COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Lord, 2012
    ONCA 654

DATE: 20120928

DOCKET: C52043

Sharpe, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Lord

Appellant

Keith E. Wright, for the appellant

Alexander Hrybinsky, for the respondent

Heard: September 27, 2012

On appeal from the sentence imposed on April 28, 2010 by
    Justice C. Mocha of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

In our view, given the serious nature of this fraud on an elderly
    individual and the appalling record of the appellant for offences of
    dishonesty, the custodial sentence imposed by the trial judge of 18 months was
    entirely fit.

[2]

However, there is fresh evidence to which the Crown has consented that
    prevents very unusual features.

[3]

First, the appellant has made reasonable efforts to overcome his
    alcoholism, a condition that appears to have been a strong factor in his
    criminality.  He has now been alcohol free for 6 ½ years.

[4]

Second, the appellant has made very significant efforts towards full
    restitution. Much of that has occurred post-sentence. He now has repaid the
    victim all but approximately $35,000, and a significant part of that has been
    paid in the past year.

[5]

Third, the victim of the fraud was represented by counsel before us. She
    indicates that the victim is now chiefly concerned with restitution and
    supports our terms for a conditional sentence that will require the appellant
    to make full restitution through regular monthly payments.

[6]

In our view, the fresh evidence before us brings this case with the very
    unusual circumstances in
R. v. Smolyar
(2003).

[7]

Although the appellants conduct merits a significant custodial
    sentence, circumstances have evolved in a way that it would best serve the
    overall administration of justice to craft a sentence that will have
    significant consequences for the appellant but allow and require him to make
    full restitution.

[8]

Accordingly, leave to appeal is granted, the sentence is allowed and a
    conditional sentence of 2 years less a day and probation of 3 years on the
    terms proposed by counsel and appended to this endorsement is imposed.

APPENDIX

Regina v.
    Michael Lord

File No. C52043

A.   Conditional Sentence Order (2 years less 1 day)

(i)   Statutory
      Conditions (Section 742.3(1))

(ii)  Additional
      Conditions (Section 742.3)

1.   During
        the first eight months, remain within his residence (or condominium building)
        at all times, except as permitted in Condition #4;

2.   During
        the 9th to 16th month, remain within his residence (or condominium building)
        each Monday through Friday, except as permitted in Condition #4, and from 11:00
        P.M. until 6:00 A.M. each Saturday evening and Sunday evening;

3.   During
        the 17th to 24th month, remain within his residence (or condominium building)
        from 11:00 P.M. to 6:00 A.M. every day;

4.   The
        exceptions to Conditions #1 and #2 are:

(a) for
        employment, and travelling to and from same;

(b) for
        scheduled medical and dental appointments, and medical and dental emergencies,
        and travelling to and from same;

(c) from 1:00
        P.M. until 5:00 P.M. on Saturdays, for the purpose of attending to personal
        errands (Condition #1 only);

(d) for
        scheduled appointments with conditional sentence supervisor, and travelling to
        and from same;

(e) for
        scheduled appointments with counsel, and travelling to and from same;

(f)  for
        attending court as required and travelling to and from same;

(g) for
        attending meetings of Alcoholics Anonymous, or meetings with counsellor, and
        travelling directly to and from same;

(h) on any
        other occasion, with the prior written permission of the Supervisor;

5.   Attend
        meetings of Alcoholics Anonymous, at least once per week, and more often if so
        directed by Supervisor;

6.   Attend
        such counselling as is deemed necessary by Supervisor;

7.   Not
        associate or communicate, either directly or indirectly, with Prescott Duff,
        except through counsel or through Supervisor;

8.   Pay to
        Prescott Duff, on the 15th day of each month, the sum of $1,000.00, until the
        balance referred to in the Minutes of Settlement, dated September 26, 2011, has
        been paid; and

9.   Abstain
        from the consumption of alcohol or any other intoxicating substance.

B.   Probation Order (3 years)

(i)   Statutory
        Conditions (Section 732.1(2))

(ii)  Additional
        Conditions (Section 732.1(3))

1.   Attend
          meetings of Alcoholics Anonymous, at least once per week, and more often if so
          directed by Supervisor;

2.   Attend
          such counselling as is deemed necessary by Supervisor;

3.   Not
          associate or communicate, either directly or indirectly, with Prescott Duff,
          except through counsel or through Supervisor;

4.   Pay to
          Prescott Duff, on the 15th day of each month, the sum of $1,000.00, until the
          balance referred to in the Minutes of Settlement, dated September 26, 2011, has
          been paid; and

5.       Abstain from the consumption of alcohol or any
          other intoxicating substance.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Minoose, 2012
    ONCA 628

DATE: 20120920

DOCKET: C55280

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Minoose

Appellant

Howard L. Krongold, for the appellant

Matthew Asma, for the respondent

Heard: September 19, 2012

On appeal from the sentence imposed by Justice P. Kane of
    the Superior Court of Justice dated July 28, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The Crown fairly acknowledges that the sentencing judge made two errors
    in principle: first he wrongly held that the
Truth in Sentencing Act
precluded him from giving 2:1 credit after the passage of the Act; and second
    in his
Gladue
analysis, he wrongly required the appellant to show a
    causal connection between his aboriginal background and the commission of the
    offence.

[2]

That said, the trial judge gave thoughtful reasons for the sentence he
    imposed. And, in our view, the sentence he intended to impose would be a fit
    sentence.  We agree with Mr. Krongold that, but for his error on the effect of
    the statute, the trial judge would have given 2:1 credit throughout. Therefore,
    giving effect to the trial judges intent, we increase the credit given to the
    appellant for pre-trial custody by a further 17 months. Accordingly, leave to
    appeal sentence is granted and the appeal is allowed to the extent reflected in
    this endorsement.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Murphy, 2012
    ONCA 573

DATE: 20120905

DOCKET: C52369

Laskin, Rosenberg and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Murphy

Appellant

Dirk Derstine and Mariya Yakusheva, for the appellant

Rick Visca, for the respondent

Heard: April 23, 2012

On appeal from the convictions entered on January 14,
    2010 by Justice Guy P. DiTomaso of the Superior Court of Justice, sitting with
    a jury.

Laskin J.A.:

A.

introduction

[1]

After a two-week jury trial, the appellant, Andrew Murphy, was convicted
    of unlawful possession and storage of a loaded handgun, possession of cocaine,
    and possession of cocaine and ecstasy for the purpose of trafficking.  He was
    sentenced to six years and five months in jail, less 52 months credit for
    pre-sentence custody.  He appealed his convictions.

[2]

At the conclusion of oral argument, we advised counsel that the appeal
    was allowed, the convictions were set aside, and a new trial was ordered, with
    reasons to follow.  These are the reasons.

[3]

Mr. Murphy advanced numerous grounds of appeal.  I will deal only with
    his first and main ground as it is decisive of the appeal.  He submits that the
    trial judge erred in law in refusing to allow the defence to call a witness who
    was expected to admit culpability for the offences charged.  I agree with this
    submission.

B.

background facts

(a)

How the charges arose

[4]

The police obtained a warrant and conducted a search of an apartment
    unit in a rooming house in Orillia.
[1]
The police entered the apartment early one morning, using a battering ram to
    get inside.  When they entered, they found the appellant and two others.  The
    appellant was standing on the main floor; the other two individuals were
    huddled in the loft area of the apartment.

[5]

The police seized a variety of controlled substances, a loaded handgun,
    a replica handgun, drug paraphernalia and $1,250 in cash.

(b)

The Crowns theory

[6]

The Crowns theory was that the appellant had knowledge of and control
    over the handgun, cocaine and ecstasy found in the main area of the apartment.
    The two individuals in the loft area were merely drug users.  The Crowns
    evidence included expert evidence from a police officer that the quantity of
    narcotics and the presence of the implements of the drug trade suggested
    possession of the narcotics for the purpose of trafficking.

[7]

The trial judge also ruled that the police officer could give opinion
    evidence about the behaviour of drug traffickers in relation to the storage of drugs
    and drug paraphernalia and about the connection between loaded handguns and
    drug trafficking.  One of the appellants grounds of appeal was that the trial
    judge erred in allowing the officer to give this expert evidence about the
    behavioural traits of drug traffickers and about the relationship between drugs
    and guns.  As it is unnecessary to deal with this ground of appeal, I express
    no opinion on whether this aspect of the trial judges ruling was correct.

(c)

The defence

[8]

The appellant did not testify.  However, he sought the right to call
    Alvin MacLellan as a witness.  MacLellan was expected to testify that the gun
    and narcotics found in the apartment belonged to him, not the appellant.

[9]

The trial judge required defence counsel to bring an application for the
    admission of third party or alternate suspect evidence.  He then ruled that the
    defence could not call MacLellan.  According to the trial judge, his proposed
    evidence was inadmissible because there is no evidence linking the third party
    suspect to the crime.  This ruling is the subject of my reasons.

C.

the trial judge erred in law in refusing to
    permit the defence to call maclellan

(a)

How the issue arose

[10]

MacLellans
    name initially surfaced during defence counsels cross-examination of the
    Crowns first witness, a police officer.  She asked the officer whether he had
    arrested MacLellan for trafficking in drugs.  When asked to justify this line
    of cross-examination, defence counsel said that she considered MacLellan to be
    possibly an alternate suspect but said that she wanted to further consider
    the matter.  She agreed that the trial judge should instruct the jury to
    disregard her questions concerning MacLellan and he did so.

[11]

Defence
    counsel then determined that she wished to keep open the possibility of calling
    MacLellan to testify.  The trial judge directed her to bring a formal
    application for the admissibility of this evidence.  Defence counsel objected
    to doing so.  She maintained that the evidence that I may choose to call in
    defence is presumptively admissible and therefore not subject to a third party
    suspect.  However, because the trial judge had directed her to do so, she
    brought an application framed as an alternate suspect application.  She filed a
    brief affidavit by Anitra Stevens, a secretarial and administrative assistant
    in her office, and one page of a police officers notebook, which referred to
    MacLellans arrival at the apartment after the police had conducted their
    search.  The material part of Stevenss affidavit stated:

I am advised by a member of the firm that they have spoken to
    Alwin MacLellan who will say that on August 27, 2007 a number of the illegal
    articles which form the subject matter of charges in the indictment belonged to
    and were in the sole possession of this witness.

[12]

During
    argument on the application, defence counsel summarized what she expected
    MacLellan to say and what her position was on the admissibility of his
    evidence:

The evidence at issue is an admission by a Mr. MacClelland that
    he was in possession of the illegal articles for which Mr. Andrew Murphy stands
    charged.  Thats the evidence at issue.  In my respectful submission, the
    defence is not seeking to tender any hearsay evidence.  The defence is not
    seeking to tender any propensity based evidence.  Defence is not seeking to
    tender any evidence based on motive.

And:

Because the focus of the defence of the anticipated potential
    defence evidence is simply direct evidence that would be received from the
    party claiming ownership of the illegal articles.  In my respectful submission
    there is no rule of law that finds this type of evidence presumptively
    inadmissible.

(b)

The trial judges ruling

[13]

In
    reasons reported at 2010 ONSC 156, the trial judge ruled that the defence had
    not established a sufficient connection between MacLellans proposed testimony
    and the offences with which Murphy was charged:

[49]    I find that the defence has not satisfied the
    sufficient connection test set out in
R. v. McMillan
and
R. v.
    Grandinetti
.  The defence has not established a sufficient connection
    between the third party, Mr. MacLellan and the crimes with which Mr. Murphy has
    been charged.  Without this link, the third party evidence is neither relevant
    nor probative.  The evidence may be inferential, but the inferences must be
    reasonable, based on the evidence and not amount to speculation.

[14]

The
    trial judge gave no weight to Stevenss affidavit as he said it had no
    probative value:

[53]    The affidavit coming from Ms. Stevens is double-hearsay
    and not probative on any issue.  It does not indicate who spoke with Mr.
    MacLellan and when.  It gives no particulars in respect of what Mr. MacLellan
    will say regarding which of the illegal articles belong to him or were in his
    sole possession.  The best affidavit would have and should have come from Mr.
    MacLellan.  That affidavit was not forthcoming, notwithstanding the fact that
    the defence knew of Mr. MacLellans whereabouts.

[15]

In
    concluding his ruling, the trial judge reiterated the absence of any connection
    between MacLellan and the offences charged.

[60]    I conclude that there is no evidence linking the third
    party suspect to the crime in this case.  The sufficient connection test has
    not been satisfied as the proposed third party evidence is neither relevant nor
    probative.  There is nothing connecting Mr. MacLellan to the offences before
    the court.  The Applicant has failed to demonstrate a sufficient connection
    between the crimes alleged and Mr. MacLellan.  The proposed admission is not
    contemporaneous in time to the commission of the offence.  We are now dealing
    with Mr. MacLellans proposed admission some two-and-a-half years after the
    event.  There is no evidence linking Mr. MacLellan to 42 Nottawasaga Street,
    Apt. 13, Orillia.  There is no evidence that Mr. MacLellan possessed the
    drugs.  There is no evidence that Mr. MacLellan possessed the handgun.  There
    are no eyewitnesses.  There is no evidence Mr. MacLellan was located inside 42
    Nottawasaga Street, Orillia, on August 27, 2007.  There is no evidence Mr.
    MacLellan was located inside Apt. 13 at 42 Nottawasaga Street, Orillia, on
    August 27, 2007.  There is no evidence specifically identifying any of the
    generically described illegal items which Mr. MacLellan claims to either own
    or possess.

(c)

Discussion

[16]

The
    appellant submits that the trial judge erred in refusing to permit the defence
    to call MacLellan because he misapprehended the nature of his evidence and
    misapplied the test for its admission.  I generally agree with this
    submission.

[17]

The
    law governing the admissibility of defence evidence in a criminal trial is
    well-established.  In her majority reasons in
R. v. Seaboyer
, [1991] 2
    S.C.R. 577, at pp. 611-12, McLachlin J. wrote that Canadian courts have been
    reluctant to limit the defences right to call evidence.   She explained:

The Canadian cases cited above all pertain to evidence tendered
    by the Crown against the accused.  The question arises whether the same
    power to exclude exists with respect to defence evidence.  Canadian
    courts, like courts in most common law jurisdictions, have been extremely
    cautious in restricting the power of the accused to call evidence in his or her
    defence, a reluctance founded in the fundamental tenet of our judicial system
    that an innocent person must not be convicted.  It follows from this that
    the prejudice must substantially outweigh the value of the evidence before a
    judge can exclude evidence relevant to a defence allowed by law.

These principles and procedures are familiar to all who
    practise in our criminal courts.  They are common sense rules based on
    basic notions of fairness, and as such properly lie at the heart of our trial
    process.  In short, they form part of the principles of fundamental
    justice enshrined in s. 7 of the
Charter
.  They may be
    circumscribed in some cases by other rules of evidence, but as will be
    discussed in more detail below, the circumstances where truly relevant and
    reliable evidence is excluded are few, particularly where the evidence goes to
    the defence.  In most cases, the exclusion of relevant evidence can be
    justified on the ground that the potential prejudice to the trial process of
    admitting the evidence clearly outweighs its value.

[18]

In
R. v. Clarke
,
(1998),
    18 C.R. (5th) 219 (Ont. C.A.), at para. 33, Rosenberg J.A. elaborated on the
    courts narrow power to exclude relevant defence evidence:

In
Seaboyer
, McLachlin J. clarified the test for
    exclusion of otherwise relevant evidence. She held, at p. 611, that the judge
    has the power to exclude relevant evidence tendered by the Crown on the basis
    simply that its prejudicial effect outweighs its probative value. The power to exclude
    relevant defence evidence, however, is narrower and constrained by the
    fundamental tenet that an innocent person not be convicted, a tenet which now
    has constitutional protection. As she said at p. 608, The right of the
    innocent not to be convicted is dependent on the right to present full answer
    and defence. This, in turn, depends on being able to call evidence necessary to
    establish a defence and to challenge the evidence called by the prosecution.
    McLachlin J. held, at pp. 611-12, that defence evidence may be excluded where
    the prejudice substantially outweighs the value of the evidence. In the result,
    the circumstances where truly relevant and reliable evidence is excluded are
    few, particularly where the evidence goes to the defence (at p. 611).
    Exclusion of defence evidence can be justified only where the potential
    prejudice to the trial process of admitting the evidence clearly outweighs its
    value" (at pp. 611-12).

[19]

Within
    this framework, the defence has always been permitted to call or adduce
    evidence that some other person committed the crime with which the accused has
    been charged.  However, before this third party or alternate suspect evidence
    can be admitted, the accused bears the burden of showing that the proposed evidence
    has some nexus with the alleged offence.  Without the nexus, the evidence
    would lack probative value.  In
R. v. McMillan,
(1975), 7 O.R. (2d)
    750 (C.A.), at p. 758, Martin J.A. explained the test for the admission for the
    alternate or third party suspect evidence and its rationale:

It follows that evidence of the disposition of a third person
    to commit the crime in question, like other circumstantial evidence, is
    admissible, if relevant, to prove that the crime was committed by the third
    person.

Where the character is that of a third person, not a party
    to the cause, the reasons of policy (noted ante, subsection 64) for exclusion
    seem to disappear or become inconsiderable; hence, if there is any relevancy in
    the fact of character, i.e. if some act is involved upon the probability of
    which a moral trait can throw light, the character may well be received. (Wigmore
    at p. 488.)

Obviously, unless the third person is connected with the crime
    under consideration by other circumstances, evidence of such persons
    disposition to commit the offence is inadmissible on the ground of lack of
    probative value.  For example, if A is charged with murdering X, in the absence
    of some nexus with the alleged offence, evidence that B has a propensity or
    disposition for violence, by itself, is inadmissible to prove B is the murderer
    because standing alone it has no probative value with respect to the
    probability of B having committed the offence.  If, however, it is proved that
    A, B and X all lived in the same house when X was killed, and that B had a
    motive to kill X, then evidence that B had a propensity for violence may have
    probative value on the issue whether B, and not A, killed X, and is accordingly
    admissible.

The Supreme Court of Canada affirmed this test in
R.
    v. Grandinetti
, 2005 SCC 5, at paras. 46-48.

[20]

This
    is the test the trial judge applied in dismissing Murphys application to call
    MacLellan as a witness.  The trial judge held that Murphy had not made out a
    sufficient nexus between MacLellans proposed evidence and the offences.  In so
    holding, he misapplied the test in
McMillan
.

[21]

Both
McMillan
and
Grandinetti
deal with the defences ability to
    call circumstantial evidence pointing to another persons culpability for the
    crime  be it evidence of propensity or motive or opportunity.  Without the
    sort of connections the trial judge found to be absent, this kind of
    circumstantial evidence would likely not have any probative value.

[22]

However,
    Murphy was not seeking to call circumstantial evidence pointing to another
    suspect.  He was seeking the right to call direct evidence from another person,
    who was expected to take responsibility for these crimes.  Why, I ask
    rhetorically, should he not have been permitted to call MacLellan to say, It
    is I, not Murphy, who owns the gun and the narcotics the police seized?
    Obviously, it would be for the jury to decide whether to accept that evidence
    or whether it at least raised a reasonable doubt about Murphys guilt.  On its
    face, however, the proposed evidence was sufficiently probative and relevant
    that the defence should not have been precluded from calling it.

[23]

It
    seems to me that the trial judge misapprehended the nature of the proposed
    evidence and, therefore, at para. 60 of his reasons, erred by requiring Murphy
    to show other circumstances connecting MacLellan to the offences charged.

[24]

I
    accept the Crowns submission that the requirement to show some nexus or
    connection between the third party and the offences applies whether the
    proposed evidence is direct or circumstantial or a combination of both.  In all
    cases, the connection gives the proposed evidence its probative value: see Watt
    J.A. in
R. v. Candir
, 2009 ONCA 915, at paras. 131-132.

[25]

However,
    where the defence proposes to call direct evidence from another person taking
    responsibility for the crimes charged, that proposed evidence itself
    constitutes a sufficient nexus or connection.  Nothing more need be shown and
    no formal application is necessary.  To impose an additional burden on the
    defence, as the trial judge did, would be at odds with the passages in
Seaboyer
and
Clarke
emphasising the very narrow restrictions on the defences
    right to call evidence.

D.

conclusion

[26]

The
    appeal is allowed, the convictions are set aside, and a new trial is ordered.

Released:
Sept. 5, 2012                                         John
    Laskin J.A.

JL                                                                     I
    agree M. Rosenberg J.A.

I
    agree David Watt J.A.

[1]
Apartment 13 at 42 Nottawasaga Street.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Nguyen, 2012 ONCA 644

DATE: 20120926

DOCKET: C52539

Sharpe, Simmons, and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hung Man Nguyen

Appellant

Kristin Bailey, for the appellant

Jeremy Streeter, for the respondent

Heard: September 24, 2012

On appeal from the conviction entered on March 11, 2010
    by Justice Norman S. Douglas of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The Crown agrees that the sentence appeal should be allowed and the sentence
    reduced to 15 months, in effect, the time he has already served.  We agree and
    allow the appeal on that basis.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Nicolau, 2012 ONCA 584

DATE: 20120910

DOCKET: C54567

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Doris Ender Nicolau

Appellant

Doris Ender Nicolau, in person

Danielle Robitaille, acting as duty counsel

Marie Comiskey and Ian Bell, for the respondent

Heard: August 14, 2012

On appeal from the decision of the Summary Conviction
    Appeal Court dated June 16, 2011 by Justice Lois B. Roberts of the Superior
    Court of Justice, allowing the appeal from the acquittal entered on August 28,
    2009 by Justice Peter A.J. Harris of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal and if leave is granted to appeal
    from the decision of Roberts J. allowing an appeal by the Crown from the
    decision of Harris J. dismissing charges of income tax evasion relating to the
    taxation years 2001 to 2003. The appellants defence to the charges was that
    she was unable to file her income tax returns during these years because of her
    mental state. Although she was earning substantial commission income as a real
    estate agent, she claimed that her depression prevented her from coming to
    grips with her obligations to file her income tax returns. She relied upon
    other evidence to support the claim, for example, that throughout the relevant
    period the fact that she was earning income was reported to CRA through T4A
    slips. The appellant was unrepresented at the trial and did not attend the
    summary conviction appeal. In those circumstances, it is in the interests of
    justice that leave to appeal be granted.

[2]

The Crowns appeal centred on para. 32 of the trial judges reasons
    where he set out five reasons for accepting the appellants evidence:

I have carefully evaluated all of the evidence and submissions
    and while I have some misgivings about certain aspects of her evidence, (such
    as why she was able to file GST returns in a timely fashion) I have concluded
    that Ms. Nicolaus evidence of a direct causal connection between her mental
    health issues and her failure to file tax returns should be accepted and
    entitled to some credibility for the following reasons:

(1)

Ms.
    Nicolaus erratic and at times irrational conduct during this trial (and
    pre-trial motions) is a testament to the many variable ways that Ms. Nicolaus
    mental health issues impact her judgment and her daily functioning; ...to
    suggest she was exasperatingly difficult would be a serious understatement.

(2)

Further
    her erratic and irrational behaviour is apparent from the following: when her
    files were passed to Mr. Sinclair for collection and Ms. Nicolau met with him
    and agreed to a deadline by which date she would deliver the missing returns.
    She then adopted a course of action that proved disastrous  she began working
    on her 2004 and 2005 returns with the result that her 2001-2003 files were sent
    out to investigation by the enforcement office. For lengthy periods she failed
    to respond to correspondence or explain why she was not working on the returns
    in question or why she missed the deadline.

(3)

As noted
    above, I am prepared to accept that there is some corroboration of the
    defendants mental disorder contained in the letter of Dr. Soare.

(4)

Human
    experience tells us that the Income Tax Act is notoriously complex. It is
    subject to ongoing revision. No lay person is expected to know all the
    complexities of the tax laws. Most individuals will require some professional
    assistance in the preparation of tax returns. One can imagine how a shoe box of
    three years worth of unsorted expenses measuring 6-7 in height, could prove to
    be quite challenging, even intimidating, to a person suffering from a mental
    illness such as depression with the inevitable result that she could well
    become more and more delinquent in her statutory duty. Ms. Nicolau testified
    that as a result of her illness, her husband helped her with all the paperwork
    associated with real estate sales and when she found herself facing prosecution
    on February 15, 2007, he prepared her income tax returns. This explanation goes
    some distance towards an understanding of how she was able to seemingly
    function appropriately at work and have the three missing returns prepared in
    such a short period.

(5)

There
    was never any attempt to deny her tax indebtedness to the C.R.A. In fact she
    was so forthright about her tax liability, the Toronto C.R.A. office accepted
    her income and expense figures to the penny.

[3]

The Crown argued that the trial judge, having ruled much of the evidence
    referred to in these passages to be inadmissible, erred in relying on the
    evidence in accepting the appellants testimony.

[4]

In allowing the Crown appeal, the appeal judge dealt only with item
    (3)--the letter from Dr. Soare. This letter found its way into the record
    through a Crown witness as part of the chronology of dealings between the
    appellant and CRA. The trial judge made it clear to the appellant in the course
    of the trial that this letter was inadmissible as proof of its contents. During
    a lengthy exchange with the appellant, in the course of the appellants
    testimony, the trial judge explained that the letter was not admissible for its
    truth, even though there was no question that the letter was authentic.
    Notwithstanding this exchange, in his reasons for judgment, the trial judge
    conducted an abbreviated analysis using the principled approach to admission of
    hearsay and determined that the letter should be admitted into evidence and
    given some limited weight.

[5]

The appeal judge reasoned as follows:

Correctly holding at paragraph 30 of his Trial Judgment that
    Dr. Soare's letter was "inadmissible hearsay", Justice Harris
    nevertheless determined that it should be admitted into evidence, referencing
    the analysis set out by the Supreme Court of Canada in
R. v. Khelawon
,
    without holding a
voir dire
as required under that analysis to determine
    reliability and necessity, or otherwise giving the Crown the opportunity to
    make submissions, including whether or not Dr. Soare was truly unavailable as
    claimed by Ms. Ender Nicolau.

Ms. Ender Nicolau admitted knowing that she was required to
    serve Dr. Soare with a summons to witness but gave no particulars of her
    efforts to locate Dr. Soare, including a simple search on the website of the
    College of Physicians and Surgeons of Ontario. There was no reliable evidence
    to support Justice Harris' conclusion that the criterion of necessity had been
    demonstrated because Dr. Soare was unavailable.

If Dr. Soare's note was being tendered as a medical report,
    trial fairness required that the respondent should have given the requisite
    notice to the Crown to enable it to seek to cross-examine Dr. Soare. The
    respondent failed to do this and the Crown was deprived of its right to
    cross-examine Dr. Soare or call an expert medical witness to rebut the
    respondent's contentions.

The Crown's right to test Dr. Soare's note was particularly
    important because Dr. Soare's note by itself is not corroborative of Ms. Ender
    Nicolau's position that her mental health problems prevented her from filing
    her returns in a timely manner. The note merely states that she has been
    suffering from "mood changes", "mostly depression", without
    indicating the extent and effect of those issues on her ability to function.
    Justice Harris erred by reading more into the note than was written or could be
    reasonably inferred.

Moreover, while, as indicated in Dr. Soare's note, Ms. Ender
    Nicolau may have suffered from "mood changes" and "mostly
    depression", the evidence at trial, including the testimony of Ms. Ender
    Nicolau, does not establish that she suffered from any mental health issues
    that prevented her from filing her returns in a timely manner.

Given the trial judge's stated difficulty with Ms. Ender
    Nicolau's credibility, without Dr. Soare's note, it is unlikely that the trial
    judge would have accepted the respondent's defence. Ms. Ender Nicolau's evidence
    about her alleged mental health issues was conflicting and contradictory and by
    itself would not have supported her defence.

[6]

We agree with the appeal judge that the trial judge erred in admitting
    the letter. We also agree with her reasons. It may be, as Ms. Robitaille
    argued, that the admission of the letter alone would not be grounds for setting
    aside the acquittal, since the letter did not make a causal connection between
    the appellants mood changes and her ability to file her returns. And, the Crown
    did not challenge the fact that the appellant did suffer from some type of
    mental disorder.

[7]

The full text of Dr. Soares letter is as follows:

This is to confirm that Ms. Nicolau has been suffering of mood
    changes (mostly depression) in the last 7 years.

[8]

That the appellant suffered from some kind of mental illness, which she
    described in her testimony as depression, was never an issue in the case. Crown
    counsel did not challenge the appellant on this issue even after the trial
    judge conducted his own probing questioning of the appellant. In that
    questioning, the trial judge asked the appellant about her mental state, when
    she started seeing Dr. Soare, whether she was taking medication and why she was
    able to be a successful real estate agent during this time, despite her mental
    state. After this questioning, the trial judge asked Crown counsel if she
    wished to question the appellant and she declined.

[9]

The concern is, however, that, as the appeal judge noted, the trial
    judge gave more weight to the letter than it could reasonably bear.

[10]

In
    any event, the respondent Crown seeks to uphold the order allowing the appeal
    on the basis that the trial judge erred in law in respect of some of the other
    reasons for accepting the appellants testimony. We now turn to those issues.

(1)

The 2004 and 2005 returns

[11]

The
    Crown sought to admit evidence at trial that the appellant had filed her 2004
    and 2005 returns. The Crowns theory was that whatever mental health concerns
    the appellant had, she was able to file those returns, for years when she owed
    only small amounts of money. The trial judge held that the evidence was
    inadmissible:

It was argued that to prove that Ms. Nicolau could file if she
    really wanted to and was not so debilitated by mental health concerns that she
    could not file in 2004 and 2005. In my view that analysis is problematic
    because its just as likely that Ms. Nicolau became aware of an investigation
    into her 2001 to 2003 returns or lack of returns and obtained assistance,
    family assistance or whatever, to file the 2004 and 2005 year returns,
    motivated by concern about being under investigation.

So because there is no way of eliminating the effect of the
    investigation on the motivation to file for 2004 and 2005 its virtually
    impossible, in my view, to argue subsequent good conduct in relation to the
    failure to file offence can rebut a defence of lack of intent due to mental
    health issues, especially where the investigation, as I say, would likely be a
    significant factor in the 2004 and 2005 filings.

This evidence is simply not probative of anything and
    prejudicial and will be excluded. So I am going to leave that exhibit before
    the Court. I am just not going to give it any effect. That is the Exhibit
    Number One (H).

[12]

Notwithstanding
    this ruling, the fact that the appellant did file her 2004 and 2005 returns
    became a key part of her defence. She testified that the impact of her mental
    illness was manifested by the fact that even though she knew she was under
    investigation for her 2001 to 2003 returns she devoted her resources to filing
    the 2004 and 2005 returns, thus further delaying her completing the 2001 to 2003
    returns. Crown counsel at trial, not Ms. Comiskey, asked the trial judge to
    revisit his ruling in light of the appellants evidence. The trial judge indicated
    that he would entertain submissions on the issue, after the appellant finished
    testifying in-chief. However, the trial judge, rather than hearing submissions,
    told Crown counsel that he was going to ignore that part of the appellants
    evidence:

Well, if it helps you at all I am prepared to maintain the
    consistency of the earlier rulings and just ignore anything in Ms. NicolauI
    have not admitted this into evidence yet.

No. I just allowed Ms. Nicolau to read everything because it
    was easier because of the flow of her evidence. But where it pertains to
    matters I have ruled on I simply will follow and be consistent with those
    rulings.

[13]

That
    being said, when in her cross-examination the appellant again referred to her
    catastrophic mistake in working on the 2004 and 2005 returns, Crown counsel
    did conduct a limited cross-examination, primarily focused on the fact that in
    2005 to 2007, the appellant was working on her 2001 return. Crown counsel did
    not again ask the trial judge to revisit his ruling on the 2004 and 2005
    returns, no doubt because the trial judge had made it clear that he was
    ignoring that evidence.

[14]

Notwithstanding
    his ruling, the trial judge nevertheless relied, as item #2, on the appellants
    disastrous action in filing the 2004 and 2005 returns. This was an error in
    law. Having ruled the evidence inadmissible, it was not open to the trial judge
    to then use that same evidence to support the appellants credibility. This
    evidence went to the heart of the appellants defence. The Crown was entitled
    to place the complete picture before the court and probe the legitimacy of the
    appellants defence.

(2)

The Honesty of the 2001 to 2003 returns

[15]

The
    Crown also sought to adduce evidence that when she did eventually file her 2001
    to 2003 returns, the appellant failed to report all her income, and in
    particular rental income. The trial judge ruled this evidence was inadmissible:

The third piece of questioned evidence on which I have
    reserved, relates to alleged rental income which is said to have been unreported
    on any return. This is what is called similar fact or discreditable conduct
    evidence, which is not, in my view, relevant to any issue. It does not tend to
    establish whether the failures to file returns were by design or unintentional
    or to rebut the defence of lack of capacity to file returns. It is not a matter
    of likelihood that a person who had failed to report income, if she did at all,
    and I dont find that at this stage that she has, but it is not a matter of a
    likelihood that a person who would fail to report income would also likely fail
    to file returns.

There is no similarity to the different acts that could raise a
    probative inference. In other words, there is nothing similar between failing
    to report income and failing to file income tax returns.

In addition, the rental income issue could result in
    significant prejudice as Justice Binnie noted in
R. v. Handy
, Supreme
    Court of Canada, this evidence could have radically changed the trial that Mr.
    Handy was facing over an incident to which he pleaded not guilty but was
    confronted with, in that case, eight different incidents of which seven were
    not the subject matter of any charge.

Here Mr. Karlos accepted Ms. Nicolaus reported income and
    closed the books on those years, 2004, 2005 and those earlier years once she
    had filed returns. And it is my view that Ms. Nicolau should not have to defend
    dissimilar allegations about whether her returns were dishonest or not. This is
    what I would classify as bad character evidence from which it is argued she is
    more likely to have committed the offence with which she is charged, in other
    words, propensity reasoning thats impermissible. This evidence of unreported
    rental income will be excluded from evidence on the basis that it is not
    relevant to any issues and its probative value is outweighed by the prejudicial
    effect of that evidence.

So once again what I would be doing is simply not giving any
    weight and basically ignoring the evidence of Mr. Karlos to the extent that he
    referred to an allegation of unreported income.

[16]

Yet
    when the trial judge came to determining the appellants credibility, he took
    into account as item #5 that the appellant was so forthright about her tax
    liability, the Toronto C.R.A. office accepted her income and expense figure to
    the penny. This was an error in law; having ruled evidence inadmissible as to
    whether the appellant had filed accurate returns, the trial judge could not then
    assume that those returns were accurate and use this evidence to support the
    appellants credibility.

[17]

This
    aspect of the case also went to the heart of the appellants defence. She
    claimed that she never attempted to hide her income; that it was all revealed
    in her T4As. The evidence that the Crown wanted to introduce, if believed,
    would have undermined that element of the defence.

DISPOSITION

[18]

We
    are satisfied that these errors justify the order for a new trial. These errors
    were central to the appellants defence and had the trial judge properly
    directed himself, his judgment dismissing the charges would not necessarily
    have been the same.  Accordingly, the appeal is dismissed.

M. Rosenberg J.A.

R.A. Blair J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Noorali, 2012 ONCA 589

DATE: 20120907

DOCKET: C52637

Rosenberg, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tohir Noorali

Appellant

Victor Giourgas, for the appellant

Holly Loubert, for the respondent

Heard: September 6, 2012

On appeal from the conviction entered on May 21, 2010 and
    the sentence imposed on June 30, 2010 by Justice Ian A. MacDonnell of the Superior
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the trial judge erred in finding that the
    search was reasonable and that the Crown proved the appellant had knowledge of
    the guns and other contraband in the car. We do not agree.

[2]

As to the search, we agree with the trial judges careful reasons. He
    explained his findings of fact and correctly applied the law. In particular, it
    was open to the trial judge to find that Officer Ross did get the licence
    number from the confidential informer. The detail in the tip was compelling and
    the informer was reliable.

[3]

As to the finding of knowledge, it was for the trial judge to assess the
    reliability of the appellants sister-in-law and brother. He did not rely
    solely on the manner in which they gave evidence but looked to the substance of
    the evidence.

[4]

It was also open to the trial judge to interpret the utterance in the
    way he did and accordingly find that it was a cogent piece of circumstantial
    evidence.

[5]

Accordingly the appeal from conviction is dismissed.

[6]

As to sentence, despite the steps the appellant had taken since his last
    jail sentence, given his record for similar offences and the seriousness of
    these offences, the sentence was fit.

[7]

Accordingly, while leave to appeal sentence is granted, the appeal from
    sentence is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ontario
    Corp. 311578 (Dedrick Bros. Excavating Ltd.),
2012 ONCA 604

DATE: 20120914

DOCKET: C54746

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ontario Corp. 311578 operating as Dedrick Bros.
    Excavating Ltd.

Respondent

Brian Wilkie, for the appellant

Thomas A. Cline (Q.C), for the respondent

Heard: August 22, 2012

On appeal from the order of Justice
Gethin
    B. Edward of the Ontario Court of Justice dated September 12, 2011, dismissing
    the appeal from the acquittal entered by His Worship Justice of the Peace
    Richard Kivell dated February 17, 2011.

Feldman J.A.:

[1]

The respondent was charged under s. 7(1) of the
Aggregate Resources
    Act
, R.S.O. 1990, c. A.8 (the
ARA
), with operating a pit
    without a licence. The respondent was carrying out a contract with a local
    farmer in Norfolk County, whereby he was removing the top soil, levelling the
    sand knolls, selling the sand, then restoring the land with the top soil to
    make it arable for farming. Neither he nor the farmer had obtained a licence to
    operate a pit or quarry.

[2]

Section 7(1) of the
ARA
provides:

7(1) No person shall, in a part of Ontario designated under s.
    5, operate a pit or quarry on land that is not land under water and the surface
    rights of which are not the property of the Crown except under the authority of
    and in accordance with a licence.

[3]

There are several definitions in s. 1(1) of the
ARA
that are
    important for the analysis:

pit means land or land under water from which unconsolidated
    aggregate is being or has been excavated, and that has not been rehabilitated,
    but does not mean land or land under water excavated for a building or
    structure on the excavation site or in relation to which an order has been made
    under subsection (3);

excavate includes the preparation of land for excavation and
    removal of hills, sand dunes, knolls, stones and rocks other than metallic ores
    from the general surface of the ground;

aggregate means gravel, sand, clay, earth, shale, stone, limestone,
    dolostone, sandstone, marble, granite, rock or other prescribed material;

operate, when used in relation to a pit or quarry, means
    "work" and includes all activities associated with a pit or quarry
    that are carried out on the site;

rehabilitate means to treat land from which aggregate has
    been excavated so that the use or condition of the land,

(a)   is
    restored to its former use or condition, or

(b)   is
    changed to another use or condition that is or will be compatible with the use
    of adjacent land.

[4]

The parties proceeded before the Justice of the Peace by an agreed
    statement of facts. Together with other business activities, the respondent has
    been in the business of restoring agricultural land for the past 30 to 35
    years, never under the authority of a pit excavation licence. The respondent
    generally does not charge the farmer for this service because the respondent
    obtains the benefit of removing and selling the sand from the knolls that are
    levelled.

[5]

In this case, in the event that the farmer needed some of the sand at
    one of his other farms, he would pay the respondent to truck it there. The
    farmer estimated that once the rehabilitation of his land was complete, the
    value of his property would be increased by $2,000 per acre and the
    productivity of the land would also be enhanced. Although the farmer looks to
    the respondent for his expertise in rehabilitating the land, it is the farmer
    that makes the ultimate determination of what will take place on his land.

[6]

The Justice of the Peace acquitted the respondent, finding that because
    the respondent rehabilitates the land, the land is not a pit within the
    definition under the
ARA
.

[7]

On appeal to the Ontario Court of Justice, the court referred to s. 2 of
    the
ARA,
which sets out its purposes:

2. The purposes of this Act are,

(a)   to
    provide for the management of the aggregate resources of Ontario;

(b)   to
    control and regulate aggregate operations on Crown and private lands;

(c)  to
    require the rehabilitation of land from which aggregate has been excavated; and

(d)   to
    minimize adverse impact on the environment in respect of aggregate operations.

[8]

The court found that it was not the purpose of the
ARA
to
    regulate the type of activity where a farmer was simply trying to improve his
    farmland to better grow crops. He reasoned that because the respondents
    intent was to remove the sand, then to make the land useful for farming, i.e.
    to rehabilitate the land, the respondent was not operating a pit within the
    definition under the
ARA
.

[9]

Leave to appeal to this court was granted.

[10]

The
    Crown, represented by the Ministry of Natural Resources, submits that while
    sand is being excavated, and before the rehabilitation process is complete, the
    person doing the excavating is operating a pit within the definition. In
    response to the decision of the appeal judge that the
ARA
is not
    intended to cover farms, the Ministrys position is that there was no evidence
    that large-scale excavations of aggregate for agricultural purposes require
    less management than excavations for other purposes, or that their
    environmental impacts would be of a lesser magnitude. In this case, the
    restoration of the lands was an extensive project intended to take years.

[11]

The
    Ministry referred to s. 1(3) of the
ARA
, which is a ministerial
    exemption available when the primary purpose of the excavation is not the
    extraction of aggregate. In its factum, the Ministry stated that such an
    exemption would have been available in this case. However, in oral argument,
    counsel resiled from this position and indicated that the Ministry would likely
    have refused to grant such an exemption if the respondent had applied for one.
    Finally, the Ministry took the position that the respondent, not being a
    farmer, had only a commercial purpose and not a farming purpose for its activity.

[12]

The
    respondent submits that there are two issues on the appeal. Only the first was
    decided by the courts below. The first issue is, was there a pit within the
    definition under the
ARA
?  The second issue is, if there was a pit,
    whose pit was it?

[13]

On
    the first issue, the respondent submits that the establishment of a pit or
    quarry is primarily a land use issue governed by the
Planning Act
,
    R.S.O. 1990, c. P.13. The Official Plan of Norfolk County, which was passed in
    2006 and approved by the Minister of Municipal Affairs and Housing in December
    2009, designates the subject lands as agricultural land. The governing by-law
    does not permit the operation of a pit or quarry on lands zoned agricultural.
    However, it allows above-grade levelling of agricultural land to extend
    agricultural uses notwithstanding  the definition of a pit or quarry.
    Finally, s. 71 of the
Planning Act
provides that in the event of a
    conflict with another Act, the provisions of the
Planning Act
prevail.

[14]

The
    respondents position is that from an interpretative purpose perspective, it
    was not intended that the ordinary activities associated with farming require a
    pit licence. It argues that if the impugned activity on a farm requires a pit
    licence, so would excavating for tile drainage, the digging of irrigation
    ponds, excavating in order to clean up head lands and wind breaks, excavation
    for archaeological purposes, and the removal of rocks and stones from fields.
    He adds that the excavation of beach sand around cottages would also be subject
    to licencing.

[15]

Responding
    to the Ministrys submission that exempting these types of long-term farm
    rehabilitation projects would allow an aggregate producer to excavate any
    amount of aggregate uncontrolled, the respondent counters that the applicable
    by-law would preclude that degree of excavation. Furthermore,  the by-law
    prohibits a commercial use of land.

[16]

On
    the second issue, the respondent argues that if a pit licence is required, then
    it is the owner of the land who must obtain the licence. It is the owner who
    controls and directs the entire project. The respondent is there at the owners
    request and by his leave.

Analysis

[17]

The
    question in this case involves an exercise in statutory interpretation. The
    accepted modern approach is set out in Elmer A. Driedger,
Construction of
    Statutes
, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, most recently
    referred to by the Supreme Court of Canada in
Euro-Excellence Inc. v. Kraft
    Canada Inc.
, 2007 SCC 37, [2007] 3 S.C.R. 20, at para. 2:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

[18]

It
    is clear that what the respondent was doing was excavating a pit within the
    grammatical and ordinary sense of the definition in the
ARA
. The
    respondent argues that the
ARA
should not be interpreted to include
    pits that are being excavated and that will be rehabilitated in order to
    improve farmland and not for the purpose of commercial aggregate production.
    The problem with that interpretation is that s. 1(3) provides a specific
    ministerial exemption where the primary purpose of the excavation is not for
    the production of aggregate. There would be no need for such an exemption if
    the licencing requirement did not apply,
prima facie
, to the
    particular excavation. Moreover, the intention to rehabilitate the excavation
    in the future does not take the operation out of the definition of a pit. That
    definition covers land that has not been rehabilitated and s. 48 requires all
    licencees and permittees to rehabilitate the site in accordance with the Act
    and regulations.

[19]

There
    is no specified exemption for farm betterment projects. This is another
    indication within the statute that there is no intent to exempt such projects
    from the licencing requirements of the
ARA
.

[20]

Contrary
    to the conclusion of the appeal judge, the purposes of the
ARA
set out
    in s. 2 apply to these projects, particularly when the projects are significant
    in scope and duration, such as the impugned project in this case.  In cases
    where the project is much more limited, such as some of the examples suggested
    by the respondent, presumably a s. 1(3) exemption could be available.

[21]

As
    to the argument that this is strictly
a
Planning Act
issue and that the
ARA
has no application, it appears that both acts
    can apply in appropriate circumstances. Section 66 of the
ARA
provides
    for the overriding application of the
ARA
despite any municipal
    by-law, while s. 12.1 states that no licence shall be issued where a zoning
    by-law prohibits the site from being used for the operation of a pit. In this
    case, while the area is zoned for farming and pits are prohibited, the applicable
    zoning by-law, quoted above, appears to have an exemption for farmers levelling
    their land. Therefore the
ARA
can apply. Presumably, any pit licence
    issued under the
ARA
would be carefully tailored to the applicable
    zoning restrictions.

[22]

The
    respondents second argument seems to be that if a licence is required, it is
    not the contractor but the owner of the pit who must obtain it. Section 7(1)
    makes it an offence for a person to operate a pit. It makes sense that the
    person who owns and controls the pit is also operating the pit for the purposes
    of s. 7. After all, that person can hire and fire one or more trucking
    companies to conduct the actual grading operation. However, the wording of s.
    7, which is directed to anyone who operates the pit, i.e. works the pit,
    clearly extends to the actual on-site operator as well.

Conclusion

[23]

In
    the result, I would allow the appeal, set aside the acquittal, and based on the
    agreed statement of facts that forms the record in this case, enter a conviction and refer the matter back to the Justice of
    the Peace for sentencing.

Released: K.F.  September 14, 2012

K.
    Feldman J.A.:

I
    agree Robert J. Sharpe J.A.

I
    agree E. Ducharme 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(1), (2), or (3) of the
Criminal Code
shall continue.
    These sections of the
Criminal Code
provide:

486.    (1)
Any proceedings
    against an accused shall be held in open court, but the presiding judge or
    justice may order the exclusion of all or any members of the public from the
    court room for all or part of the proceedings if the judge or justice is of the
    opinion that such an order is in the interest of public morals, the maintenance
    of order or the proper administration of justice or is necessary to prevent
    injury to international relations or national defence or national security.

(2)
For the purpose of
    subsection (1), the proper administration of justice includes ensuring that.

(a)       the interests of the witnesses under the age of
    eighteen years are safeguarded in all proceedings; and

(b)       justice system participants who are involved in the
    proceedings are protected.

(3)
If an accused is charged
    with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection
    160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and
    the prosecutor or the accused applies for an order under subsection (1), the
    judge or justice shall, if no such order is made, state, reference to the
    circumstances of the case, the reason for not making an order.  R.S., c. C-34,
    s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25;
    R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s.
    9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29;
    2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s.
    15; 2005, c. 43, ss. 4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. P.S., 2012
    ONCA 624

DATE: 20120920

DOCKET: C52665

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.S.

Accused/Appellant

Paul Calarco, for the appellant

Eric Siebenmorgen, for the respondent

Heard: September 19, 2012

On appeal from the conviction entered on December 23,
    2009 by Justice P. Grossi of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his convictions on charges of sexual interference,
    invitation to sexual touching and corrupting morals. He was acquitted of a
    charge of sexual assault. He appeals on the basis that the trial judge gave
    inadequate reasons for treating the complainants testimony differently across
    the four charges, and on the basis the verdicts were unreasonable. We are not
    persuaded by either argument.

[2]

We do not agree with the characterization that the trial judge made
    inconsistent findings relating to the complainants testimony. He was clear
    that he never rejected her evidence. Rather, her testimony did not satisfy him
    of the appellants guilt beyond a reasonable doubt on the sexual assault count
    as it did on the others. The trial judge explained what troubled him on the
    sexual assault count.

[3]

There was ample evidence to support the convictions, so we do not accept
    the appellants contention the verdicts were unreasonable.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Pan, 2012
    ONCA 581

DATE: 20120910

DOCKET: C53300 & C53744

Laskin, Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Er Mei Pan and Quan Zhen Ban

Respondents

Kevin Wilson, for the appellant

Kim Schofield, for the respondents

Heard: April 27, 2012

On appeal from the orders of Justice J. Elliott Allen of
    the Ontario Court of Justice dated January 19, 2011 and April 29, 2011, staying
    the proceedings against the respondents.

Laskin
    J.A.:

A.

overview

[1]

The overriding issue on this crown appeal is whether the trial judge
    erred in principle or exercised his discretion unreasonably in staying charges
    against the respondents Pan and Ban.

[2]

The Peel Regional Police obtained a search warrant for a house where
    they believed there was a marijuana grow operation.  They went to the house,
    knocked repeatedly, and announced that they were the police with a warrant.  No
    one answered.  After 30 to 40 seconds, the police rammed open the door.  Inside
    they found 1,370 marijuana plants.  They also found and arrested Pan and Ban.

[3]

The respondents were charged with production of marijuana, possession
    for the purpose of trafficking in marijuana and theft of electricity.  The
    Crown proceeded by indictment and the respondents were tried in the Ontario
    Court of Justice.

(i)

The Stay of Pans Charges

[4]

The respondents needed interpreters, and interpreters were available for
    them on the first three days of the trial, during which all the evidence was
    heard.  On the fourth day of trial, the date set for argument, a Mandarin
    interpreter was not available for Pan.  Although neither respondent asked him
    to do so, the trial judge stayed the charges against Pan.  He expressed
    frustration with what he viewed as chronic and deliberate underfunding of the
    courts.  He claimed that his judicial independence and Pans right both to
    access her own trial and to be tried within a reasonable time had been
    compromised.

[5]

The Crown appeals this stay.  It submits that the trial judge erred in
    principle by failing to apply the proper test for a stay.  The Crown also
    submits that the trial judge erred in law in holding that the unavailability of
    an interpreter on one day of the trial interfered either with his judicial
    independence or Pans right to be tried within a reasonable time.  The Crown
    contends that the trial judge should simply have adjourned the trial to a day
    when a Mandarin interpreter would be available.

(ii)

The Stay of Bans Charges

[6]

Ban was injured during his arrest.  He sought a stay under s. 24(1) of
    the
Charter
on the ground that the police breached his s. 7 rights by
    using excessive force.  The trial judge rejected Bans evidence and did not
    find that the polices use of force was excessive.  Nevertheless, he stayed the
    charges on the ground that the police had breached the knock-and-announce rule
    and that Bans injuries were a foreseeable consequence of this breach.

[7]

On its appeal of this stay, the Crown makes three main submissions:

(1)

The trial judge erred in law in holding that the police breached the
    knock-and-announce rule;

(2)

The trial judge erred in law in finding a breach of s. 7 of the
Charter
;
    and

(3)

The trial judge erred in law by failing to apply the proper test for a
    stay under s. 24(1) of the
Charter
.

[8]

I agree with the Crowns submissions.  For the reasons that follow, I
    would allow the Crowns appeal, set aside both stays, and order a new trial for
    both respondents.

B.

stay of the charges against pan

[9]

The respondents trial had proceeded on three non-consecutive days  two
    in June 2010 and the third in November 2010.  Argument was scheduled for
    January 19, 2011.  On that date, the Mandarin interpreter arranged for Pan was
    not available; she was in another courtroom.

[10]

Without
    having been asked by counsel, the trial judge stayed the charges against Pan.
    In his view, the root problem was the provinces decision to allocate
    inadequate resources to interpreters, to allow me to continue at least Ms.
    Pans case today.  He rejected the option of an adjournment or severance and
    concluded his ruling by saying:  I will, in fact, not allow this failure of
    the province to properly fund the justice system to go without consequences.

[11]

The
    trial judge grounded the stay on three bases:

(1)

Interference with judicial independence;

(2)

Denial of Ms. Pans right to be tried within a reasonable time; and

(3)

An abuse of process because Ms. Pan could not access her own trial.

[12]

The
    Crown has a right of appeal against a stay under s. 676(1)(c) of the
Criminal

Code
.  A stay is a discretionary remedy.  It is also a remedy of last
    resort, to be ordered only in the clearest of cases.  An appellate court is
    entitled to interfere if the trial judge exercised this discretion unreasonably
    or erred in principle, which includes erring in law.  Against this standard of
    review I turn to the trial judges three grounds for granting a stay.

(i)

Interference with judicial independence

[13]

The trial judge found that the unavailability of an
    interpreter compromised judicial independence: It impacts on the independence
    of the judiciary, both in terms of having adequate supports to do their jobs
    and particularly the right under the
Courts of Justice Act
to
    determine when cases proceed  I will not be told that I cannot continue a
    trial on a date which I have ordered the trial to proceed because the province
    will not provide adequate resources.

[14]

The
    trial judge was understandably frustrated because the case could not go forward
    that day.  But to say that judicial independence was affected because it could
    not was wrong in principle.

[15]

Judicial
    independence has three characteristics: security of tenure, financial security
    and administrative independence.  In this case, only administrative
    independence could conceivably be implicated.  Unlike, for example, financial
    security, which has both an individual and an institutional aspect,
    administrative independence attaches only to the court as an institution.
    Contrary to the apparent view of the trial judge, administrative independence
    has nothing to do with the individual independence of a judge of the court.  It
    means control by the court, as an institution, over the administrative
    decisions that bear directly and immediately on the exercise of the judicial
    function.  The Supreme Court has defined administrative independence narrowly,
    referring only to the assignment of judges, sittings of the court and court
    lists  as well as the related matters of allocation of court rooms and
direction
    of the administrative staff engaged in carrying out these functions

    (emphasis added): see
Reference re: Remuneration of Judges of the
    Provincial Court (P.E.I.)
, [1997] 3 S.C.R. 3, at paras. 115-20.

[16]

The
    trial judges finding that judicial independence was compromised could only be
    supported if there were evidence that the unavailability of an interpreter that
    day amounted to interference with the ability of the Ontario Court of Justice,
    as an institution, to direct its administrative staff.  There was no such
    evidence.  The trial judges complaint that the province chose to allocate
    inadequate resources to interpreters was entirely unsubstantiated.  Thus,
    grounding the stay of the charges against Pan on interference with judicial
    independence was unwarranted.

(ii)

Denial of Ms. Pans right to be tried within a
    reasonable time

[17]

The
    trial judge also found that the unavailability of an interpreter impacts on
    the right of the accused to be tried within a reasonable time and to continue with
    their trial  [s]o it is a gross violation of Ms. Pans right to have her trial
    continue.

[18]

Section
    11(b) of the
Charter
guarantees an accused the right to a trial within
    a reasonable period of time.  A well-established framework exists for
    determining whether an accuseds s. 11(b) right has been violated.  The court
    must consider and balance four criteria: the length of the delay, waiver of
    time periods, the explanation for the delay, and prejudice: see
R. v. Morin
,
    [1992] 1 S.C.R. 771.

[19]

Ms.
    Pan did not bring a motion for a stay for a violation of s. 11(b).  Even if the
    trial judge could grant a stay without one having been requested, he was at
    least required to carry out the analysis mandated by the Supreme Court of
    Canada in
Morin
.  He did not do so.

[20]

Admittedly,
    at various points in his ruling, the trial judge did refer to matters that
    could be considered on a s. 11(b) assessment.  For example, the charges were
    serious, Ms. Pan was on bail, and her life was on hold while the charges were
    outstanding.  However, these isolated references do not constitute a proper s.
    11(b) analysis.

[21]

The
    trial judge was, therefore, wrong in principle to ground a stay on a denial of
    Ms. Pans s. 11(b) right to a trial within a reasonable time.  Had he adjourned
    the trial, as he ought to have done, Ms. Pan would have been entitled to bring
    a s. 11(b) motion on a continuation of the trial.  Whether such a motion would be
    successful is not before us.

(iii)

Abuse of process because Ms. Pan could not
    access her own trial

[22]

The
    trial judge did not use the words abuse of process, but both counsel urged that
    this is what he meant when he held Ms. Pan could not access her own trial because
    an interpreter was not available for her.  I accept counsels characterization
    of the trial judges intent.  However, a stay for abuse of process because of
    the unavailability of an interpreter was not justified.

[23]

Section
    14 of the
Charter
did guarantee Ms. Pan the right to the assistance of
    a Mandarin interpreter, as she did not understand the proceedings in English.
    Without the assistance of an interpreter, she could not have a fair trial.
    However, the usual remedy for a breach of s. 14 is a rehearing of the
    proceeding in which the breach occurred: see
R. v. Tran
, [1994] 2
    S.C.R. 951.  In this case, a simple adjournment to a date when an interpreter was
    available would have addressed the prejudice that would have flowed from
    proceeding without one.

[24]

In
    addition, the trial judge erred by failing to consider, let alone apply, the
    proper test for a stay.  A stay is a remedy of last resort because it deprives
    the community of a trial on the merits.  It is to be granted only in the clearest
    of cases and usually only if two criteria are met:

·

The prejudice caused by the abuse in question will be manifested,
    perpetuated or aggravated through the conduct of the trial, or by its outcome;
    and

·

No other remedy is reasonably capable of removing the prejudice.

See e.g.
R. v. Regan
, 2002 SCC 12, [2002] 1
    S.C.R. 297.

[25]

Had
    the trial judge applied this test, he could not have stayed the charges against
    Pan because she could not access her own trial.  Neither criterion was met.
    Even if she were prejudiced by the unavailability of an interpreter that day,
    that prejudice would not be manifested, perpetuated or aggravated by
    continuing the trial with an interpreter on another day.  Another remedy  an
    adjournment to a date when an interpreter was available  was reasonably
    capable of removing the prejudice.  The trial judge was, therefore, wrong to
    stay the charges on the ground Pan could not access her own trial that day.

[26]

In
    staying the charges against Pan, the trial judge erred in principle and
    exercised his discretion unreasonably.  I would set aside the stay and order a
    new trial on the charges against Pan.

C.

Stay of the Charges Against Ban

[27]

The
    circumstances of Bans arrest gave rise to his motion for a stay and to the
    trial judges order granting it.  The police knocked on the door, announced who
    they were and why they were there, and then, on getting no response, battered
    opened the door and entered the house.  They had their guns out.  One of the
    police officers, Holland, found Ban in the basement washroom and tried to
    arrest him.  Ban and the police gave different accounts of what then occurred.

[28]

Ban
    testified that while he was urinating, a police officer confronted him and hit
    him with the butt of a handgun.  Ban said that a number of officers forced him
    to the floor, kicked him and stepped on him.

[29]

Holland,
    on the other hand, testified that Ban was hiding behind the door in the
    bathroom with his hands tucked in toward his chest where Holland could not see
    them.  Holland became concerned that Ban might have a weapon.  He tried to gain
    control over Ban by forcing him out of the bathroom and into the hallway.
    Holland and Ban struggled.  During the struggle Ban hit his head on a
    countertop in the bathroom.

[30]

Ban
    then tried to get away down the hallway.  Another police officer, Krause,
    blocked his way.  Krause delivered two or three knee strikes to Ban to subdue
    him.  Eventually, Holland and Krause forced Ban to the ground and handcuffed
    him.  Ban was injured in the altercation.  He sustained a cut to his forehead, a
    small cut to his ear, and bruises to his back and torso.

[31]

Another
    police officer administered first-aid to Ban, gave him blankets and water, and
    arranged for an ambulance to take him to the hospital.  Ban was treated in the
    hospital; the cut on his forehead required 11 stitches.  Ban testified that his
    injuries caused headaches, abdominal pain, and memory and sleep problems.

[32]

An
    officer with Peel Police prepared a use of force report in connection with
    Bans injuries.  The report was filed as an exhibit at trial.

(i)

Breach of the knock-and-announce rule

[33]

The
    trial judge held that, while the police had a search warrant, they did not
    conduct the search reasonably, contrary to s. 8 of the
Charter
.  He
    held that they effected what he called a dynamic entry  a departure from
    the knock-and-announce rule without any grounds for doing so.  He said:

Particularly, the failure of someone to answer the door within
    60 seconds, when one expects fans to be running is not an exigency that
    justifies a dynamic entry.  The knock-and-announce rule is not a
    knock-and-break-in-the-door-if-no-answer rule.  It means that non-violent
    execution of the warrant must be attempted.

[34]

The
    Crown submits that the trial judge erred in holding that the police did not
    comply with the knock-and-announce rule.  I agree with this submission.

[35]

Unless
    exigent circumstances exist, the police must knock and announce their presence
    before entering a home.  The knock-and-announce rule has been part of our law
    for over 400 years.  The Supreme Court of Canada recently reaffirmed the rule
    in
R. v. Cornell
, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 18:

Except in exigent circumstances, police officers must make an
    announcement before forcing entry into a dwelling house.  In the ordinary case,
    they should give: (i) notice of presence by knocking or ringing the door bell,
    (ii) notice of authority, by identifying themselves as law enforcement officers
    and (iii) notice of purpose, by stating a lawful reason for entry.

[36]

The
    rationales for the rule are well known: the protection of the dignity and
    privacy interests of the occupants of the house, and the enhancement of the
    safety of the police and the public: see
Cornell
, at para. 19.

[37]

In
    this case, there were no exigent circumstances that would justify a departure
    from the knock-and-announce rule.  However, the record shows that the police
    complied with the three components of the rule: they knocked several times, they
    announced who they were, and they stated their reason for being there  to
    execute a search warrant.  This was not disputed at trial, where counsel for Ban
    stated in argument, this is not a lack of knock notice case because there is
    evidence that there was a knock, a notice given and a short period of time and
    then the forced entry: see Transcript of Proceedings, January 19, 2011, at p.
    82.

[38]

The
    trial judge was wrong to say [t]he knock-and-announce rule is not a
    knock-and-break-in-the-door-if-no-answer rule.  That is exactly what the rule
    is.  If the police receive no answer, they are entitled to force entry into a
    home.  This corollary to the knock-and-announce rule traces back to the
    decision in
Semaynes Case
(1604), 5 Co. Rep. 91a, 77 E.R. 194 (K.B.),
    at p. 195:

In all the cases when the King is party, the sheriff (if the
    doors be not open) may break the partys house, either to arrest him, or to do
    other execution of the K.s process, if otherwise he cannot enter.  But before
    he breaks it, he ought to signify the cause of his coming, and to make request
    to open doors.

[39]

The
    Supreme Court affirmed this corollary principle in both
Cornell
and in
    its earlier decision in
Eccles v. Bourque
, [1975] 2 S.C.R. 739.

[40]

I
    accept that there is a subsidiary, but perhaps important, issue arising out of
    the way the police implemented the knock-and-announce rule.  The issue is
    whether they waited long enough before forcing entry into the home.  The
    knock-and-announce rule requires the police to give the occupants of the home a
    reasonable amount of time to answer: see e.g.
R. v. Cao
, 2008 BCSC
    139, 167 C.R.R. (2d) 120.  Whether the 30 to 40 seconds the police waited in
    this case was a reasonable amount of time may have to be considered at the new
    trial.

[41]

The
    trial judge did express concern that the police waited less than one minute
    before entering the home.  That was not, however, the focus of his finding that
    they ignored the law.  Instead, he focused on the polices dynamic entry.  He
    held that the dynamic entry, unless justified, amounts to a breach of the
    knock-and-announce rule.  That holding was an error of law.

[42]

The
    stay imposed by the trial judge flowed from his holding that the Crown had
    failed to justify a departure from the knock-and-announce rule:

The duty to engage in analysis of the need to depart from the
    knock-and-announce rule is not a guideline; it is a prerequisite to the
    lawfulness of the decision.  The need for some basis for such a decision is not
    preferable; it is obligatory.

The obligation on the Crown to lead evidence to justify the
    decision is a prerequisite to a finding by the court, if one is to be made,
    that the departure was necessary.  The police did not know what the law was;
    did not care; and did not comply with it.  An occupant of the house received
    serious, foreseeable injuries.  There is nothing unclear about this case.
    Anything short of a stay would be an expression of approval of the police
    decision to ignore the legal requirements of the execution of the warrant in
    this manner.

[43]

The
    trial judge erred in holding that the Crown was required to justify a departure
    from the rule.  The record shows that the police complied with the three
    components of the rule.

(ii)

Breach of section 7 of the
Charter

[44]

Although
    the trial judge found that the police did not conduct the search reasonably
    because of their dynamic entry to the home, he rested his stay order on a
    breach of s. 7 of the
Charter
.  He held:

While this could be dealt with as a Section 24(2) analysis, it
    is better dealt with by Section 7 and 24(1).  The decision to use dynamic entry
    put the safety of all the occupants at risk.  The injuries to Mr. Ban were
    serious and foreseeable.  The exigency was created by the police.  There was
    not only no basis to use a violent entry but there was an apparent unawareness
    or indifference to the legal prerequisites for so doing.

[45]

Even
    accepting the trial judges finding that Bans injuries were serious and
    foreseeable, that finding does not make out a breach of s. 7 of the
Charter
.
    To show that his s. 7 right to security of the person was violated, Ban had to
    show a substantial interference with his physical or psychological integrity or
    with the integrity of the justice system.  He sought to do so by claiming that
    the police used excessive force in arresting him.  He contended that a police
    officer hit him with a handgun.  The trial judge rejected Bans evidence, but
    then made no finding of fact about what did happen:

While I do not accept the evidence of pistol-whipping, I am not
    getting a reliable account of the circumstances in the infliction of the bodily
    harm on Mr. Ban from the police, and that goes to the issue of good faith.

[46]

Thus,
    the trial judge did not make a finding that Ban was injured because the police
    used excessive force to arrest him.  Instead, the trial judge found only that
    Bans injuries were a foreseeable consequence of an unjustified dynamic entry.

[47]

Excessive
    force may give rise to a breach of s. 7 if it substantially interferes with an
    accuseds security of the person interest.  The use of force that is not
    excessive  even force that gives rise to foreseeable injury  would not likely
    amount to a breach of s. 7.  The police are entitled to use force to make an
    arrest as long as the force used is proportional, reasonable and necessary: see
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206.

[48]

In
    this case, absent a finding that the police used excessive force to arrest Ban,
    I do not see how the trial judge could find a breach of s. 7 of the
Charter
:
    see
R. v. Gangl
, 2011 ABCA 357, 515 A.R. 337.

(iii)

Section 24(1) of the
Charter

[49]

In
    ordering a stay of the charges against Ban for abuse of process, the trial
    judge relied on this courts decision in
R. v. Tran
, 2010 ONCA 471,
    103 O.R. (3d) 131.  He held, correctly, that under s. 24(1) of the
Charter
,
    the court retains discretion to stay proceedings where to do otherwise would
    amount to a judicial condonation of unacceptable practices.  This discretion
    is to be exercised in exceptional circumstances.  It may be exercised even where
    abusive police conduct does not affect trial fairness if the abuse is so
    egregious that the mere fact of going forward in the light of it will be
    offensive.  In those exceptional circumstances, a stay under s. 24(1) is an
    appropriate and just remedy: see
Canada (Minister of Citizenship and
    Immigration) v. Tobiass
, [1997], 3 S.C.R. 391;
R. v.

Regan
.

[50]

Tran
was such a case.  However, the facts pertaining to Ban were far removed from
    those pertaining to Tran.

[51]

Tran
was a case of despicable police brutality.  The trial judge found that the
    police used excessive force, gratuitously beating Tran because he would not make
    a statement after he had voluntarily turned himself in.  The police lied to
    cover up their actions.  They also delayed getting Tran the medical attention
    he needed.  Moreover, the states misconduct did not end there, as the
    offending officers were permitted to assist the Crown in the prosecution of the
    case.  Epstein J.A., who wrote the courts reasons, held that this was one of
    those exceptional or clearest of cases warranting a stay for police misconduct.

[52]

In
    the present case, the police did not use excessive force to arrest Ban.  They
    did not cover up their actions; instead, they reported what had occurred to a
    superior officer and filled out a formal use of force report.  They also arranged
    immediate medical attention for Ban.
Tran
cannot be used to support a
    stay in this case.

[53]

The
    trial judge did not analyze the differences between this case and
Tran
.
    Instead, after referring to
Tran
, he grounded the stay in the original
    entry into the home, which he found to be unlawful.  For convenience I repeat
    this part of his reasons:

The obligation on the Crown to lead evidence to justify the
    decision [to depart from the knock-and-announce rule] is a prerequisite to a
    finding by the court, if one is to be made, that the departure was necessary.
    The police did not know what the law was; did not care; and did not comply with
    it.  An occupant of the house received serious, foreseeable injuries.  There is
    nothing unclear about this case.  Anything short of a stay would be an
    expression of approval of the police decision to ignore the legal requirements
    of the execution of the warrant in this manner.

[54]

I
    have already outlined why the trial judge erred in finding that the police
    departed from the knock-and-announce rule.  But even if they did depart from
    the knock-and-announce rule  by, for example, not waiting long enough before
    forcing entry into the home  that departure would hardly be so egregious that
    it would turn this case into one of those exceptional cases requiring a stay.
    As with Pan, the trial judge erred in principle and exercised his discretion
    unreasonably in staying the charges against Ban.  I would set aside the stay
    and order a new trial for Ban.

(iv)

Other issues

[55]

The
    Crown, quite understandably, raised other concerns about the trial judges
    reasons.  I will deal briefly with three of these concerns.

[56]

First,
    the trial judge relied on his own experience to find that marijuana grow
    operations in the Peel Region did not present a risk of violence:

Whatever may be the case in other jurisdictions, the dozens of
    grow-ops I have dealt with in this jurisdiction by way of pre-trials, pleas,
    trials and preliminary hearings have disclosed no basis whatsoever for a
    generalized concern of a violent response to police in this context.

[57]

I
    agree with the Crown that the trial judges observation amounts to taking
    judicial notice that no risk of violence existed.  A court can take judicial
    notice of a fact in only two circumstances: first, if the fact is so notorious
    and generally accepted that reasonable persons would not debate it; and second,
    if the fact is capable of immediate or accurate demonstration by resort to
    readily accessible sources of undisputed accuracy: see
R. v. Manjra
,
    2009 ONCA 485, 250 O.A.C. 257, at para. 21.  The trial judges observation does
    not meet either criterion for taking judicial notice.

[58]

Second,
    the trial judge discounted virtually all of the police evidence.  I do not find
    it necessary to review his findings because, even accepting them, his stay
    order cannot stand.  However, I should not be taken as agreeing with these
    findings.  As the trial Crown pointed out, during argument the trial judge made
    this telling comment about the officers testimony:

Theyre certainly not going to testify against each other if
    there is any wrong doing and theyre certainly not going to have any memory of
    what occurred if there was wrong doing

This comment may well have affected the trial judges
    assessment of the officers evidence and their credibility.

[59]

Finally,
    although the trial judge stayed the charges against Ban, he stated that if he
    were wrong, there was insufficient evidence of participation to ground a
    conviction".  This statement has no legal effect.  The trial judge did not
    acquit Ban.  He stayed the charges against him.

D.

conclusion

[60]

I would allow the Crowns appeal, set aside the stays of the charges against Pan
  and Ban, and order a new trial for both respondents.

Released:
Sept. 10, 2012                                       John
    Laskin J.A.

JL                                                                     I
    agree K. Feldman J.A.

I
    agree David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Perdomopena, 2012
    ONCA 627

DATE: 20120920

DOCKET: C54835

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Berlin Perdomopena

Respondent

Christopher Webb, for the appellant

Howard L. Krongold, for the respondent

Heard: September 19, 2012

On appeal from the sentence imposed by Justice L.
    Maisonneuve of the Ontario Court of Justice dated December 7, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The Crown appeals the 19 months sentence imposed on the respondent,
    principally on the ground that the sentence is not proportional to the gravity
    of the harm, and therefore is demonstrably unfit.

[2]

We do not agree with the Crowns position. The trial judge gave careful
    and thoughtful reasons for the sentence she imposed. She considered all of the
    relevant aggravating and mitigating factors. We accept that the ultimate
    sentence may be considered lenient, but we are not persuaded that it amounts to
    a marked departure from an acceptable range.

[3]

Accordingly, although leave to appeal sentence is granted, 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. R.
    H., 2012 ONCA 593

DATE: 20120912

DOCKET: C55067

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

R. H.

Respondent

Lisa Henderson, for the applicant/appellant

Peter Thorning, for the respondent

Heard and released orally: September 6, 2012

On appeal from the sentence imposed on January 27, 2012
    by Justice Peter Hryn of the Ontario Court of Justice.

ENDORSEMENT

[1]

The Attorney General seeks leave to appeal and, if leave be granted,
    appeals from a net sentence of imprisonment for 10 months followed by probation
    for 18 months imposed on the respondent on convictions of a single count of
    possession of child pornography and of two counts each of making child
    pornography available and breach of probation.

[2]

The respondent, a 28 year old recidivist, who was fully co-operative with
    investigators from the moment of his arrest, pleaded guilty before a judge of
    the Ontario Court of Justice about eight months after his arrest. Three months
    later, the judge imposed a global sentence of imprisonment of 27 months on the
    respondent. To achieve the net sentence he ultimately imposed, the judge
    awarded the respondent a credit of 17 months for the 11 and one-half months he
    spent in pre-sentence custody.

[3]

Before the sentencing judge, the Crown sought a penitentiary sentence of
    five years and the respondents counsel urged an upper reformatory or very low
    penitentiary sentence, less enhanced credit for time spent in pre-sentence
    custody.

[4]

The appellant submits that the trial judge made three errors:

i.

that he improperly minimized the overall gravity of the respondents
    offences;

ii.

that he unduly emphasized what he regarded as mitigating factors; and

iii.

that in the end he imposed a global sentence that was demonstrably
    unfit.

[5]

The sentencing judge recognized that the paramount sentencing objectives
    at work in child pornography cases are denunciation and deterrence.  He also
    kept in mind the respondents rehabilitative prospects and the principle of
    restraint, since the sentence he intended to impose would be the respondents
    first carceral sentence.

[6]

The sentencing judge described at some length in his reasons what he
    regarded as the aggravating factors on sentence. Reading this portion of his
    reasons as a whole, we simply cannot say, as the appellant invites us to do,
    that this experienced judge failed to appreciate or improperly minimized the
    overall gravity of the respondents series of offences.

[7]

In a similar way, the sentencing judge enumerated what he considered
    mitigating factors. We do not agree with the appellant that the trial judge
    considered irrelevant factors in mitigation, or that he assigned
    disproportionate weight to individual factors or the mitigating factors taken
    as a whole.

[8]

In the fact-sensitive world of sentencing decisions, we see no basis
    upon which to interfere with this sentence, the custodial portion of which has
    already been served.

[9]

In the result, although we would grant leave to appeal, we would dismiss
    the appeal from sentence.

J. C. MacPherson J.A.

Robert Armstrong J.A.

David Watt J.A.