Supreme Court of Canada decision in
R. v.
    Knott
, there was no error in imposing probation. The sentence of
    imprisonment was fit. It properly recognized the appellants lesser role, but
    took into account that of the three, this appellants record for violence was
    far worse than the co-accused.

[3]

Accordingly, the appeal from conviction and sentence is dismissed.


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WARNING

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

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

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

(a)     any of
    the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Mullings, 2012 ONCA 911

DATE:  20121221

DOCKET: C54716

OConnor A.C.J.O., Doherty and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ricardo Mullings

Appellant

Alison Craig, for the appellant

Kim Crosbie, for the respondent

Heard:  December 21, 2012

On appeal from the sentence imposed by Justice Knazan of
    the Ontario Court of Justice, dated December 9, 2010.

APPEAL BOOK ENDORSEMENT

[1]

A review of the recent jurisprudence of this court persuades us that at
    least the upper end of the range for this type of offence (a single act of sexual
    intercourse with a girl of 13 years of age by a person in a position of trust
    with devastating consequences) is more than 5 years.  While the sentence
    imposed is certainly high, we cannot say it is manifestly unreasonable.  We
    reach this conclusion despite the able argument of Ms. Craig.

[2]

Accordingly the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Munkoh, 2012
    ONCA 865

DATE: 201201207

DOCKET: C53685

Rosenberg, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abraham Munkoh

Appellant

David E. Harris, for the appellant

Thomas C. Lemon, for the respondent

Heard: December 5, 2012

On appeal from the conviction entered on April 21, 2010
    by Justice Michael R. Dambrot of the Superior Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

We have not been persuaded that the trial judge erred either in his
    application of the legal principles or his apprehension of the evidence.
    Fundamentally, this case turned on findings of fact by the trial judge. Those
    findings are entitled to deference and the appellant has not shown that those
    findings are unreasonable.

[2]

In particular, we are satisfied that it was open to the trial judge to
    find that the appellant was not detained during the early part of the search of
    the house in view of
R. v. Suberu
.

[3]

On this record, and the facts found by the trial judge, it was not necessary
    for the police to reiterate the s. 10(b) rights per
R. v. Sinclair
.
    Contrary to the assertions of the appellant it was also open to the trial judge
    to find that he did not invoke his s. 10(b) rights at the station and was not
    questioned by Constable Correa in their initial encounter.

[4]

In those circumstances, the challenge to the admissibility of the
    statements must fail.

[5]

Accordingly, the appeal is dismissed.


WARNING

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

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

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

(a)       any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. P.G., 2012
    ONCA 859

DATE: 20121206

DOCKET: C54084

Sharpe, Lang and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Applicant/Appellant

Catriona Verner and Victor Giourgas, for the appellant

John Pearson, for the respondent

Heard: November 13, 2012

On appeal from the conviction entered on February 2, 2011
    by Justice J.C. Corkery of the Superior Court of Justice, sitting with a jury.

Sharpe J.A.:

[1]

The appellant was convicted of sexual assault and invitation to sexual
    touching following a trial before a Superior Court judge sitting with a jury.
    He was sentenced to 42 months imprisonment. He appeals the convictions.

[2]

The complainant was the appellants biological daughter, three years old
    at the time of the alleged offences and age 11 at the time of trial. The
    Crowns case rested entirely on the complainants unsworn, out-of-court
    statements made to her foster parents and to the police when she was four years
    old. At the time of trial, the complainant had no recollection of the alleged
    abuse or of having complained about it.

[3]

The central issue on this appeal is the admissibility of the
    out-of-court statements.

Facts

[4]

The facts may be stated briefly. The complainant and her brother lived
    with their parents until they were placed in foster care in March or April of
    2003, when the complainant was four and her brother was eight. On September 17,
    2003, several months after she had been placed in foster care, the complainant
    made allegations of sexual abuse to her foster parents, RP and LP.

[5]

RP noted that the complainant was masturbating under her clothes. He
    asked her why she was doing this and she told him it reminded her of her daddy
    who had spanked her puddie  her word for vagina  and it felt good. She
    reported that her father would take down his pants and bang bang banged his
    penis and then pee on her. She stated that it was not toilet pee, that it stunk
    and that she rubbed the pee on her face and her mother told her she looked
    pretty. She said her daddy told her it was a secret. She refused RPs request
    that she repeat the statement to a police officer because daddy will go to
    jail.

[6]

Despite being advised by social workers not to encourage the complainant
    to speak about her allegations, RP had a second conversation with the
    complainant. She reported in response to leading questions that her father had
    touched her privates with his penis, that he had penetrated her from the front
    when she sat on his lap facing away from him, that there had been bleeding, and
    that she experienced pain all the way down her leg. She also told RP that the
    appellant had toilet peed on her while she was taking a bath.

[7]

LP took notes of her conversation with the complainant later that
    evening when the complainant reported, inter alia, that she had played a game
    with her father during which he peed all over her and her mummy said it was
    pretty.

[8]

A week later RP and LP took the complainant to the police where she made
    a videotaped statement. She told the police that the appellant had pulled his
    pants down in her room, that she saw his privates, and that he had touched his
    privates. She further stated that he peed at her and, when asked if it was
    normal pee, she said yes. When asked how often this happened she initially
    estimated five times but then stated 50 times. She also alleged acts of oral
    sexual contact.

[9]

When asked if she understood what it means to tell the truth, she was
    unable to give a coherent answer. She also stated that she was five years old
    (she was actually four years old) and that she was in grade five.

[10]

After
    leaving the police station, the complainant made further allegations to RP and
    LP involving sexually inappropriate behaviour on the part of her mother, sexual
    abuse of her brother, and inappropriate photographs of her taken by her parents.
    She returned to the police the next day to repeat these allegations.

Procedural history

[11]

This
    case has a long and complicated history. The appellant was originally charged
    in September 2003 and convicted after his first trial in July 2006. In January
    2009, this court allowed the appellants appeal from conviction and ordered a
    new trial on the ground that
an expert, called by the Crown to offer the opinion that the
    complainant had suffered sexual assault, was allowed to give testimony that
    indicated to the jury his views of the veracity of the complaint
:
R.
    v. P.G.
, 2009 ONCA 32, 242 C.C.C. (3d) 558.

[12]

The
    second trial commenced in March 2010 when pre-trial motions began. The Crown
    sought a ruling pursuant to
R. v. Khan
, [1990] 2 S.C.R. 531 to admit
    the complainants out-of-court statements on the ground that she would be too
    traumatized to testify. However, the expert evidence in support of the application
    was dated and no longer reflected the situation of the complainant who, by then,
    had no recollection of the alleged abuse. The Crown abandoned that ground for
    admission and sought to have the statements admitted on the ground that the
    complainant had no recollection of the incidents of alleged abuse. The trial
    judge dismissed the Crowns application for an adjournment to call further
    evidence in support of that application, dismissed the Crowns motion to amend
    its notice to advance the new ground and admonished the Crown for inadequate
    preparation. Then, after formally dismissing the Crowns
Khan
application,
    the trial judge permitted the Crown to renew the
Khan
application on
    the basis of the complainants evidence that she had no recollection.

[13]

The
    trial commenced in July 2010 and the complainant testified that she had no
    memory of making the allegations and no memory of being abused by her father.
    As the basis of the
Khan
application had shifted, defence counsel
    sought an adjournment to consult with an expert to respond. A day later,
    defence counsel indicated that the expert he intended to call was not available
    in the immediate future. At that point, the trial judge declared a mistrial.

[14]

The
    matter resumed in December 2010 when pre-trial motions were argued. The
    appellants s. 11(b) application was dismissed, the jury was empanelled and the
    trial itself resumed in January 2011.

[15]

The
    complainant testified and was cross-examined on a
voir dire
but she
    did not testify before the jury. On the
voir dire
, the complainant
    testified that she had no recollection of the alleged abuse or of having made
    any complaints about the alleged abuse. Her memory was not improved by watching
    the videos of her statements to the police.

[16]

The
    appellant testified and denied the allegations. His evidence was supported by
    that of the complainants mother and brother who contradicted significant
    aspects of the complainants out-of-court statements.

The trial judges
Khan
ruling

[17]

The
    trial judge admitted the complainants out-of-court statements during the trial
    and indicated that he would give his reasons later. Those reasons were
    delivered after the jury had found the appellant guilty. He ruled that as the
    complainant could not recall the alleged abuse, the necessity requirement was
    satisfied. The trial judge also ruled that the complainants out-of-court
    statements were sufficiently reliable to warrant admission.

[18]

No
    issue is taken with the ruling as to necessity.

[19]

The
    trial judge found, on a balance of probabilities, that he was satisfied that
    the statements were reliable. He indicated: [t]he statements were provided
    relatively close in time to the events described. He found that although there
    was no exact record of the complainants statements to the foster parents , he
    was satisfied that their records and recollection were sufficiently accurate
    to meet the requirement of threshold reliability. He  recognized that some of
    the questions put to the complainant were leading but found given the nature
    of [the complainants] answers, the wording that she used and the nature of
    what she was discussing that the recollection of [RP and LP] substantially
    reflect what [the complainant] said and that what she said was reliable.

[20]

The
    trial judge noted that the statements were spontaneous and they disclosed
    matters one would not expect a young child to know of. He found that in her
    video statement she presented as a spontaneous, bright and candid child and
    that she was articulate for her age and revealed no deliberate hesitation that
    would suggest her answers were unreliable.

[21]

The
    trial judge observed that she was unable to understand the officers
    distinction between what the [sic] true and what is a lie, given her age this
    is not surprising. He added: [t]he nature of the acts she described are in
    and of themselves, sufficient to make her statements reliable.

[22]

The
    trial judge rejected the defence request that the complainant be made available
    for cross-examination before the jury as the complainants evidence was
    restricted to her out-of-court statements.

Issues

[23]

The
    appellant raises several grounds of appeal:

1.

Did the trial judge err by not finding that issue estoppel precluded the
    Crown from renewing the
Khan
application?

2.

Did the trial judge err by dismissing the appellants s. 11(b)
    application?

3.

Did the trial judge err by ruling that the complainants out-of-court
    statements satisfied the reliability component of the
Khan
test?

4.

Did the trial judge err by refusing the appellants request that the
    complainant be made available for cross-examination?

5.

Did the trial judge err by dismissing the appellants motion to
    introduce the complainants brothers prior consistent statement to rebut an
    allegation of recent fabrication?

Analysis

[24]

The
    central issues before us relate to the admission of the complainants
    out-of-court statements and the related ground of the dismissal of the
    appellants request that the complainant be made available for cross-examination
    before the jury. As I view those grounds of appeal to be dispositive, it will
    not be necessary for me to consider the remaining grounds of appeal.

[25]

Hearsay
    evidence is presumptively inadmissible but may be admitted if it falls within
    one of the recognized hearsay exceptions or under the principled approach if
    the requirements of necessity and reliability are met:
R. v. Khelawon
2006 SCC
    57, [2006] 2 S.C.R. 787.

[26]

The
    appellant concedes that as the complainant had no recollection of the events
    giving rise to the allegations against him, the necessity element was
    satisfied. The issue for us to decide is whether the trial judge erred in
    ruling that the element of reliability was also satisfied.

[27]

The
    principled approach to hearsay evidence focuses on whether there is some fact
    or circumstance that compensates for, or stands in the stead of the
    safeguards of reliability that exist when a witness gives first-hand evidence
    in the court room, namely, that the witness: (1) testifies under oath; (2) is
    present before the trier of fact to facilitate assessment of credibility; and
    (3) is subject to being tested by cross-examination: see
R. v. B.(K.G.),
[1993] 1 S.C.R. 740, at p. 787ff.

[28]

In
Khelawon
, at paras. 62-63, the Supreme Court of Canada pointed to two ways
    the reliability requirement can be satisfied. The first is by showing that
    there is no real concern about whether the statement is true or not because of
    the circumstances in which it came about. Second, it can be satisfied by
    showing that although the statement is in the form of hearsay, its truth and
    accuracy can nonetheless be sufficiently tested.

[29]

In
    my view, the trial judge failed to pay sufficient attention to the fact that
    these statements did not benefit from any of the hallmarks of reliability that
    have been identified in the case law as important to compensate for the absence
    of or stand in the stead of the oath, the presence of the witness before the
    trier of fact and the availability of cross-examination.

[30]

First,
    none of the statements were made under oath and the complainant could not
    provide the police with a coherent explanation to demonstrate that she
    understood the difference between telling the truth and telling a lie. Although
    the trial judge found that the complainant did not appear to understand the
    difference between telling the truth and telling a lie, he gave that no weight
    in his reliability assessment. Moreover, he failed to deal with obvious
    misstatements she made as to her age and school grade or her confusion as to
    the number of times her father had peed on her. The trial judge found that
    reliability could be attributed to the fact that a young child would not have
    knowledge of the sexual acts described, yet he failed to deal with RPs
    evidence that he thought that she might have acquired that knowledge by watching
    pornography.

[31]

A
    related point arises from the trial judges finding that [t]he statements were
    provided relatively close in time to the events described and the use of that
    finding as an indicia of reliability. This reasoning reveals both a misapprehension
    of the evidence and a misreading of the leading case of
Khan
. It is
    clear from the record that the statements were not provided until at least
    several months after the events described. This stands in stark contrast to the
    situation in
Khan
where the infant complainant reported an act of
    sexual abuse within minutes of its occurrence. The delay in disclosure here was
    a factor that detracted from its reliability yet the trial judge treated the
    timing as a factor favouring reliability.

[32]

Second,
    the complainants statements to RP and LP were not recorded and the jury had
    only their recollection of what the complainant said to them. The statements to
    the police were recorded but they varied considerably from the statements made
    to RP and LP. Moreover, to the extent that the reliability assessment had to be
    made on the basis of the recollections of RP and LP, there were features of
    those statements that give rise to serious concerns as to reliability. The
    trial judge failed to advert to or explain those features. In particular, the
    suggestion that the complainants mother said she looked pretty with her
    fathers semen smeared on her face is highly implausible as was the suggestion
    that the appellant penetrated her from the front while she was on his lap, an
    allegation the trial judge expressly rejected in his reasons for sentence.
    Likewise, the trial judge failed to provide an adequate reason to alleviate the
    concern that significant aspects of the initial disclosure to RP were given in
    response to leading questions.

[33]

Third,
    the appellant had no opportunity to cross-examine the complainant on her
    statements even though this could easily have been dealt with by acceding to
    the defence request that the complainant be made available for
    cross-examination. Cross-examination of the declarant is an important safeguard
    that will often render hearsay evidence sufficiently reliable to warrant
    admission:
R. v. U.(F.J.)
,
[1995] 3 S.C.R. 764
,
at para. 32;
R.
    v. B.(K.G.),
at p. 794.

[34]

Clearly,
    in cases involving sexual offences against young children, cross-examination
    will often not be possible or appropriate. For example, had the necessity
    element rested on the fact that the complainant would be traumatized by
    testifying before the jury, cross-examination would be out of the question.
    However, here the complainant had testified without incident or protest before
    the mistrial and again on the
voir dire
when the trial resumed. In
    these circumstances, the trial judge should not have admitted the out-of-court
    statements unless the appellant had the opportunity to cross-examine her.

[35]

In
    my opinion, admitting the out-of-court statements without affording the
    appellant the opportunity to cross-examine the complainant before the jury
    produced an unfair trial. The jury was left with an incomplete and potentially
    misleading picture. The jury did not know that the complainant had no present
    recollection of the alleged abuse or of having complained of such abuse. Even
    if the complainants hearsay statements were otherwise admissible, fairness
    required that the appellant have the opportunity to point out to the jury that
    the complainant claimed to have no present recollection of her allegations of
    abuse and, if he chose to do so, to explore the reason or explanation for her
    lack of memory.

[36]

I
    conclude that the trial judge erred by admitting the complainants out-of-court
    statements into evidence.

Disposition

[37]

In
    my view, the trial judges error in ruling that the complainants out-of-court
    statements were sufficiently reliable to warrant admission is fatal to the
    convictions. I would allow the appeal and set aside the convictions.

[38]

The
    appellant has now been before the courts for almost ten years on these charges.
    He has faced two trials and he has succeeded twice on appeal. His s. 11(b)
    application was dismissed by the trial judge but at that point, two years ago,
    the case had reached the outer limit of the recognized guidelines.  He has by
    now served a substantial portion of his sentence. Given my
    ruling as to the admissibility of the complainants out-of-court statements,
    prosecuting a third trial would be problematic. In my view, in these
    circumstances, it is in the interests of justice to enter a stay of
    proceedings.

Robert J. Sharpe J.A.

I agree Susan E. Lang
    J.A.

I agree M.H. Tulloch J.A.

Released: December 6, 2012