COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Balogun-Jubril, 2016 ONCA
    199

DATE: 20160309

DOCKET: C59594

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jaffar Balogun-Jubril

Appellant

Michael W. Caroline, for the appellant

Christopher Chorney, for the respondent

Heard: February 12, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated September 15, 2014 by Justice Kenneth L. Campbell of the
    Superior Court of Justice, allowing the appeal from the acquittals entered on June
    20, 2013 by Justice Cathy Mocha of the Ontario Court of Justice.

Juriansz J.A.:

[1]

The appellant seeks leave to appeal his convictions of having care or control
    of a motor vehicle while impaired and having a blood alcohol level that
    exceeded 80 mg of alcohol in 100 mL of blood, pursuant to ss. 253(1)(a) and (b)
    of the
Criminal Code,
R.C.S. 1985, c. C-46. He was acquitted at trial.
    The Crown appealed and the appeal judge found him guilty of both offences.

A.

Background

[2]

On July 29, 2012, at about 5:20 in the morning, the appellant was found
    in a deep sleep in the drivers seat of his car, which was stopped in a driving
    lane of the exit ramp from Highway 409 at Martin Grove Road. The engine was off
    and the vehicles transmission was in park, but the key was in the ignition.
    The emergency lights of the vehicle were flashing and there was a Ministry of Transportation
    truck parked behind the appellants vehicle. The appellant showed significant
    signs of impairment and was taken to the police station. He registered
    blood-alcohol readings of 150 and 160 at 6:41 a.m. and 7:27 a.m.

[3]

The appellant testified that his car ceased to operate at about 2:45 a.m.
    as he was driving. A mechanic testified that the appellants car was completely
    inoperable because it had leaked oil and the engine had seized.

[4]

The trial judge found that the appellant was not operating a vehicle
    while impaired because there was no evidence of his condition at the time the
    car ceased operating around 2:45 a.m. The trial judge then considered whether
    the appellant had care or control of the vehicle while impaired or with a
    blood alcohol reading of over .08. The trial judge concluded that the appellant
    had not engaged in an intentional course of conduct that had created a
    realistic risk of danger. She found him not guilty.

[5]

The appeal judge found that the trial judge committed a palpable and
    overriding factual error in concluding that there was no realistic risk of
    danger to persons or property when the police arrived on the scene. Noting the
    low threshold of establishing that the conduct of the accused in relation to
    his motor vehicle created a realistic risk of danger to public safety, the
    appeal judge set aside the trial judges decision and registered convictions on
    both counts against the appellant.

B.

Issues

[6]

The appellant proposes to advance two arguments on appeal. First, he would
    argue that the appeal judge was not entitled to interfere with the trial
    judges finding that there was no realistic risk of danger to the public, as
    deference is owed to findings of fact. In
R. v. Boudreault
, 2012 SCC
    56, [2012] 3 S.C.R. 157, at para. 11, the Supreme Court of Canada makes clear
    that whether a realistic risk is created is a question of fact. Second, he would
    argue that the risk identified by the appeal judge is properly characterized as
    theoretical and not as realistic.

C.

leave To Appeal To This court

[7]

As s. 839 of the
Criminal Code
provides, the appellant can
    appeal to this court only with leave and only on a ground that involves a
    question of law alone.

[8]

There is no right to appeal factual findings or questions of mixed fact
    and law. Further, even where the appealing party identifies a question of law, leave
    is not automatic: not all questions of law merit a second appeal:
R. v.
    R.R.
(2008), 90 O.R. (3d) 641,

at para. 24. The significance of
    the issues raised to the general administration of criminal justice, and the
    merits of the proposed grounds of appeal must also be considered: para. 37.

D.

the appellants proposed grounds of appeal

(1)

Standard of review before the appeal judge

[9]

Section 813(b)(i) of the
Criminal Code
allows the Crown to
    appeal the trial judges decision to the summary conviction appeal court upon
    questions of law alone, questions of mixed fact and law, or questions of fact:
R.
    v. Labadie,
2011 ONCA 227, 275 C.C.C. (3d) 75, at para. 50. Despite the
    breadth of the statutory appeal, deference is owed to the findings of fact of a
    trial judge. Here, the appeal judge relied on errors in the trial judges
    analysis in interfering with her conclusion the appellant had not created a
    realistic risk of danger.

[10]

The
    appeal judge concluded that the trial judge focused, wrongly, on the inoperable
    nature of the respondent's vehicle. I agree. The trial judge seems to have
    proceeded on the basis that an inoperable vehicle could only cause a realistic
    risk of danger by somehow being placed in motion other than under its own
    power. Indeed, while recognizing that the Supreme Courts reasons in
Boudreault
left open the possibility that an inoperable motor vehicle could create a realistic
    risk of danger, she conceived this happening by releas[ing] the parking
    brake, trying to roll the vehicle or some situation such as that. She
    concluded that was not what she was dealing with in this particular case. She
    accepted that the appellant was simply sitting in an inoperable motor vehicle
    waiting for a tow truck to arrive.

[11]

This
    is not a correct reading of
Boudreault
. The Court, at para. 42,
    clearly contemplates that a stationary vehicle may endanger persons or property
    through negligence, bad judgment or otherwise. The appeal judge correctly
    noted that this court has taken an approach consistent with this reading of
Boudreault
in
R. v. Vansickle
, [1990] O.J. No. 3235 (C.A.), affg [1988] O.J. No.
    2935 (Dist. Ct.),
R. v. Wren
(2000), 47 O.R. (3d) 544 (C.A.), leave to
    appeal refused, [2000] S.C.C.A. No. 235, and
R. v. Smits
, 2012 ONCA
    524, 294 O.A.C. 355.

[12]

Moreover,
    in reaching her conclusion there was no realistic risk, the trial judge found
    the appellant had done all that could be done to reduce the risk. That is not
    the pertinent inquiry. The question the court must determine is whether any
    realistic risk of danger was created.

[13]

Given
    the incorrect analysis of the trial judge, the appeal judge was entitled to
    interfere with her conclusion and to find that the risk was realistic, and not
    merely theoretical. On the facts found by the trial judge, I would conclude
    that he was correct in doing so.

[14]

While
    the application of the standard of review is a question of law, this proposed argument
    has no merit and cannot provide a basis for leave to appeal.

(2)

Proper characterization of the risk

[15]

The
    main focus of the appellants oral argument was that the identified risk should
    be characterized as theoretical, and not realistic.

[16]

This
    is not an argument the appellant could advance on appeal. The appellants right
    to seek leave to appeal is restricted to questions of law. The appellants
    argument that the appeal judge was wrong to find the risk of danger was
    realistic and not merely theoretical does not raise a pure question of law.

E.

Conclusion

[17]

I
    would refuse the application for leave to appeal to this court.

Released: March 9, 2016 (EAC)

R.G.
    Juriansz J.A.

I
    agree E.A. Cronk J.A.

I
    agree L.B. Roberts J.A.


WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boone, 2016 ONCA 227

DATE: 20160329

DOCKET: C59417

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Paul Boone

Appellant

Jonathan Shime and Benjamin Elzinga Cheng, for the
    appellant

Stacey Young, for the respondent

Heard: February 24, 2016

On appeal from the convictions entered on December 19,
    2012 by Justice D.J. Gordon of the Superior Court of Justice, sitting with a
    jury.

Sharpe J.A.:

[1]

The appellant engaged in unprotected anal intercourse without disclosing
    the fact that he was HIV-positive. He appeals his conviction on two counts of
    aggravated sexual assault.

[2]

The appellant had anal intercourse with one of the complainants and
    later he and Bowland, his co-accused, also HIV-positive, met the two male
    complainants for a sexual encounter. The group of four engaged in unprotected
    sex, including anal penetration. Neither the appellant nor Bowland disclosed
    their HIV-positive status to the complainants, but the appellant later made
    disclosure to one of the complainants. The complainants immediately sought
    medical attention. Neither contracted HIV.

[3]

The appellant raises several grounds of appeal. The principal ground is
    that the trial judge erred by failing to instruct the jury that if it found
    that the complainants were reckless or prepared to assume the risk of engaging
    in unprotected sex with a partner whose status is unknown, they must acquit.

[4]

For the following reasons, I would dismiss the appeal.

A.

FACTS

[5]

The central facts are not in dispute and may be outlined briefly.

[6]

The appellant and one of the complainants, C.S., had sex together in
    September 2009. At that time, the appellant had not tested positive for HIV and
    he told C.S. that he was clean. However, the appellant tested positive for
    HIV in October 2009 and there was no question that he was HIV-positive when he
    encountered C.S. again in March 2010.

[7]

On March 28, 2010, the appellant engaged in unprotected anal intercourse
    with C.S. in a motel room. The two agreed to meet later that day with Bowland,
    the appellants friend, and K.D., the second complainant, at K.D.s apartment.
    They engaged in a variety of sexual activities, including unprotected anal
    penetration.

[8]

Shortly after that encounter, the appellant sent C.S. a text message
    stating that both he and the co-accused were HIV-positive. C.S. informed K.D.
    The complainants expressed their shock and concern and both went to the
    hospital that same night. They were given anti-viral treatment and took the
    drugs for four weeks. Neither man tested positive for HIV.

[9]

Neither the appellant nor Bowland testified at trial but they conceded
    that they had engaged in anal intercourse with the complainants, that they did
    not disclose their HIV-positive status, and that neither complainant knew that
    the appellant and the co-accused were HIV-positive.

[10]

The
    complainants testified that they would not have engaged in sexual activity with
    the appellant and Bowland had they known that both were HIV-positive. The
    appellant and Bowland attacked the credibility of the complainants and urged
    the jury not to accept their assertion that they would not have engaged in
    sexual activity with the appellant and Bowland had they known that they were
    HIV-positive.

[11]

The
    appellant and his co-accused sought and obtained, over the objection of the
    Crown, a pre-trial ruling pursuant to s. 276 of the
Criminal Code
, R.S.C. 1985, c. C-46,

permitting
    them to cross-examine both complainants on certain prior sexual conduct: see
R.
    v. Boone and Bowland
, 2012 ONSC 441. C.S. and K.D. were cross-examined and
    admitted to regularly having unprotected sex with each other, and to previously
    engaging in unprotected group sex with other men whose HIV status they did not
    know. There was also evidence that C.S. and K.D. were very aware of the risks
    posed by having sex with an HIV-positive partner and that they had themselves
    regularly tested for the disease.

[12]

The
    appellant argued at trial that, as the complainants were careless in their
    sexual lives and prepared to have sex with other men whose HIV statuses were
    unknown, doubt was cast on the credibility of their assertion that they would
    not have had sex with him, had they known of his HIV-positive status. The
    appellant also relied on the fact that C.S. himself had failed to disclose that
    he had syphilis before they had sex, indicating a disregard for the risks of
    engaging in sex with others who might be infected and knowledge that partners
    may be dishonest about their sexual health.

B.

ISSUES

[13]

The
    appellant raises the following four issues:

(1)

Did the trial judge err by
    failing to charge the jury that, if it found a possibility that the
    complainants were reckless or prepared to assume the risks of unprotected sex
    with someone whose HIV status is unknown, the jury must acquit?

(2)

Did the trial judge err in
    failing to give a
Vetrovec
warning in relation to the two complainants?

(3)

Did the trial judge make a
Miller
error?

(4)

Did the trial judge err by
    failing to warn the jury that the appellants text messages should not be used
    as evidence of bad character to punish the appellant?

[14]

The
    respondent Crown submits that if any error is found on the above grounds of
    appeal, this court should apply the
curative proviso
. The respondent
    also submits that the trial judge erred by granting the appellants s. 276
    application which permitted the defence to adduce evidence of the complainants
    prior sexual conduct in order to assess whether or not the complainants would
    have consented to having unprotected sexual intercourse had they known that the
    appellant was HIV-positive.

C.

ANALYSIS

(1)

Did the trial judge err by failing to charge the jury that, if it found
    a possibility that the complainants were reckless or prepared to assume the
    risks of unprotected sex with someone whose HIV status is unknown, the jury must
    acquit?

[15]

In
R. v. Cuerrier
, [1998] 2 S.C.R. 371, the Supreme Court of Canada held
    that the failure to disclose a condition that poses a significant risk of
    serious bodily harm amounts to fraud that vitiates consent to sex. Writing for
    the majority, Cory J. explained, at para. 127:

Without disclosure of
    HIV status there cannot be a true consent. The consent cannot simply be to
    have sexual intercourse. Rather it must be consent to have intercourse
    with a partner who is HIV‑positive. True consent cannot be given if
    there has not been a disclosure by the accused of his HIV‑positive
    status. A consent that is not based upon knowledge of the significant
    relevant factors is not a valid consent.

[16]

Cory
    J. added, at para. 130:

In situations such as that presented in this case
    it must be emphasized that the Crown will still be required to prove beyond a
    reasonable doubt that the complainant would have refused to engage in
    unprotected sex with the accused if she had been advised that he was HIV-positive. As
    unlikely as that may appear it remains a real possibility. In the words of
    other decisions it remains a live issue.

[17]

R.
    v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584, affirmed the
Cuerrier
test and explained the element of significant risk of serious bodily harm in cases
    involving an HIV-positive accused with a low viral load.

[18]

In
    the case at bar, the Crown tendered expert evidence as to the risk of HIV transmission
    through unprotected receptive anal intercourse. No issue was raised in this
    case as to the sufficiency of the appellants viral load in relation to that
    risk.

[19]

As
    the appellant conceded that he had engaged in unprotected anal intercourse with
    the complainants, that he was HIV-positive at the time, and that he had not
    disclosed his HIV-positive status, the central issue at trial was whether the
    Crown had proved beyond a reasonable doubt that the complainants would have
    refused to engage in unprotected sex with him if they had been advised that he
    was HIV-positive. On that issue that the appellants trial counsel adduced
    evidence of the complainants past sexual behaviour to support an assertion
    that they were generally reckless and/or prepared to assume the risks of
    unprotected sex.

(a)

The proposed jury instruction

[20]

On
    appeal, the appellant argues that the trial judge erred by failing to instruct
    the jury properly on this issue. In his oral submission, Mr. Shime provided us
    with the following instruction that he submits the trial judge ought to have
    given:

If these factors [engaging in sex without knowing or asking
    about the health status of partners] lead you to believe that C.S. and K.D. may
    have been reckless or prepared to assume the risks that result from unprotected
    sex with someone whose status is unknown, then you must acquit as that means
    there exists a doubt for you to know that C.S. and K.D. would not have
    consented had they known.

[21]

In
    my view, this submission must be rejected.

[22]

The
    law imposed a positive duty on the appellant to disclose his HIV-positive
    status to the complainants before engaging in sex with them. The issue for the
    jury to decide was whether the Crown had proved beyond a reasonable doubt that
    the complainants would not have consented had they known of the appellants
    HIV-positive status, not whether they were prepared to risk having unprotected
    sex with someone whose HIV status they did not know. An instruction along the
    lines proposed by the appellant would be inconsistent with the law as laid down
    in
Cuerrier
and
Mabior
as it would

effectively remove
    the accuseds duty to disclose if the accused was having sex with a partner who
    had engaged in risky sex in the past. This would transform the accuseds duty
    to disclose into a duty on the complainant to inquire. It would, as the Crown
    contends, effectively limit criminal liability to situations where the
    complainant inquired about an accuseds HIV status but the accused was
    deceptive.

[23]

Nor
    am I convinced that any alleged carelessness or recklessness of the
    complainants was relevant to the issue that confronted the jury, namely,
    whether C.S. would have consented to have sex with the appellant had he known
    of his status. As I have stated, it is one thing to be careless or reckless
    about whether a risk exists and quite another to assume a known risk.

(b)

Section 276

[24]

This
    brings me to the s. 276 issue. It was not open to the Crown to appeal the trial
    judges s. 276 order since the appellant was convicted but, as I have noted,
    the Crown invited us to find that he erred in making that order. I would not
    ordinarily be inclined to accept such an invitation but I find it appropriate
    to comment on the s. 276 order for two reasons. First and foremost, the
    appellants submission as to the adequacy of the jury charge directly raises
    the relevance of the complainants prior sexual conduct, an issue that is also
    engaged under s. 276. Second, there are conflicting trial level decisions on the
    s. 276 issue and it is appropriate for this court to attempt to clarify the law.

[25]

Section
    276(1) of the
Criminal Code
provides that evidence of the
    complainants prior sexual activity is not admissible to support an inference
    that, by reason of the sexual nature of that activity, the complainant: (a) is
    more likely to have consented; or (b) is less worthy of belief. These
    prohibited inferences are known as the twin myths.

[26]

If
    the proposed evidence does not run afoul of this rule, an application judge can
    authorize admission of the evidence pursuant to s. 276(2) provided three
    conditions are met: it relates to specific instances of sexual activity; it is
    relevant to an issue at trial; and it has significant probative value not
    substantially outweighed by the danger of prejudice to the proper
    administration of justice, having regard to the factors outlined in s. 276(3).

(c)

The s. 276 pre-trial ruling

[27]

In
    his s. 276 ruling, the trial judge concluded that the proposed evidence suggested
    a pattern of casual sexual acts and was relevant to the issue of fraud
    vitiating consent. He found that the proposed evidence was capable of raising a
    reasonable doubt as to whether the complainants would not have consented to
    unprotected sex with the appellant had they known the appellant was
    HIV-positive, an essential element of the offence.

[28]

He
    summarized his reasons for granting the defence application as follows:

[61] Neither
    the gay lifestyle nor the sexual activity of the complainants are of interest
    in this trial. Rather, the focus is on risk associated with their
    conduct.  The defence refers to this as a non-sexual aspect. I
    agree. It is very specific.

[62] Given
    the evidentiary burden of the prosecution on the essential elements of the
    charges, the evidence the defence seeks to introduce is highly relevant and
    probative. The pattern of sexual encounters with strangers, as previously
    discussed, addresses the issues in this case and specifically the credibility
    of the complainants.

[63] The
    jury is entitled and, in my view, must hear this evidence so that a just
    verdict is rendered. As stated, an appropriate limiting instruction will
    focus the jury on the use of the evidence and, thereby, prevent the twin myths
    arising.

[64] Prejudice
    to the administration of justice would occur if this evidence was excluded.

[29]

With
    respect to the factors listed for consideration in s. 276(3), the trial judge
    found as follows, at para. 46:

a)
    the evidence pertains to the issues in dispute and is necessary so that the
    jury may render a just verdict;

b)
    the evidence specifically addresses risk and, as identified in the caselaw, is
    not concerned with the sexual component of the activity;

c)
    it follows, then, that the jury can be directed to focus on the issues and
    purpose of the evidence so that there is no concern as to the twin myths, bias
    or discriminatory belief;

d)
    similarly, sentiments as to prejudice, sympathy or hostility can be avoided;

e)
    the complainants testified at some length as to intimate sexual acts and
    communicate in like manner, hence the concern as to their personal dignity and
    privacy is not an overriding concern;

f)
    similarly, the complainants right to personal security and the full protection
    and benefit of the law is not impacted.

[30]

The
    respondent concedes that the appellant was entitled to a s. 276 order in
    relation to an inconsistent statement by K.D. as to his past sexual practice,
    but argues that otherwise, the order should not have been made.

(d)

The s. 276 jurisprudence in HIV non-disclosure cases

[31]

Like
    the trial judge in this instance, some other Ontario trial judges have found
    that a complainants history of unprotected sexual intercourse in the past is
    relevant to the issue of whether the complainant would knowingly consent to
    sexual intercourse if advised of this sexual partners HIV positive status. In
R.
    v. Pottelberg
(14 October 2010), London, 10628 (Ont. S.C.), Bryant J. came
    to a similar conclusion about the relevance of prior sexual conduct, as did Wong
    J. in
R. v. Poisson
(23 June 2015), Toronto (Ont. C.J.).

[32]

In
R. v. H.(J.)
, 2012 ONCJ 708, at para. 32 (a case dealing with
    non-disclosure of herpes simplex type 2), Green J. concluded that the defence
    proposal to call evidence of the complainants sexual hygiene behaviour and
    practices with others was not for the purpose of showing that the complainant
    was more likely to have consented to the sexual act underlying the charges and
    that it was probative of the issue whether the complainant would have consented
    had she been aware of her partners positive viral status:

Read literally, s. 276(1)(a) only renders evidence of the
    complainants prior sexual conduct inadmissible if it is being advanced to support
    an inference that,
by reason of the sexual nature of that activity,
the
    complainant is more likely to have consented to the sexual act at issue before
    the court. [Emphasis in original.]

[33]

However,
    three Superior Court judges have come to a different conclusion on this issue.
    In
R. v. Clarke
, 2013 ONSC 3232, another case in which the accused did
    not disclose his HIV-positive status, the complainant and the accused were
    involved in a sexual relationship for over two years. The Crown did not dispute
    the admissibility of evidence that the complainant continued to have sex with
    the accused after learning that they were both HIV-positive. The defence
    proposed to call additional evidence to establish a pattern of behaviour of
    risk acceptance on the part of the complainant. This included various incidents
    of engaging in unprotected sex with a number of individuals whose HIV status
    was unknown to the complainant. Skarica J. refused to make a s. 276 order on
    the ground that it did not follow that a person prepared to accept some form of
    unknown risk is also prepared to accept risk that is virtually certain to cause
    a life-threatening disease.

[34]

In
R. v. Ralph
, 2014 ONSC 1072, the accused was charged with aggravated
    sexual assault for HIV non-disclosure. Defence counsel sought to question the
    complainants about their sexual partners before and during their relationship
    with the accused, including the nature of the sexual activity, the use of condoms,
    if any, and the HIV status of those partners to counter the complainants claims
    that they would not have consented had they known the accuseds HIV-positive
    status. Spies J. considered the conflicting decisions in
Boone and Bowland
and
Clarke
. She preferred the reasoning in
Clarke
, concluding
    at para. 24, that apart from one question, questions about risky sexual
    behaviour were not relevant. She analogized the situation to people who skydive
    despite the risk of injury or death. If told that their parachute would
    malfunction and likely cause death, a person would not likely accept that risk.
    The fact that he or she had skydived before would not be relevant. (An inmate
    appeal from conviction and sentence on other grounds was dismissed by this
    court:
R. v. Ralph
(11 February 2016), Kingston, 59024 (C.A.)).

[35]

The
    trial judge did, however, allow the following question, which in her view, did
    not involve the prohibited inferences:

Before you knew you were HIV positive, had you ever
    engaged in sexual intercourse; either vaginal or anal or oral sex with someone
    that you
knew or believed to be HIV positive?

[36]

In
R. v. W.H.,
2015 ONSC 3087, also an aggravated sexual assault charge for
    HIV non-disclosure, Morgan J. followed
Clarke
and
Ralph
and
    refused a s. 276 application to introduce evidence of prior sexual conduct
    indicating a tolerance for risk. At para. 5, the trial judge referred to Spies
    J.s comments in
Ralph
, at para. 11, citing
R. v. Darrach
(1998), 122 C.C.C. (3d) 225 (Ont. C.A.), at para. 35:

The rationale for subsection 276(1) is to protect against
    prohibited inferences, namely the 'twin myths' that a sexually promiscuous
    woman is less worthy of belief, and that a sexually permissive woman is more
    likely to have consented to the sexual activity that forms the basis of the
    allegation because of her sexual history.[]

Morgan J. continued:

Putting it like this highlights how close the defenses
    proposed line of questioning is to the prohibited line of questioning. If we
    substitute the phrase risk-taking for promiscuous, we get to precisely the
    point the defense hopes to make: that a sexually risk-taking woman is more
    likely to have consented to the (high risk) sexual activity that forms the
    basis of the allegation because of her sexual history.

(e)

Evidence of prior sexual conduct is generally not relevant to the issue
    whether a complainant would have knowingly consented to unprotected sex with an
    HIV-positive accused

[37]

As
    Morgan J. put it in
W.H.
, at para. 10, the twin myths are prohibited
    not only as a matter of social policy but also as a matter of false logic. There
    is a material difference between accepting an unknown risk and accepting a
    known risk. Even if the complainants were reckless in their sexual behaviour,
    whether in the past or at the time of their sexual encounter with the
    appellant, this has no bearing on the issue whether they would have consented
    had they known of the appellants HIV-positive status.

[38]

A
    decision to engage in sexual activity is fraught with many risks among which
    the most serious is the risk of contracting a life-threatening condition. The
    risk that an individual is prepared to assume is highly dependent upon the
    circumstances. In my view, evidence of a complainants general disposition to
    expose himself to an unknown risk (i.e. by having casual unprotected sex) is
    simply not probative of whether or not a complainant would be willing to accept
    a serious known risk.

[39]

Moreover,
    the nature of the risk of unprotected sex with an HIV positive partner goes
    beyond the risk of bodily harm. An infected person must assume the legal
    obligation to disclose HIV status to all sexual partners and thereby faces
    consequent restrictions on future relationships.

[40]

As
Cuerrier
and
Mabior
hold, by imposing on one sexual partner a
    duty to disclose a condition that poses a serious risk to another, the law aims
    to vindicate and to protect the autonomy and dignity of the latter. The modern
    law of sexual assault respects each sexual partner as an autonomous, equal and
    free person:
Mabior
,
at para. 45. An individual is, as a matter of law, entitled to know that a
    significant risk of serious bodily harm exists so that he or she can take that
    risk into account before deciding whether to engage in sexual activity. Past
    carelessness or recklessness about an unknown but
possible
risk has no bearing upon
    whether an individual is to be believed when he asserts that he would not have
    assumed a
known
risk.

[41]

In
    both
Clarke
and
Ralph
, it was suggested that the risk posed
    by unprotected sex with an HIV-positive partner was a virtual certainty. The
    evidence in this case placed the risk well below certain infection. However, I
    find the basic reasoning in those cases and
W.H.
to be sound.

[42]

There
    may be cases where evidence that a complainant previously consented to
    unprotected sex
knowing
his or her partner to be HIV-positive may be
sufficiently
relevant to the determination of whether the complainant consented to the same
    risk with the accused. In my view, however, such cases will be rare. The trial judge
    must be satisfied that admission of the evidence would not invite the
    prohibited twin myth inferences. There are many factors, some rational and
    others not, that influence an individuals decision to give or to withhold
    consent to sexual relations in any particular situation. It does not
    automatically follow from a decision to consent to unprotected sex with one
    partner known to be HIV-positive that consent to unprotected sex with a
    different partner would be given in different circumstances.

[43]

The
    appellant argues that an exploration of the complainants carelessness or
    recklessness was the only way he could raise the defence that they would have
    consented had they known of his HIV-positive status.

[44]

Although
    it may be difficult for an accused to raise a reasonable doubt on this issue,
    that difficulty flows from the law. As Cory J. stated in
Cuerrier
when
    explaining this element of the offence, it is unlikely but possible that
    consent would have been given had the risk been known. There are many cases,
    among them sexual assault where consent is at issue, in which the accused is
    faced with incriminating evidence from a witness that is difficult to
    challenge. Such difficulties do not justify changing, bending or distorting the
    law to make it easier for the accused to raise a reasonable doubt. Nor do they
    justify admitting evidence that is not logically probative of the issue. Moreover,
    as this case demonstrates, even if it is difficult for an accused to directly
    challenge a complainants statement had I known I would not have consented,
    it is always open to an accused to challenge the complainants credibility in
    other ways by exposing prior inconsistent statements and general lack of
    veracity. In this case, the defence mounted a significant attack on credibility
    by using C.S.s failure to disclose his syphilis diagnosis, the inconsistent
    statements related to the criminal record and group sexual activity.

[45]

In
    this case, the pertinent s. 276(3) factors favoured excluding the evidence. The
    evidence had little if any relevance to the issue before the jury and the
    interests of justice, including the right of the accused to make a full answer
    and defence did not favour admitting it: s. 276(3)(a). There was no reasonable
    prospect that the evidence [would] assist in arriving at a just determination
    in the case: s. 276(3)(c). Allowing the defence to probe the complainants
    prior sexual behaviour would discourage the reporting of sexual assaults and
    would potential[ly cause] prejudice to the complainants personal dignity and
    right of privacy: ss. 276(3)(b) and (f).

[46]

I
    conclude, accordingly, that the trial judge erred in making a s. 276 order in
    the circumstances of this case. However, that error inured to the benefit of
    the appellant and the trial judge did not err by failing to instruct the jury
    in the manner proposed by the appellant.

(2)

Did the trial judge err by failing to give a
Vetrovec

warning
    in relation to the two complainants?

[47]

At
    trial, the appellant and Bowland mounted a concerted attack on the credibility
    of the complainants based on prior inconsistent statements and collusion. C.S.
    had lied at the preliminary inquiry about his criminal record. K.D. had lied at
    the preliminary inquiry about his involvement in group sex. They had destroyed
    relevant text messages and they admitted discussing their evidence before and
    during the trial.

[48]

The
    appellant submits that, as C.S. and K.D. were essential witnesses for the
    Crown, the trial judge was required to give a full
Vetrovec
warning,
    cautioning the jury that it would be dangerous to convict unless their version
    of events was supported by other evidence: see
Vetrovec v. The Queen
,
    [1982] 1 S.C.R. 811.

[49]

I
    disagree.

[50]

As
    the Crown points out, despite the problems with their evidence, the
    complainants did not bear the hallmarks of classic
Vetrovec
witnesses.
    They were not jailhouse informants, accomplices, nor did they stand to benefit
    in any way from their testimony. The frailties of their evidence were apparent.
    Counsel addressed those frailties in their closing submissions as did the trial
    judge in his charge to the jury. The trial judge also specifically instructed
    the jury on C.S.s criminal record, the prior inconsistent statements of both
    complainants, and collusion. He highlighted the need to analyze their evidence
    carefully.

[51]

A
    trial judge has a discretion whether to give
Vetrovec
warning and as
    to the nature and extent of the warning. The exercise of that discretion is
    entitled to deference and should be given wide latitude on appeal:
R. v.
    Van Every
, 2016 ONCA 87, at para. 73;
R. v. Bevan
, [1993] 2
    S.C.R. 599, at p. 614;
R. v. Brooks
, [2000] 1 S.C.R. 237, at paras.
    1-2 and 24. In my view, the trial judge did not exceed the limits of that
    discretion in the circumstances of this case.

[52]

A
Vetrovec
caution is not made mandatory simply because the
    complainants evidence was essential to the Crowns case:
R. v. A.W.B.
,
    2015 ONCA 185, 322 C.C.C. (3d) 130, at para. 42;
R. v. Carroll
, 2014 ONCA 2, 304 C.C.C. (3d) 252, at
    para. 74, leave to appeal refused, [2014] S.C.C.A. No. 193.

[53]

In
    his charge, the trial judge canvassed with the jury the basis for the attack on
    the credibility of the complainants. The trial judge held a pre-charge
    conference to afford counsel the opportunity to comment on his proposed charge.
    The appellants trial counsel did not object to the manner in which the trial
    judge proposed to deal with the evidence of the complainants nor did he request
    a
Vetrovec
warning. Although not fatal on its own, the absence of any
    objection leads to an inference that the language employed by the trial judge
    was appropriate from the perspective of the accused:
R. v. Khela
, 2009
    SCC 4, [2009] 1 S.C.R. 104, at paras. 49-50;
Brooks
, at paras. 18-19;
R. v. Jacquard
, [1997] 1 S.C.R. 314, at p. 339.

(3)

Did the trial judge make a
Miller

error?

[54]

The
    appellant submits that in three separate passages in his jury charge, the trial
    judge instructed the jury that it should base its verdict on evidence it
    accepted. This, says the appellant, confined the jurys attention to the
    evidence it accepted and precluded it from considering all the evidence as a
    whole in its deliberation, contrary to the direction in
R. v. Miller
(1991), 5 O.R. (3d) 678 (C.A.).

[55]

All
    three impugned passages were taken directly from
Watts Manual of Criminal
    Justice Instructions
, 2d ed. (Toronto:
    Carswell, 2015)
.
The appellants trial counsel raised no
    objection to them. I do not agree that they amounted to a direction to examine
    the evidence in two separate stages or to consider the evidence in a piecemeal
    fashion. When explaining reasonable doubt, the trial judge properly instructed
    the jury to consider all the evidence and, in the
W.D
. portion of
    the charge, that the appellant was entitled to an acquittal if evidence the
    jury did not accept left it with a reasonable doubt. When the charge is read as
    a whole, there is no danger that the impugned comments could have skewed the
    jurys full and proper consideration of all the evidence when concluding that
    the Crown had proved its case beyond a reasonable doubt.

(4)

Did the trial judge err by failing to warn the jury that the appellants
    text messages should not be used as evidence of bad character to punish the
    appellant?

[56]

The
    Crown tendered a series of text messages from the appellant including one in
    which he expressed a desire to infect others with HIV. As the appellant had
    conceded that he was HIV-positive and that he had not disclosed his status, his
    trial counsel submitted to the jury that this evidence was irrelevant. The
    Crown argued that the text messages showed the appellants dishonest purpose.
    The trial judge did not refer to the text messages in his charge.

[57]

The
    appellant submits that the trial judge erred by failing to warn the jury that
    the text messages were of no assistance on the critical issue and that the jury
    should not use the text messages as evidence of bad character to punish the
    appellant.

[58]

In
    my view, it would have been preferable had the trial judge given the jury a
    limiting instruction on the use it could make of the text messages.

[59]

However,
    no such instruction to the jury was requested by the appellants trial counsel
    and I am not persuaded that, in the context of this case, the trial judges
    failure to give a specific cautionary instruction on the text messages amounted
    to an error of law that affected the fairness of this trial.

D.

Disposition

[60]

For
    these reasons, I would dismiss the appeal.

Released: March 29, 2016

Robert J. Sharpe
    J.A.

I agree M.L. Benotto
    J.A.

I agree Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clouthier, 2016 ONCA 197

DATE: 20160309

DOCKET: C60410 & C60970

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Thomas Clouthier
[1]

Respondent

Hannah Freeman, for the appellant

Sean J. May, for the respondent

Heard:  February 3, 2016

On appeal from the sentences imposed on April 7, 2015 and
    on August 13, 2015 by Justice Ann Alder of the Ontario Court of Justice.

Watt J.A.:

[1]

Some drinks. Three accidents. Flight from the scene. A first
    intermittent sentence, imposed and served. A few months later, a second
    intermittent sentence, imposed and served.

[2]

The Crown seeks leave to appeal the sentences imposed. The Crown submits
    that the trial judges imposition of two intermittent sentences totalling five
    months are illegal because they circumvent the limitation on the length of
    sentences served intermittently prescribed in s. 732(1) of the
Criminal
    Code
, R.S.C. 1895, c. C-46. Further, the Crown says that the sentence
    imposed by the trial judge is demonstrably unfit. If leave is granted, the
    Crown invites us to increase the sentence to a mid-to upper-range reformatory
    sentence, less credit for time spent in service of the intermittent sentences,
    to be followed by a period of probation for 12 months. To give effect to the
    Crowns submissions would require the re-incarceration of Clouthier.

[3]

As I will explain, I would grant leave to appeal, allow the appeal and
    order the respondent to serve a further 9 months in custody followed by a
    period of probation for 12 months.

The Background Facts

[4]

On June 27, 2013, Clouthier had a few drinks. He decided to get into his
    truck and drive home. His blood-alcohol concentration was between 100 and 150
    milligrams of alcohol in 100 millilitres of blood.

[5]

Shortly before 11:00 p.m., Clouthier rear-ended another vehicle as he
    approached an intersection. Rather than remaining at the scene of the accident
    he caused, Clouthier reversed his vehicle, drove over a median, and fled into a
    residential area.

[6]

A few minutes later, and a short distance away, Clouthier rear-ended a
    second vehicle. He did not remain at the scene of this accident either. He
    turned, accelerated his truck to speeds ranging from 100 to 130 kilometres per
    hour in a residential area and collided head-on with another vehicle.

[7]

In addition to the driver, several passengers were riding in the third
    vehicle Clouthier struck. A rear seat passenger suffered serious internal injuries
    which required emergency surgery.

[8]

Clouthier climbed out of the window of his significantly-damaged truck
    and tried to run away. Third time unlucky. He was apprehended by witnesses and
    detained at the scene until police arrived and arrested him.

The Trial Proceedings

[9]

Clouthier pleaded guilty to counts of impaired operation causing bodily
    harm, dangerous operation causing bodily harm, and two counts of failure to
    stop at the scene of an accident.

[10]

The
    pleas of guilty appear to have been entered and a Pre-Sentence Report ordered
    on June 9, 2014. For reasons that are not readily apparent, the trial Crown did
    not read into the record a summary of the circumstances surrounding the
    offences to which the pleas of guilty were entered.

The Sentencing Hearing

[11]

About
    nine months after the guilty pleas were entered, the trial Crown read into the
    record the summary of the circumstances of the offences to which Clouthier had
    pleaded guilty. Counsel then made submissions on sentence on all of the convictions.

[12]

Trial
    counsel for Clouthier, who is also counsel on the appeal, urged the trial judge
    to suspend the passing of sentence and impose a lengthy period of probation or
    impose a jail sentence that could be served intermittently.

[13]

The
    trial Crown proposed a sentence of imprisonment for 12 months to be followed by
    a term of probation with some credit being awarded for attendance at a
    treatment program prior to sentence.

The Imposition
    of Sentence

[14]

On
    April 7, 2015 Clouthier appeared for sentencing. His counsel advised the trial
    judge that Clouthier had recently obtained full-time employment.

[15]

The
    trial judge expressed her conclusion about the sentence she considered
    appropriate in these terms:

The numerous aggravating factors in this case, as well as the
    need for denunciation and general deterrence, require a custodial sentence. In
    all of the circumstances, I am satisfied that a total sentence of six months is
    appropriate. I am prepared to give Mr. Clouthier credit equivalent to one month
    for his time in treatment. Therefore, the total sentence is a sentence of five
    months, and that will be followed by 12 months probation. There will also be a
    five-year driving prohibition.

[16]

The
    trial judge offered Clouthier an option to serve his sentence intermittently in
    two installments, neither of which would exceed 90 days. The judge said:

Now, given that I just said he started working, the total
    sentence is to be a sentence of five months. Today, prior to arriving here, it
    would have been straight time. However, now that Mr. Clouthier has started
    work, given the mitigating factors, I would be prepared, Mr. May, if your
    client wants to do it this way, to sentence him on one count right now for 90
    days intermittent, to have him complete that, and to come back and be sentenced
    to another further 60 days intermittent. Its up to your client.

[17]

Clouthier
    accepted the trial judges proposal. The judge imposed a sentence of 90 days in
    custody on the conviction of impaired operation causing bodily harm and
    directed that the sentence be served intermittently. She adjourned the
    sentencing on the other counts until August 13, 2015.

[18]

On
    August 13, 2015 the trial judge imposed sentences of 60 days on each of the
    remaining counts. She directed that the sentences be served concurrently and
    intermittently. She did not impose a term of probation to commence at the
    conclusion of the service of the intermittent sentence.

The Grounds of Appeal

[19]

The
    Crown appeals the sentences imposed by the trial judge on two grounds:

i.

that the trial judge erred in law by sentencing the respondent in a
    manner that effectively imposed a six-month intermittent sentence contrary to
    s. 732(1) of the
Criminal Code
; and

ii.

that the sentences imposed were demonstrably unfit because they failed
    adequately to address the sentencing objectives of denunciation and general
    deterrence.

Ground #1: The Legality of the Sentences Imposed

[20]

The
    first ground of appeal questions the legality of the sentences imposed on
    Clouthier (the respondent). The argument focusses on the effect of imposing
    discrete sentences, each to be served intermittently, which, considered
    together, exceed the length the
Criminal Code
permits for sentences
    that may be served intermittently.

The Additional
    Background

[21]

The
    respondent entered his guilty pleas to various counts in the information at the
    same time. The trial Crown read in the facts in support of the pleas a few
    months later. Counsel on both sides made their submissions as to sentence at
    the same hearing. The trial judge scheduled a date for the imposition of
    sentence.

[22]

The
    passages excerpted in paragraph 15 demonstrate that it was the trial judge who
    proposed to bifurcate the sentencing process to permit the entire sentence to
    be served intermittently. Counsel for the respondent accepted the trial judges
    proposal. The trial Crown said nothing.

The Arguments on Appeal

[23]

In
    this court, Crown counsel says that, by chaining 90-day and 60-day
    intermittent sentences, the trial judge imposed what was effectively an illegal
    five-month intermittent sentence. Consecutive intermittent sentences, which
    cumulatively exceed the 90-day limit prescribed by s. 732(1), are illegal.

[24]

Crown
    counsel invokes the decision in
R. v. Middleton
, 2009 SCC 21, [2009] 1
    S.C.R. 674, in support of her submission that chaining intermittent sentences
    beyond the 90-day limit in s. 732(1) defeats the very object of this subsection
    and disregards the correctional principles it was meant to serve. This
    staggered approach to sentencing to avoid the 90-day limit for intermittent
    sentences and, thereby, to circumvent the will of Parliament is an error of law
    that results in an illegal sentence.

[25]

The
    respondent disagrees. The important consideration is when the intermittent
    sentences begin to run. Where two or more sentences of imprisonment are imposed
    at the same time and are to be served intermittently and consecutively to each
    other, the sentences must not exceed 90 days in their total length.

[26]

In
    this case, the respondent argues, the sentences were imposed on different days.
    The first sentence had expired before the second began. The second sentence was
    not and, indeed, could not be ordered to be served consecutively to the first.
    Neither sentence on its own exceeded 90 days. No chaining occurred. The
    decision in
Middleton
has no application.

The Governing Principles

[27]

Section
    732(1) of the
Criminal Code
describes the circumstances in which a
    sentence of imprisonment may be served intermittently. The subsection provides:

732 (1) Where the court imposes
a sentence of
    imprisonment of ninety days or less
on an offender convicted of an
    offence, whether in default of payment of a fine or otherwise, the court may,
    having regard to the age and character of the offender, the nature of the
    offence and the circumstances surrounding its commission, and the availability
    of appropriate accommodation to ensure compliance with the sentence, order

(a) that the sentence be served intermittently at
    such times as are specified in the order; and

(b) that the offender comply with the conditions
    prescribed in a probation order when not in confinement during the period that
    the sentence is being served and, if the court so orders, on release from
    prison after completing the intermittent sentence. [Emphasis added.]

[28]

Under
    s. 719(1) of the
Criminal Code
, a sentence commences when it is
    imposed, except where a relevant statute provides otherwise.

[29]

Section
    718.3(4) describes the circumstances in which a sentencing court has the
    authority to order that the sentences be served consecutively:

718.3(4) The court or youth justice  court that
    sentences an accused may direct that the terms of imprisonment that are imposed
    by the court or the youth justice court or that result from the operation of
    subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for
    an offence, and a term of imprisonment, whether in default of payment of a fine
    or otherwise, is imposed;

(b) the accused is found guilty or convicted of an
    offence punishable with both a fine and imprisonment and both are imposed;

(c) the accused is found guilty or convicted of more
    than one offence, and

(i) more than one fine is imposed,

(ii) terms of imprisonment for the respective
    offences are imposed, or

(iii) a term of imprisonment is imposed in respect
    of one offence and a fine is imposed in respect of another offence; or

(d) subsection 743.5(1) or (2) applies.
[2]

[30]

In
Middleton
, the appellant had been sentenced at the same time to a term
    of 90 days imprisonment to be served intermittently and to two concurrent
    18-month sentences to be served conditionally. On appeal, this court held that:

i.

both the intermittent and conditional sentences were legal; but

ii.

the 90-day prison sentence had to be served on consecutive days, not
    intermittently.

[31]

The
    Supreme Court of Canada allowed the appeal and affirmed the sentences imposed
    by the trial judge. The majority concluded that chaining intermittent
    sentences beyond the 90-day limit established by Parliament in s. 732(1)
    defeats the very object of the subsection and disregards the correctional
    principles it was meant to serve:
Middleton
, at paras. 45-46. The
    conditional sentences imposed at the same time were not a sentence of
    imprisonment within the meaning of s. 732(3) and thus did not extend the
    intermittent sentence beyond the 90-day limit in s. 732(1). It followed,
    according to the majority, that the sentences imposed by the trial judge  a
    90-day sentence of imprisonment to be served intermittently and concurrent
    sentences of 18 months to be served conditionally  were lawful.

[32]

In
R. v. Nunner
(1976), 30 C.C.C. (2d) 199 (Ont. C.A.), the appellant was
    charged with and pleaded guilty to several offences, including a count of
    robbery. The trial judge suspended the passing of sentence and put the
    appellant on probation on all of the offences except robbery. A term of the
    probation order was that the appellant was to return before the sentencing
    judge in three months, and again five months thereafter, with reports from his
    school and his probation officer. The trial judge adjourned the robbery
    sentencing for three months, and then for another two months, explaining to the
    appellant that he would be watching his conduct and would impose a substantial
    term of imprisonment if the appellant were in any further trouble.

[33]

The
    Crown sought
mandamus
to compel the trial judge to proceed with the
    sentencing on the robbery conviction. The order was granted. Nunner appealed.
    This court set aside the order in lieu of
mandamus
on the ground of
    prematurity.

[34]

A
    majority of the Court was of the view that a sentencing judge had the
    discretion to postpone sentencing provided the discretion was not exercised for
    an illegal purpose, for example, to see whether the offender would make
    restitution, aid in the investigation of others, or help police recover stolen
    property:
Nunner
, at p. 207. The majority regarded any postponement of
    sentencing beyond a month or two as
prima facie
evidence of the
    exercise of judicial discretion for an improper purpose:
Nunner
, at p.
    207.

The Principles Applied

[35]

As
    I will explain, I would give effect to this ground of appeal although I would
    not characterize the sentences imposed as illegal.

[36]

Each
    sentence of imprisonment imposed by the trial judge did not exceed 90 days,
    thus each could be served intermittently without offending s. 732(1). The first
    intermittent sentence had been completed before the second sentence to be
    served intermittently was imposed. The trial judge could not in those
    circumstances have ordered the second sentence to be served consecutively to
    the first:
Criminal Code
, s. 718.3(4). At the risk of semantic
    quibble, I would not characterize the sentences imposed  more accurately, the
    60-day intermittent sentence imposed on August 13, 2015  as illegal in the
    sense described by the majority in
Middleton
.

[37]

In
Middleton
, the sentences under consideration were imposed by the same
    judge at the same time. One sentence was to be served intermittently, the
    others conditionally. The sentences were to be served concurrently with one
    another. Since the sentences to be served conditionally were not a sentence of
    imprisonment within the meaning of s. 732(1), the combination did not defeat
    the object of s. 732(1).

[38]

What
    happened here was that, by imposing intermittent sentences at different times,
    the trial judge did indirectly what she could not have done directly without
    breaching the 90-day limit in s. 732(1) of the
Criminal Code
. The
    result is an effective sentence that defeated the very object of s. 732(1) and
    disregarded the correctional principles that it was meant to serve.

[39]

Pleas
    were entered to several counts in the same information and a Pre-Sentence
    Report ordered in respect of those admissions of guilt. Counsel made
    submissions, victim impact statements were received, and another date fixed for
    the imposition of sentence. No one suggested bifurcation of the sentencing
    process.

[40]

A
    trial judge has an undoubted discretion to postpone sentencing. But the
    postponement must be for a proper purpose:
Nunner
, at p. 204. The
    singular purpose of the postponement here  to circumvent the restrictions
    imposed on the length of an intermittent sentence by s. 732(1)  was improper
    and amounted to the exercise of judicial discretion for an illegal purpose:
Nunner
,
    at pp. 205 and 207.

Ground #2: The Demonstrable Unfitness of the Sentence

[41]

The
    second ground of appeal challenges the fitness of the sentence imposed  five
    months  without regard to its functional defiance of s. 732(1).

[42]

It
    is helpful to begin consideration of this ground of appeal with a brief
    reference to some of the circumstances of the respondent and his offences.

The Essential Background

[43]

In
    15 minutes one summer night, the respondent was involved in three motor vehicle
    accidents. He rear-ended two vehicles. He smashed head-on into a third. His
    blood-alcohol concentration was between 100 and 150 milligrams of alcohol in
    100 millilitres of blood. He fled the first two accident scenes in his truck.
    He drove at speeds between 100 and 130 kilometres per hour in a residential
    area. He was captured by witnesses when he attempted to flee on foot from the
    third accident scene. A passenger in the last vehicle the respondent struck was
    seriously injured and required emergency surgery. The occupants of this vehicle
    suffered both physical and psychological harm as a result of the accident.

[44]

The
    respondent pleaded guilty. He expressed sincere remorse for his conduct. He was
    a 21-year-old first-time offender who had a job. The Pre-Sentence Report was
    very favourable. Since sentencing, he has made and continues to pursue
    rehabilitative efforts.

[45]

At
    the time he committed the offences, the respondent was suffering from a major
    depression. He was abusing both alcohol and drugs. He had poor impulse control
    and difficulty managing his anger. He self-medicated with drugs and alcohol.

[46]

Prior
    to sentencing, the respondent participated in a drug and alcohol addiction
    program at the Royal Ottawa Hospital. Since sentencing, he has continued to
    participate in rehabilitative programs for drug and alcohol addiction. He has
    undertaken psychotherapy with a psychiatrist. He has also done volunteer work
    in his community. He remains employed.

The Positions of the Parties at Trial

[47]

The
    trial Crown sought a sentence of imprisonment of 12 months followed by a period
    of probation of equivalent length and several ancillary orders.

[48]

Counsel
    for the respondent invited the trial judge to suspend the passing of sentence
    and order the respondent to comply with the terms of a probation order for a
    period of three years. In the alternative, counsel contended that a short sentence
    of imprisonment to be served intermittently, and followed by a period of
    probation, would meet the ends of justice if a period of incarceration was
    thought to be warranted.

The Arguments on Appeal

[49]

In
    this court, Crown counsel says that the sentence imposed is demonstrably unfit.
    The predominant sentencing objectives  general deterrence, denunciation and
    protection of the public  require the imposition of a significant custodial
    sentence in the mid-to upper-reformatory range. Further, the sentence imposed
    on the fail to stop counts should be made consecutive to the sentences for the
    impaired and dangerous operation counts.

[50]

The
    respondent does not dispute the predominant role of denunciation and general
    deterrence in determining the sentence to be imposed. That said, the respondent
    says the sentence was not demonstrably unfit as the Crown contends.

[51]

The
    respondent submits that sentencing decisions are notoriously case-specific.
    They are subject to significant deference on appeal. The trial judges choice
    of a sentencing range and her location of a sentence within that range are
    matters of judicial discretion and do not amount to reviewable error. Indeed,
    even if the sentence imposed falls outside the applicable range, it does not
    mean that the sentence is demonstrably unfit and warrants appellate
    intervention.

[52]

In
    this case, the respondent contends, the sentence imposed is not demonstrably
    unfit for a youthful first offender who is sincerely remorseful, has undertaken
    significant rehabilitative steps and is a contributing member of his community.
    Re-incarceration will derail these rehabilitative efforts and impede his
    reintegration into his community.

The Governing Principles

[53]

The
    fundamental principle of sentencing is that the sentence imposed must be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender:
Criminal Code
, s. 718.1.

[54]

The
    predominant sentencing objectives in determining a fit sentence for
    alcohol-driving offences, especially those in which bodily harm is caused to a
    fellow human being, are general deterrence and denunciation:
R. v. Junkert
,
    2010 ONCA 549, 103 O.R. (3d) 284, at paras. 42 and 47;
R. v. Biancofiore
(1997), 35 O.R. (3d) 782 (C.A.), at pp. 790-92. As a general rule, custodial
    sentences are required where bodily harm is caused:
Biancofiore
, at p.
    791.

[55]

The
    offences of dangerous or impaired operation of a motor vehicle and failing to
    stop at the scene of an accident protect different social interests. It follows
    that the rule or principle of sentencing  that sentences for offences arising
    out of the same transaction or incident should normally be concurrent  does
    not necessarily apply when the offences constitute invasions of different
    legally protected interests. Subject to the principle of totality, consecutive
    sentences are warranted:
R. v. Gummer
(1983), 1 O.A.C. 141, at para.
    13;
R. v. Van Puyenbroek
, 2007 ONCA 824, 226 C.C.C. (3d) 289, at para.
    63.

[56]

The
    range of sentence for the offences of which the respondent was convicted varies
    significantly. For our purposes, it is enough to say that within that range are
    sentences in the mid to upper reformatory and lower end penitentiary range.

The Principles Applied

[57]

For
    the brief reasons that follow, I would give effect to this ground of appeal.

[58]

First,
    the sentence imposed, essentially five months, fails to reflect in any
    meaningful way the predominant sentencing objectives of general deterrence,
    denunciation, and protection of the public.

[59]

With
    a blood-alcohol concentration in excess of that prohibited by law, the
    respondent got into his truck and caused three accidents within 15 minutes.
    Without any regard for the health or safety of the occupants of any of the
    vehicles he struck, he fled each scene, accelerating away in one instance to
    speeds at least twice the posted limit in residential areas.

[60]

Second,
    the trial judge erred in failing to impose consecutive sentences for the
    failure to stop offences. While the sentences for failure to stop could
    properly be made concurrent to each other for reasons of totality, they should
    have been made consecutive to the sentences for the dangerous and impaired operation
    offences.

[61]

The
    respondent pleaded guilty and was genuinely remorseful for the havoc he
    wrought. He has taken and continues to pursue programs and individual therapy
    to leave behind his addictions and ameliorate his underlying condition of
    depression. He has an excellent work history and is committed to volunteer work
    in his community. Were it not for these positive attributes, a fit sentence
    would involve a more lengthy period of incarceration.

[62]

In
    my view, an appropriate sentence in this case would have been a sentence in the
    range of 15 to 18 months in a provincial reformatory followed by a period of
    probation for 12 months including both mandatory and optional conditions.

[63]

In
    deciding whether to re-incarcerate the respondent, who has served the full
    sentences imposed at trial and complied with the terms of probation required by
    s. 732(1)(b) when not in custody, I have taken into account:

i.

the time that has elapsed from the imposition and completion of the
    sentences at trial;

ii.

the rehabilitative steps taken by the respondent, both before and after
    sentencing, and the degree to which those steps may be adversely affected by
    re-incarceration;

iii.

the seriousness of the offences of which the respondent has been
    convicted; and

iv.

responsibility for any delay in the appellate process.

[64]

These
    were serious offences that demonstrated a complete disregard for the lives and
    safety of others lawfully using the streets of an urban area on a summer
    evening. Repeated flights from the scenes of the accidents displayed a callous
    indifference to fellow motorists. No undue delay has occurred between service
    of the sentence and the hearing and determination of the sentence appeal.
    Despite the respondents remorse and significant rehabilitative steps, I see no
    reason to stay the operation of the sentence I consider appropriate in this
    case.

[65]

As
    for precedent, too much significance should not be attached to the actual
    sentence I have concluded should remain to be served in this case. That
    sentence is a function of myriad factors, including but not limited to:

i.

the sentence sought by the trial Crown and by appellate counsel for the
    Crown;

ii.

the fact that the respondent pleaded guilty, is genuinely remorseful,
    and has undertaken and continues to pursue group programs and individual
    therapy with mental health professionals to identify and treat the conditions
    that, in combination, contributed to the offences of which the respondent has
    been convicted;

iii.

the respondent has already served the carceral portion of the sentence
    imposed by the trial judge and has complied with the terms of a probation order
    during the non-custodial periods of his intermittent sentences; and

iv.

the appellant seeks to have the respondent, a first-time offender,
    recommitted to prison to serve a further period of incarceration that exceeds
    the sentence already served.

A variation of sentence in these circumstances, an
ex
    post facto
correction of an unfit sentence imposed at first instance, is
    not determinative of where within or outside the range comparable sentencing
    decisions should settle.

Conclusion

[66]

In
    the result, I would grant leave to appeal sentence, allow the appeal from
    sentence, and vary the sentence to a term of imprisonment of 15 months to be
    followed by probation for a further period of 12 months. I would apportion the
    carceral components of the sentence as follows:

i.

Impaired Operation causing Bodily Harm: 11 months;

ii.

Dangerous Operation causing Bodily Harm: 11 months concurrent;

iii.

Fail to Stop: 4 months consecutive to i; and

iv.

Fail to Stop: 4 months concurrent to iii.

[67]

In
    light of the time already spent in custody on the intermittent sentences and
    the one month of pre-sentence credit awarded by the trial judge for time spent
    in a pre-sentence treatment program, I would reduce the total sentence to a
remanet
of 9 months, to be followed by probation for 12 months on the statutory
    conditions and the following optional conditions:

i.

refrain absolutely from the consumption of alcohol and other
    intoxicating substances and refrain from the consumption of drugs except for
    those prescribed by a duly qualified medical practitioner;

ii.

if agreeable, participate or continue to participate actively in any
    treatment program or counselling approved by your probation officer;

iii.

make reasonable efforts to seek and maintain gainful employment or
    continue your education; and

iv.

report to a probation officer within two working days of your release
    from custody and thereafter in the manner directed and when required by the
    probation officer.

[68]

The
    respondent shall surrender into custody at the place in which he served his
    intermittent sentences within 72 hours of release of these reasons. Failing
    surrender, a warrant may issue for his apprehension.

Released: March 9, 2016 (EEG)

David
    Watt J.A.

I
    agree Eileen E. Gillese J.A.

I
    agree M. Tulloch J.A.

[1]
The information contains the name Thomas D. Clouthier. Counsel for the
    respondent, his employer and others refer to him as David Clouthier. In these
    reasons he will be described as Clouthier or the respondent.

[2]
This version of s. 718.3(4) was in force at the time of the offences and the
    imposition of the first intermittent sentence. A new s. 718.3(4) came into
    effect on July 17, 2015,


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Comtois, 2016 ONCA 185

DATE: 20160303

DOCKET: C60976

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Comtois, Robbie Dickson, and Dwayne Ouimet

Appellants/Defendants

Julian Roy and Marc Gibson, for the appellant

Nicholas Devlin, for the respondent

Heard: March 2, 2016

On appeal from the judgment of Associate Chief Justice Frank
    N. Marrocco of the Superior Court of Justice, dated August 11, 2015, dismissing
    an application for
certiorari
to quash the order of Justice Knott of
    the Ontario Court of Justice, dated October 20, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appellants challenge the decision of Marrocco A.C.J., dismissing
    their application for
certiorari
and for
Charter
relief to
    quash a decision of a summary conviction trial judge requiring them to attend
    for at least part of their trial, that is to say, arraignment, procedural
    discussions, and the Crowns evidence. The appellants say the summary
    conviction trial judge erred in fettering his discretion whether to require the
    attendance of the appellants by giving weight to a pre-existing practice.

[2]

The
certiorari
judge indicated that even if there had been
    jurisdictional error, he would have exercised his discretion to decline
certiorari
.

[3]

The appellants have not demonstrated any error on the part of Marrocco
    A.C.J.

[4]

As Sharpe J.A. indicated in para. 14 of his decision in this matter
    refusing a stay pending appeal:

It is well established that trials will not be interrupted by
    appeals or
certiorari
applications impugning orders made in the course
    of ongoing criminal proceedings unless the applicant can establish that the
    circumstances are such that the interests of justice necessitates the immediate
    granting of the prerogative or
Charter
remedy by the Superior Court:
R.
    v. Johnson
(1991), 3 O.R. (3d) 49 (C.A.). No such circumstances exist in
    this case.

[5]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhanaswar, 2016 ONCA 172

DATE: 20160301

DOCKET: C59461

Tulloch, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devika Dhanaswar

Appellant

Devika Dhanaswar, in person

Gerald Chan, duty counsel

Greg Skerkowski, for the respondent

Heard: February 9, 2016

On appeal from the convictions entered by Justice Todd
    Ducharme of the Superior Court of Justice on May 20, 2014, and from the
    sentence imposed on September 19, 2014, with reasons reported at [2014] O.J.
    No. 6387 (S.C.) and [2014] O.J. No. 6388 (S.C.).

ENDORSEMENT

[1]

The appellant was convicted of two counts of fraud over five thousand
    dollars following a trial by judge sitting without a jury. She was sentenced to
    six years imprisonment on each charge, concurrent. The sentencing judge
    ordered her to pay restitution in the amount of $2,372,702, and imposed a fine
    in lieu of forfeiture in the same amount, with six years to pay it following
    her release. He imposed the minimum sentence provided by s. 462.37(4) of the
Criminal
    Code
in case of default for that amount of money, five years
    imprisonment.

[2]

The appellant appeals her convictions and sentence. On the conviction
    appeal, she argues that the verdict was unreasonable in light of the evidence.
    On the sentence appeal, she argues that the trial judge erred by imposing a
    sentence that was outside of the acceptable range.

Conviction appeal

[3]

The two charges arose out of a series of fraudulent real estate
    transactions initiated by the appellant and her co-accused husband, Mohammed
    Saheed. The first count relates to various real estate deals, and the second to
    various loans that were exchanged for promissory notes.

[4]

On the real estate fraud, the trial judge found that both the appellant
    and her husband repeatedly represented to potential investors that they could
    make large sums of money with relatively small initial investments, and that
    these claims were false. He also found that the appellant was an active
    participant in the fraudulent scheme, as she occupied management or executive
    positions in the various corporations involved in the fraud.

[5]

On the promissory note fraud, he found that while there was no evidence
    the appellant was directly involved in the negotiation of promissory notes,
    there was evidence that she aided her husband.

[6]

We see no error in the trial judges factual findings or reasoning. We
    do not agree that the verdict was unreasonable or that it could not be
    supported by the evidence.

[7]

The evidence was unequivocal that the appellant was an active
    participant in the fraudulent scheme with her husband. She occupied management
    or executive positions in the various companies that committed the frauds. She
    actively participated in the marketing of the various fraudulent transactions
    and made statements in support of her husbands credibility to prospective
    investors, in the face of obvious misleading information. She also assisted
    with promotional materials that she knew were deceptive.

[8]

Similarly, there was clear evidence that the appellant knew that the
    promissory notes were useless, or at least that she was willfully blind as to
    their fraudulent nature, yet aided her husband anyway.

Sentence appeal

[9]

We see no merit in the appellants argument.

[10]

This
    was a large scale fraud with multiple victims who were duped into trusting the
    appellant so that she and her husband could take advantage of their
    vulnerability.

[11]

In
    our view, in a case such as this, there was a real need to emphasize
    denunciation and general deterrence:
R. v. Dobis
(2002), 58 O.R. (3d)
    536, at para. 42. The appellants conduct had devastating consequences on the
    victims. The sentence was fit and within the acceptable range. Accordingly, there
    is no basis to interfere.

Disposition

[12]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted, but the
    sentence appeal is dismissed.

M. Tulloch J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhanaswar, 2016 ONCA 229

DATE: 20160324

DOCKET: C59461

Tulloch, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devika Dhanaswar

Appellant

Devika Dhanaswar, in person

Gerald Chan, duty counsel

Greg Skerkowski, for the respondent

Heard: February 9, 2016

Supplementary reasons to the judgment in
R. v.
    Dhanaswar,
2016 ONCA 172, released on March 1, 2016.

ADDENDUM

[1]

Following the release of our endorsement on March 1, Crown counsel,
    supported by duty counsel for the appellant, wrote to the court and drew our
    attention to the fact that we had not addressed two issues raised by duty
    counsel and conceded by the Crown.

[2]

Those two issues concerned the trial judges order for the fine in lieu
    of forfeiture. That order provided that the appellant and her co-accused were
    jointly and severally responsible for paying the total amount of the fine.
    First, duty counsel argued that while a restitution order may be made payable
    jointly and severally, fine in lieu of forfeiture orders may not. Second, duty
    counsel asked this court to give effect to the trial Crowns request for a
    provision that any amount paid toward the fine be redirected to the victims and
    count toward the satisfaction of the restitution order.

[3]

We agree with the parties on the second issue and, for greater
    certainty, would amend the order of the trial judge to state: the restitution
    order shall take priority over payment of the fine in lieu of forfeiture
    ordered herein, and the fine in lieu of forfeiture shall be reduced by any
    amount paid pursuant to the restitution order.

[4]

We decline to exercise our jurisdiction, however, to decide the first
    issue  whether a fine in lieu of forfeiture may be ordered payable jointly and
    severally.

[5]

While an appellate court may hear and decide new issues not raised at
    trial, its discretion to do so should not be exercised routinely or lightly:
R.
    v. Guindon,
2015 SCC 41, [2015] 3 S.C.R 3, at para. 22. Before doing so,
    the court must be satisfied that the new issue raised on appeal can be fully,
    effectively and fairly addressed even though it was not raised at trial:
R.
    v. K.R.
, 2009 ONCA 156, 246 O.A.C. 96, at para. 7.

[6]

Duty counsel and the Crown urge us to adopt their joint position on the
    interpretation of a part of the proceeds of crime scheme in the
Criminal
    Code
that provides a key tool to combat terrorism and organized crime, and
    which was implemented as part of Canadas international obligations:
R. v.
    Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392.

[7]

In light of those obligations, we note that the question raised before
    us has been the subject of some controversy outside of Canada for similar
    schemes, and that the imposition of joint and several liability on fines has
    been upheld: see e.g.
United States v. Caporale
, 806 F. (2d) 1487
    (11th Cir. 1986), at pp. 1506-10.

[8]

Here, this issue was raised for the first time in oral submissions at
    the appeal hearing. It was not contested at trial. In fact, the defence relied
    on the joint and several nature of the fine to argue for a longer period of
    time in which to pay it. Because the Crown is now conceding an issue that was
    not raised at trial, we do not have the benefit of any arguments whatsoever
    that explore whether Parliament intended that such orders could be made jointly
    and severally. Nor have the parties provided us with any evidence of
    legislative intent.

[9]

Instead they have asked us to rely on one authority for our decision
    Durno J.s unreported decision in
R. v. Piccinini
(5 March 2013)
,
Milton CR-12-077-0000 (Ont. S.C.)  which, though thorough and thoughtful, is
    not conclusive of the matter.

[10]

In
    this case, we are not prepared to decide this controversial issue in the midst
    of an adversarial void and evidentiary vacuum.

[11]

Accordingly,
    the order is amended to provide that any amounts paid toward the fine are to be
    directed towards the victims and count towards satisfaction of the restitution
    order. The sentence and conviction appeals are otherwise dismissed.

M. Tulloch J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Emery, 2016 ONCA 204

DATE: 20160311

DOCKET: C57177

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Emery

Appellant

Christopher Emery, acting in person

Zachary Kerbel, duty counsel

Matthew Asma, for the respondent

Heard: March 7, 2016

On appeal from the conviction entered on March 25, 2013
    by Justice John T. Lynch of the Ontario Court of Justice.

ENDORSEMENT

[1]

Christopher Emery appeals from his convictions for: unauthorized
    possession of a prohibited weapon (a Mauser handgun) (Count 2); 2 counts of
    possession of a firearm obtained by the commission of an offence; unauthorized
    possession of a firearm; and, failure to comply with a probation order.

The Amendment Issue

[2]

Duty Counsel assisting the appellant submitted that Count 2 wrongly
    charged the appellant with possession of a prohibited weapon, rather than a prohibited
    firearm. The Crown conceded the error and requested an amendment of the
    indictment.

[3]

Section 683(1)(g) of the
Criminal Code
, R.S.C. 1985, c. C-46,
empowers this
    court to amend an indictment where it considers it in the interests of justice,
    unless the court is of the opinion that the accused has been misled or
    prejudiced in his defence or appeal.

[4]

We are satisfied that the appellant was not misled or prejudiced. The
    case was prosecuted and defended on the basis that Count 2 was based on
    unauthorized possession of a prohibited firearm, not a prohibited weapon.
    Furthermore, the appellant has not demonstrated  or even alleged  any
    prejudice in his defence or appeal.  Thus, it is in the interests of justice
    that the requested amendment be made.

The Issue on Appeal

[5]

The firearms in question (a rifle and a handgun) were stolen from a
    firearms collector in Cambridge and later acquired by the appellant. The
    appellant does not dispute the trial judges finding that he was in possession
    of the firearms and was wilfully blind as to their origin. However, Duty
    Counsel submitted that the trial judge erred in finding that the firearms were
    operable.

[6]

We disagree.

[7]

The owner testified that the firearms were fired in 1997 and have been stored
    since that time. The rifle was stored in a plastic box encased in foam, while
    the handgun was stored in a locked steel cabinet.

[8]

The owner was not cross-examined concerning the condition of the
    firearms or the conditions of their storage. There was no evidence to suggest
    that either of the weapons was, or could have become, inoperable given the
    passage of time. Photographs of the firearms viewed by the trial judge showed
    that the firearms were in good condition.

[9]

The trial judge explicitly recognized the burden on the Crown to prove
    that the firearms were operable.  He adverted to the evidence summarized
    above.

[10]

In
    all of these circumstances, we see no basis on which to interfere with the
    trial judges finding that the firearms were operable.

[11]

The
    appellant submitted that the trigger locks were not found where the police
    testified, but nothing follows from this. There is overwhelming photographic
    evidence that the appellant was in possession of the stolen firearms.

DISPOSITION

[12]

Accordingly,
    Count 2 in the indictment shall be amended to substitute firearm for
    weapon, and section 91(1) is substituted for 91(2).

[13]

The
    appeal is dismissed.

K. Feldman J.A.

E.E. Gillese
    J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grizzle, 2016 ONCA 190

DATE: 20160307

DOCKET: C58579

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Grizzle

Appellant

Breana Vandebeek, for the appellant

David Finley, for the respondent

Heard: February 29, 2016

On appeal from the conviction entered on September 20,
    2013 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting
    with a jury.

ENDORSEMENT

[1]

The appellant appeals a jury verdict finding him guilty of possession of
    a loaded prohibited firearm. He advances three complaints:

i.

the trial judges erroneous instructions on the fault element in the
    offence charged in connection with his co-accused infected the instructions on a
    count charging the same offence against the appellant;

ii.

the trial judge erred in failing to remedy the trial Crowns improper
    re-examination of an adverse Crown witness and her closing address; and

iii.

the trial judge erred in her editing of the appellants criminal record
    in her
Corbett
ruling.

[2]

We would not give effect to any of the grounds of appeal advanced on
    behalf of the appellant and would dismiss the appeal.

Ground #1: Erroneous Instruction on Fault Element

[3]

It is common ground that the trial judges instructions on the fault
    element of the same offence alleged against the co-accused Tyrell in a separate
    count reflect error:
R. v. Tyrell
, 2014 ONCA 617, at paras. 31-33 and
    37-39.

[4]

The trial Crown advanced the case against the appellant and Tyrell on
    different grounds. The trial judge did likewise in her legal instructions on
    the basis of liability and her recitation of the case for the Crown. The errors
    made with respect to the fault element in connection with Tyrell were not
    repeated or incorporated by reference in connection with the count charging the
    same offence involving the appellant. The jurors were also instructed to decide
    the case against each person charged separately and individually on the basis
    of the evidence that applied to that person and in accordance with the legal
    principles that governed that individual. The jurors were provided with a
    written version of the instructions given orally by the trial judge.

[5]

In our view, the appellant makes too much of the risk that the jury
    might have transposed the flawed instructions on the fault element given only
    in connection with the case against Tyrell to their deliberations relating to
    the charge against the appellant. Nothing the trial judge said or left unsaid
    expressly or impliedly invited jury use of the principles governing Tyrells
    liability in deciding whether the Crown had proven the appellants guilt beyond
    a reasonable doubt.

[6]

We would reject this ground of appeal.

Ground #2: Improper Crown Conduct

[7]

The appellant also complains about the trial Crowns conduct in two
    respects:

i.

cross-examination of a Crown witness beyond the scope of what is
    permitted under s. 9(2) of the
Canada Evidence Act
(
CEA
); and

ii.

violation of the rule in
Browne v. Dunn
(1893), 6 R. 67
    (U.K.H.L.) in the trial Crowns closing address.

[8]

We first consider the complaint that the re-examination of the Crown
    witness Ms. McPhee exceeded the bounds of what had been permitted under the
    trial judges earlier ruling permitting Crown counsel to cross-examine her under
    s. 9(2)
CEA
.

[9]

It is well-settled that cross-examination under s. 9(2) may occur in
    re-examination:
R. v. Moore
(1984), 15 C.C.C. (3d) 541 (Ont. C.A.), at
    pp. 568-569. It is equally well-established that cross-examination under s.
    9(2) can extend to questions about the circumstances in which the witness
    changed his or her earlier version of events when testifying about those same
    events at trial:
R. v. Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at
    para. 49

[10]

In
    our view, the re-examination by the trial Crown did not exceed permissible
    limits. The re-examination arose out of questions asked by trial counsel for
    the appellant in cross-examination of Ms. McPhee. It was open to the trial
    Crown to re-examine the witness on this aspect of her evidence. And under s.
    9(2) it was equally permissible for the trial Crown to cross-examine about the
    reasons for the change in her testimony.

[11]

Even
    if we were to conclude that the re-examination strayed beyond the permissible,
    the transgression was a minor event in a comparatively lengthy trial. Counsel
    for the appellant at trial objected only after the witness had left the witness
    box and did not take up the opportunity offered by the trial judge of making
    submissions about a remedy, such as a mid-trial corrective or limiting
    instruction.

[12]

The
    appellant also complains about the closing address of the trial Crown. To be
    more specific, the Crown suggested that apartment 309 at 2005 Eglinton Avenue
    West was a location where the accused would attend to engage in illegal
    activities, such as smoking marijuana and storing firearms, because the other
    locations they had access to would not allow this kind of activity. The
    appellant says that Crown counsel violated the rule in
Browne v. Dunn
because
    this theory was not put to the accused, Ms. McPhee  the owner of the apartment
     or any defence witnesses, so that it was unfair to invoke it in his closing
    address as a circumstance for the jury to consider in rejecting the case for
    the defence. The appellant adds that the defence requested the trial judge to
    advise the jury to give this evidence no weight, but she did not give such an
    instruction.

[13]

The
    rule in
Browne v. Dunn
(1894), 6 R. 67 (U.K.H.L.) is a rule of
    fairness, not a fixed or invariable rule. The extent of its application resides
    within the sound discretion of the trial judge. The remedy for a breach of the
    rule is a function of several factors. A trial judges choice of remedy is
    subject to substantial deference on appellate review:
R. v. Quansah
,
    2015 ONCA 237, 323 C.C.C. (3d) 191, at paras. 80-90.

[14]

When
    the complaint advanced here was made at trial, the trial judge concluded that
    no corrective action was required. Her assessment of the nature of the breach
    and whether some remedial action was required are decisions that were within
    her discretion and are entitled to deference in this court. We have not been
    persuaded that her conclusions reflect error.

Ground #3: The
Corbett
Ruling

[15]

The
    final ground of appeal asserts two errors in the trial judges
Corbett
ruling.
    To be more specific, the appellant says that the trial judge erred in:

i.

finding that the attack by trial counsel on the credibility of the
    investigating police officers amounted to an attack on their character; and

ii.

failing to exclude the appellants prior convictions for crimes of
    violence on the basis that their probative value was overborne by their
    prejudicial effect.

[16]

The
    decision of a trial judge to exclude or not exclude part of an accuseds
    criminal record is an exercise of judicial discretion. It is a decision that we
    do not review on a standard of correctness. In the absence of an error in
    principle or a misapprehension of relevant evidence, we are disentitled to
    interfere with the trial judges exercise of that discretion:
R. v. Talbot
,
    2007 ONCA 81, 217 C.C.C. (3d) 415, at paras. 37-38.

[17]

In
    this case, the trial judge was asked to exclude the appellants convictions of
    attempted murder, weapons-related offences and all assault convictions and to
    have the robbery conviction described as a conviction for theft. The trial
    judge deleted the weapons offence and substituted an assault conviction for
    that of attempted murder.

[18]

The
    principal driver of the trial judges decision was her determination that the
    appellant had attacked the character of the officer who located the gun and the
    appellants identification in a suitcase in the childrens bedroom. We are not
    persuaded that she erred in her characterization of the nature of trial
    counsels attack on the seizing officer. Despite this conclusion, she deleted
    all the weapons and firearms convictions to ensure that propensity reasoning
    did not seep into the deliberation process, limiting instructions
    notwithstanding.

[19]

The
    trial judges location of the balance between probative value and prejudicial
    effect is entitled to substantial deference in this court. That another trial
    judge might have set the balance differently does not entitle us to interfere.
    Indeed, another trial judge might not have sanitized the conviction of
    attempted murder: see, for example,
R. v. Saroya
, [1994] O.J. No. 2920
    (C.A.), at para. 13.

Conclusion

[20]

For
    these reasons, the appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hendricks, 2016 ONCA 237

DATE: 20160331

DOCKET: C58240

Blair, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Hendricks

Appellant

Breana Vandebeek, for the appellant

Andrew Cappell, for the respondent

Heard: March 30, 2016

On appeal from the conviction entered on February 22,
    2013 by Justice J.F. Kenkel of the Ontario Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

We see no basis for interfering with the trial judges decision.
    Indeed, we agree with his decision that the only reasonable rational conclusion
    arising from the circumstantial evidence was that the appellant was a party to
    the armed robbery.

[2]

Appeal dismissed.