COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Little, 2014 ONCA 339

DATE: 20140430

DOCKET: C51441

Doherty, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Little

Appellant

Christopher Little, appearing in person

Russell Silverstein and David S. Rose, appearing as
amicus
    curiae

Eric Siebenmorgen, for the respondent

Heard and released orally: April 10, 2014

On appeal from the conviction entered on November 25,
    2009 by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

Mr. Little was convicted of two counts of murder.  He represents himself
    on the appeal.  Mr. Silverstein was appointed under s. 684 to argue certain
    issues arising out of the trial judges ruling that certain evidence obtained from
    a search of the appellants cellphone and from a search of his workplace
    computer were admissible despite the violations of the appellants rights under
    s. 8 of the
Charter
.

[2]

Mr. Silverstein has argued the issue with his usual force and clarity.
    He focused primarily on the evidence obtained from the search of the workplace
    computer.  That search produced evidence of an internet search of the home
    address of Ms. Menendez, one of the victims.  The material included a map
    showing the precise location of her home.  This was potentially important
    evidence for the Crown.

[3]

In holding that the evidence was admissible, the trial judge carefully
    considered the three factors identified in
R. v. Grant
,
[2009] 2 S.C.R. 353.  The factual
    findings underlying her legal analysis are entitled to deference in this
    court.

[4]

Despite Mr. Silversteins submissions, we see no error in the trial
    judges application of the
Grant
factors to the search of the
    cellphone.  We need say no more on that issue as Mr. Silverstein did not press
    the point in oral argument.

[5]

We did call on the Crown to respond to Mr. Silversteins submission that
    the trial judge erred in finding that the interference with Mr. Littles
    privacy interest flowing from the search of his workplace computer falls at
    the lowest end of the scale.

[6]

Mr. Silverstein argued that given the intrusive nature of that search,
    the material accessed by the police and the appellants significant privacy
    interest (despite the fact that the computer belonged to his employer), the
    interference with the appellants privacy rights went well beyond the lowest
    end of the scale.  He submits that if the impact of the breach on Mr. Littles
    privacy rights is properly assessed, s. 24(2) favours exclusion.

[7]

Mr. Siebenmorgen for the Crown contends that the trial judges finding
    of a relatively minimal impact on Mr. Littles privacy interest was fully
    warranted on the evidence.  He stresses that a determination of the nature of
    the privacy interest engaged and the impact of the breach on that privacy
    interest on a persons s. 8 rights demand a fact-specific case-by-case inquiry.
    Mr. Siebenmorgen points to the trial judges factual findings on her s. 8
    ruling.  He argues that those findings were available to her on the evidence
    and justify her subsequent characterization of the s. 8 breach as at the
    lowest end of the scale.

[8]

We think Mr. Siebenmorgen has the best of this argument.  Cases from the
    Supreme Court of Canada subsequent to the trial judges ruling,
e.g.

R.
    v. Vu
,

[2013] 3
    S.C.R. 657 and
R. v. Cole
,
[2012] 3 S.C.R. 34, support the case-by-case consideration of the nature of the
    privacy interest engaged and the impact of the s. 8 breach on that privacy
    interest.  As made abundantly clear in
Vu
and
Cole
, this
    case-by-case approach applies to searches of computers.

[9]

Several factual findings made by the trial judge particular to the
    evidence in this case diminished the appellants reasonable expectation of
    privacy and hence, the impact on his privacy rights of the s. 8 breach.  In our
    view, the trial judges finding is entitled to deference and should stand.  The
    evidence was properly received.

[10]

Mr.
    Little made several submissions on his own behalf.  He provided carefully
    written helpful submissions to the court and amplified those submissions in
    oral argument.  Mr. Littles arguments fall into three categories.

[11]

First,
    he attacks several submissions made by the Crown in his closing address as
    inaccurate and prejudicial.  In our view, the vast majority of the Crowns
    submissions were unobjectionable.  The Crown is entitled to make arguments that
    are open on the evidence even if the Crown did not specifically put those
    arguments to the appellant when he was testifying.  The failure to do so at
    most goes to the weight the jury might attach to the Crowns argument.

[12]

To
    the extent that the Crown overstated the evidence, we see no prejudice.  The jury
    was repeatedly told that the submissions of counsel did not constitute evidence
    and it was their recollection that must be relied on in determining the facts.
    We note as well that very experienced defence counsel did not object to the
    Crowns closing.  We would not give effect to this argument.

[13]

Mr.
    Littles second area of complaint arises out of the trial judges charge to the
    jury.  He argues that the trial judge made three factual errors in her
    instructions to the jury.  After considering each, we think there was only one misstatement
    of the evidence.  The trial judge told the jury that there was evidence that
    traces of blood from Julie Crocker, one of the victims, were found on the appellants
    shoelaces.  As we understand the evidence, while there was trace blood found on
    the shoelaces, it could not be identified as Ms. Crockers blood.

[14]

Considered
    in the context of the entirety of the blood evidence, we regard this as a minor
    error.  Furthermore, the jury had the blood evidence in chart form and no doubt
    would refer to the chart when considering the blood evidence and what
    inferences, if any, to draw from it.

[15]

The
    trial judge told the jury more than once that it was their recollection of the
    evidence which must govern their deliberations.  There was no objection.   Indeed,
    we think it quite remarkable given the length of this case and the very
    detailed review of the evidence provided by the trial judge, that she made only
    a single factual error.  Certainly, that error did not prejudice the appellant
    and is not enough to warrant a new trial.

[16]

The
    third argument put forward by the appellant arises out of the evidence of statements
    made by the victims, Ms. Menendez and Ms. Crocker.  Counsel compiled a chart
    summarizing those statements for the jury.  The chart was jointly prepared by
    counsel and presented to the trial judge as an appropriate way to put the
    evidence before the jury.  The appellants evidence about statements made by
    Ms. Menendez and Ms. Crocker was not summarized in that chart.  He submits that
    the absence of reference to his evidence is prejudicial and requires a new
    trial.

[17]

We
    must reject this submission.  First, we will not second guess considered tactical
    decisions made by counsel at trial.  Counsel were obviously content with the
    way the evidence of the statements was placed before the jury.  Second, the
    appellants evidence as it related to these statements was put to the jury,
    albeit in a different part of the trial judges instructions.  We see no
    prejudice or unfairness arising out of the way the trial judge dealt with the
    evidence of the statements made by Ms. Crocker and Ms. Menendez.

[18]

The
    appeal is dismissed.

Doherty J.A.

K. van Rensburg J.A.

M.L. Benotto J.A.


WARNING

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

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

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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.C., 2014 ONCA 307

DATE: 20140423

DOCKET: C54917

Hoy A.C.J.O., LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.C.

Appellant

Mark Halfyard, for the appellant

Gavin MacDonald, for the respondent

Heard: February 12, 2014

On appeal from the conviction entered on May 25, 2011 by
    Justice Ferguson of the Superior Court of Justice, sitting without a jury.

LaForme J.A.:

I.        INTRODUCTION

[1]

The appellant was convicted of sexual
    assault and sexual exploitation of his neighbours five-year-old daughter while
    she was at his house with his children on September 2, 2009. The complainant,
    J.E.-J. alleged that, in the course of tickling games  described at trial as
    tickle monster and zerbert monster  that she and the appellant played, he
    performed oral sex on her and digitally penetrated her.

[2]

Forensic analysis revealed the presence of amylase, a component found in
    high levels in saliva, and the appellants DNA on J.E.-J.s underwear. The
    trial judge found that the DNA and amylase were from the appellants saliva,
    and not any other bodily fluid. In her reasons she finds that she is in
    agreement with [the forensic expert] that the saliva was not transferred onto
    the underwear by any means other than oral sex by the appellant. She came to
    this conclusion, however, based on a misapprehension of the expert evidence. I
    will say more about this later since it underpins what I think is a persuasive
    ground of appeal.

II.       BACKGROUND

[3]      The appellant and his family were close
    neighbours of J.E.-J. and her family. The appellants daughter, M.C., and J.E.-J.
    were best friends. At the time of the offences, they were six and five years
    old, respectively. M.C. and her younger brother would often visit J.E.-J.s
    home, and J.E.-J. and her younger sister also spent time at M.C.s home.

[4]      On September 2, 2009, M.C. and her younger
    brother were playing at J.E.-J.s home. At approximately 5:30 p.m., the
    appellant arrived there to bring his children home for dinner. He invited
    J.E.-J. and her sister to come play with his children after dinner. At around
    6:30 p.m., J.E.-J. came to the appellants home with her sister. She was
    wearing a sun dress and underwear. The appellants wife was not at home during
    J.E.-J.s visit because she was at a softball game. J.E.-J. returned home later
    that evening. She did not change her underwear that night and was wearing the
    same pair the following day.

[5]      Around mid-afternoon on September 3, J.E.-J.
    and her family went to visit her grandmother. During the visit, J.E.-J.
    disclosed to both her mother and grandmother that the appellant had touched
    [her], given her zerberts on her vagina, and digitally penetrated her. J.E.-J.s
    mother contacted J.E.-J.s father; once he arrived, they went to the police
    station together.

[6]      The police took J.E.-J. to the Lakeridge
    Health Centre where at around 6:00 p.m. her underwear was seized and later
    submitted to the Centre for Forensic Science for examination. Testing done on
    her underwear detected the appellants DNA on the waistband and the front panel
    of her underwear.

III.      EVIDENCE AT TRIAL

(a)

The complainants statement

[7]      J.E.-J. gave a videotaped statement to the
    police on September 4, two days after the incidents. The video was admitted at
    trial for the truth of its contents.

[8]      J.E.-J. stated that she, the appellant and his
    children had been playing games called tickle monster and zerbert monster. As
    she described the games, the appellant chased the children and tickled them or
    blew zerberts on them

the appellant
    would apply his lips to the skin and blow air to make a noise.

[9]      During the game, J.E.-J. chased the appellant
    into his bedroom, where he blew zerberts on her stomach, her underwear, and
    then her vagina. She stated that he put his finger in her vagina, and that she
    told him to stop. The appellant, she said, put her hand down his pants and
    forced her to touch his penis, but that she did not see his penis.

[10]    The appellants two children were both in the
    room at the time of the incidents, but J.E.-J. said that they did not see
    anything. The appellant told J.E.-J. that the game was a secret.

(b)

The appellants statement

[11]    The appellant did not testify at trial, but his
    videotaped interview with police, which he provided on September 4, 2009, was
    entered into evidence. In it he confirmed that he played tickle monster and
    zerbert monster with the children, and that he gave J.E.-J. zerberts on her arm
    and tummy. He said that he cannot remember being alone on the bed with J.E.-J.

(c)

Viva voce
evidence

[12]    J.E.-J., her mother, her friend (the
    appellants daughter) M.C., and Margaret Henry, an expert in forensic biology,
    testified at trial. The defence called no evidence.

[13]    J.E.-J., seven years old at the time of trial,
    testified that the appellant used his tongue when giving her zerberts and that
    he touched her vagina with his tongue. She explained that M.C. and her brother
    were running in and out of the room, and that the appellant would stop whenever
    they entered the room. She maintained, contrary to her prior statement, that
    she had seen the appellants penis, and she provided a detailed description of
    it.

[14]    M.C. also provided a video statement shortly
    after the incident, and that statement was adopted at trial. M.C. testified
    that she joined the appellant and J.E.-J. in the game after she had finished
    cleaning her room. She recalled that the appellant blew four or five zerberts
    on J.E.-J.s stomach while J.E.-J. was on the bed, but she only saw one and
    heard the others. M.C. later testified that she could not remember how many
    zerberts had been given.

[15]    J.E.-J.s mother, C.E.-J., testified that her
    daughter disclosed to her that she had been assaulted by the appellant on the
    day after the incidents. C.E.-J. recalled that, on the night of September 2,
    J.E.-J. got out of bed several times and couldnt get settled. While at her
    grandmothers on September 3, J.E.-J. told her mother that the appellant was
    blowing zerberts on [her] nunu and he touched [her]. C.E.-J. also testified
    that, while her daughter mostly watched childrens programs, she would
    sometimes watch T.V. unsupervised. This was confirmed in J.E.-J.s testimony,
    where J.E.-J. indicated that she had also seen adult shows like
Everybody
    Loves Raymond.
According to C.E.-J., her daughters world shattered when
    her allegations ended her friendship with M.C.

[16]    Margaret Henry  the forensic biology expert
    testified that tests had been performed on three areas of J.E.-J.s seized
    underwear: (i) the crotch, (ii) the front panel, and (iii) the waistband. The
    DNA of a major male profile, which the appellant did not dispute was his,
[1]
was recovered from the waistband and from the front panel. None of the
    appellants DNA was recovered from the crotch.

[17]    Ms. Henry explained that the deposit on the
    front panel contained a mixture of DNA from J.E.-J. and from the appellant. The
    front panel had a total of approximately 322 nanograms of DNA. Testing also
    found DNA from J.E.-J. and the appellant on the waistband, as well as DNA from
    another individual that was not suitable for analysis because there was very
    little of it. The waistband contained approximately 24 nanograms of DNA. Ms.
    Henry did not say in either case how much of the DNA was the appellants.

[18]    All three areas of the underwear tested
    positive for amylase, a digestive enzyme that is found in a number of bodily
    fluids, including perspiration. It is found in especially high levels in
    saliva. However, Ms. Henry was clear that amylase staining and the presence of
    DNA did not necessarily correlate, and that she could not say how much of the
    DNA originated from the same source as the amylase. In other words, if the
    amylase
were

from
    saliva, Ms. Henry could not say how much of the 322 nanograms of DNA originated
    from the saliva, and how much originated from another source.

[19]    Based on the reaction times and testing, Ms.
    Henry stated that the amylase deposits on the crotch and front panel were
    likely from saliva, while the amylase on the waistband could have been from a
    number of bodily fluids. She could not rule out secondary transference onto the
    underwear from saliva that was deposited on J.E.-J.s hand or stomach. In terms
    of the DNA found, however, Ms. Henry stated that, given the volume of DNA,
    there was likely a bodily fluid present.

[20]    I will say more about this evidence, especially
    the forensic evidence and the testimony of Ms. Henry, in my analysis below.

IV.     THE TRIAL DECISION

[21]    In finding the appellant guilty of sexual
    assault and sexual exploitation, the trial judge concluded that J.E.-J. was a
    credible witness. She instructed herself to consider the credibility of J.E.-J.
    in the context of her age, pursuant to
R. v. W.(R.)
, [1992] 2 S.C.R.
    122, and
R. v. B.(G.)
, [1990] 2 S.C.R. 30, and to apply the principles
    of
R. v. W.(D.)
, [1991] 1 S.C.R. 742, in assessing whether the Crown
    had established its case beyond a reasonable doubt.

[22]    The trial judge found that J.E.-J.s best
    recollection of the events was in her police statement, and that the
    contradictions between this statement and her
viva voce
evidence did
    not warrant an adverse credibility finding. In her view, the inconsistencies
    were insignificant, and the videotaped statement was an accurate reflection of
    the events, and of inestimable assistance in ascertaining the truth:
R v.
    F. (C.C.)
, [1997] 3 S.C.R. 1183, at para. 21.

[23]    The trial judge rejected the defences argument
    that J.E.-J. had a motive to fabricate because she was seeking attention from
    her mother. She concluded that J.E.-J. did not learn about oral sex and digital
    penetration from television. She also found that there was some value in the
    corroborative evidence raised by the Crown, including evidence from M.C. and
    Ms. Henry.

[24]    Addressing the forensic evidence, the trial
    judge found that it was the appellants saliva, and not any other bodily fluid,
    that was on J.E.-J.s underwear. She was in agreement with Ms. Henry that the
    saliva was not transferred onto the underwear by any means other than oral sex
    by the appellant on J.E.-J.

[25]    The trial judge did not find the appellants
    position credible in light of all the evidence. She noted that his position was
    in contradiction with the expert evidence and that the appellants daughter
    confirmed that she saw her father tickling and blowing zerberts on J.E.-J.s
    tummy.

V.      THE ISSUES

[26]    The appellant challenges the trial judges
    decision on this appeal on three grounds. First, he argues that the trial judge
    misapprehended the nature of the forensic evidence. Second, he argues that the
    trial judges reasons for rejecting the appellants evidence were conclusory.
    Third, he contends that the trial judge failed to conduct her
W.(D.)
analysis in light of all the evidence that supported the defence.

[27]    The Crown argues that the trial judge did not
    make the errors complained of. But that even if she did misapprehend the
    evidence, the Crown says it was not essential to her credibility findings. That
    is, she thoroughly and carefully analyzed J.E.-J.s evidence and ultimately
    found that the evidence was credible and reliable.

[28]    The Crown submits that the trial judge observed
    that corroboration was not necessary, and that she was satisfied on the
    evidence before her that the appellant had committed offences for which he was
    convicted. The Crown says none of the errors alleged by the appellant regarding
    the forensic evidence were essential to her favourable credibility finding with
    respect to J.E.-J.

[29]    I believe the trial judge critically
    misapprehended the forensic evidence, including the testimony of Ms. Henry. As
    I will explain, she then relied on this misapprehended evidence to decide the
    crucial issues in this case: credibility and reliability. My analysis of this
    issue, I believe, disposes of the appeal and subsumes the other issues advanced
    by the appellant. I would, in the end, allow the appeal in order to prevent a
    miscarriage of justice.

VI.     ANALYSIS

[30]    The appellant submits that the trial judge
    misapprehended the forensic evidence in several respects. First, he argues that
    she incorrectly found the appellants DNA in the crotch of the J.E.-J.s
    underwear. Second, he argues that the trial judge incorrectly found that the
    entire 322 nanograms on the front panel of the underwear consisted of the
    appellants DNA, and was thus too much to be the result of transference. Finally,
    the appellant argues that the trial judge erred in finding that the reaction
    time and amount of amylase was consistent with saliva and not other bodily
    fluids. I find the first two arguments compelling, and thus do not find it
    necessary to address the third.

[31]    A misapprehension of evidence may refer to a
    failure to consider evidence relevant to a material issue, a mistake as to the
    substance of the evidence, or a failure to give proper effect to evidence:
R.
    v. Morrissey
(1995), 22 O.R. (3d) 514, at pp. 538-540. Here, the appellant
    argues that the trial judge made a mistake as to the substance of the evidence,
    and the mistake resulted in a miscarriage of justice.

[32]    Not every misapprehension of evidence renders a
    trial unfair and results in a miscarriage of justice. An appellate court must
    determine the nature and extent of an alleged misapprehension and its
    significance to the decision under review, whether a determination of
    admissibility or a final conclusion about guilt:
Morrissey
, at
    p. 541.

[33]    Where a misapprehension of evidence is advanced
    as a ground of appeal the standard of review applied is stringent. That is, the
    misapprehension must be material to the reasoning of the trial judge and must
    play an essential part in the reasoning process resulting in a conviction, not
    just in the narrative of the judgment:
R. v. Lohrer
, 2004 SCC 80,
    [2004] 3 S.C.R. 732, at para. 2. If such a material misapprehension is made
    out, it follows that the appellant did not receive a fair trial, and was the
    victim of a miscarriage of justice. This is so even if the evidence was capable
    of supporting a conviction:
Morrissey,
at p. 541.

(a)

The misapprehended evidence

[34]    The expert evidence, as I said earlier, consisted
    of opinions from a forensic biologist, Ms. Henry, who works at the Centre for
    Forensic Science in Toronto. Her expertise is in body fluids, DNA analysis and
    interpretation. Although I have gone through some of her evidence above, I will
    repeat it here in more depth, for convenience.

[35]    Two areas of J.E.-J.s underwear tested
    positive for amylase: one area encompassing the crotch and front panel of the
    underwear, and the other the waistband. Ms. Henry believed the amylase was from
    saliva, particularly in the crotch and front panel area, although she conceded
    that it was possible that there were other bodily fluids there that we didnt
    test for. Three pieces of the underwear were then tested for DNA  one from
    each of the crotch, the front panel and the waistband.

[36]    Ms. Henry testified that: (i) a moderate
    amount of DNA  24 nanograms  was recovered in the waistband area; (ii) a
    substantial amount of DNA  322 nanograms  was recovered in the front panel
    area; and (iii) only J.E.-J.s DNA was recovered from the inner lining of the
    crotch area. That is, the appellants DNA was not in the crotch of the
    underwear.

[37]    Regarding the substantial amount of DNA
    recovered from the front panel, Ms. Henry testified that it is a mixture of
    DNA from the complainant and the [appellant]. There was no evidence as to how
    much of the DNA belonged to the appellant, either as a direct measurement or a
    ratio. In cross-examination Ms. Henry accepted that if someone was to lick the
    vaginal area of someone and they put their underwear on, one would expect to
    see some transfer in the crotch of the underwear.

[38]    It is important to note that in addition to the
    underwear, an external vaginal swab was taken from J.E.-J. and was also tested
    for DNA. The only DNA recovered from the swab was attributable to J.E.-J.

(b)

The use by the trial judge

[39]    The trial judge interpreted the forensic
    evidence and found, among other things, that: (i) [T]here was a substantial
    deposit of DNA in the
crotch
area of J.E.-J.s underwear (322 ng) and
    a
significant
deposit in the waist band (24 ng) (emphasis added); and
    (ii) the 322 nanogram finding of DNA in the
crotch
area is too much
    to be the subject of a transference (emphasis added).

[40]    In her summary of the forensic evidence, the
    trial judge completely fails to distinguish between the three relevant areas of
    the underwear, which were tested by the expert. Specifically, the appellants
    DNA was located on the front panel and waistband; not in the crotch area. Her
    322 nanogram finding of DNA in the crotch area, again, was recovered from the
    front panel; not the crotch. And, less importantly, the waistband deposit was
    described by Ms. Henry as moderate, not significant.

[41]    Further, the trial judge appears to
    misunderstand the evidence when she wrote that the 322 nanogram DNA deposit is
    too much to be the subject of transference. The hypothetical the Crown provided
    to the expert presupposed both that the saliva had dried before transference
    and that the entire quantity

of the 322 nanograms was the appellants
    DNA. Ms. Henrys evidence was that transference would occur more readily if the
    saliva were wet. And, as the appellant correctly points out, the forensic
    evidence was that this deposit contained a mixture of J.E.-J.s DNA and the
    appellants DNA, thus making the possibility of transference much more
    plausible.

[42]    Finally, the trial judge makes no reference to,
    and does not include in her analysis, the evidence of the external vaginal
    swab, which had no DNA from the appellant.

[43]    The trial judge correctly recognized that this
    was a case that depended largely on credibility and reliability of witnesses.
    She instructs herself on the applicable law related to this, namely,
W.(D.)
and
R. v. B.D.
, 2011 ONCA 51, 273 O.A.C. 241. In addition, the trial
    judge correctly instructed herself that corroborative evidence need not
    specifically implicate the accused; however, the evidence must be capable of
    restoring the triers faith in the witnesss testimony:
R. v. Kehler
,
    2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-13. Unfortunately, she relied on
    evidence she misapprehended in conducting her credibility and reliability
    assessments.

[44]    The trial judges misapprehension of the
    forensic evidence becomes material to her reasoning through her use of it in
    two ways that play an essential part in her reasoning process. First, she
    relies on it to bolster the credibility and reliability of J.E.-J. Second, she
    uses this evidence and testimony to discredit and find unreliable the
    appellants denial given in his police statement.

(i)

The credibility of the complainant

[45]    The trial judge found that J.E.-J.s evidence
    was credible and reliable on the basis of her testimony alone. The Crown argues
    that it is clear that the trial judge was satisfied beyond a reasonable doubt,
    based on this evidence alone, that the appellant had committed the offences for
    which he was convicted, separate and apart from the testimony of the expert and
    the need for corroboration evidence.  I disagree.

[46]    In spite of the trial judges finding on
    J.E.-J.s evidence alone, she went to considerable lengths to find
    corroboration evidence. This included reliance on the evidence of the appellant
    and the forensic evidence. In my view, J.E.-J.s evidence had sufficient flaws
    to it such that it was prudent for the trial judge to look for, and rely on,
    evidence to corroborate it, even in light of the different standard for
    credibility applied to child witnesses discussed above. In particular, I would
    point to J.E.-J.s trial evidence about seeing the appellants penis.

[47]    Her statement to the police  which the trial
    judge preferred over her evidence at trial, and which the trial judge described
    as an accurate reflection of the events and as of inestimable assistance in
    ascertaining the truth  includes the following:

Q:      No? Okay. Have you ever seen [the accuseds]
    private parts?

A:      No.

Q:      No? Okay. Have you ever touched [the
    accuseds] private parts?

A:      No.

Q:      Okay. Has [the accused] ever asked you to touch
    his private parts?

A:      Yes, that was on Wednesday, but I didnt want to.

[48]    There can be no doubt that the issue of whether
    or not the J.E.-J. saw the appellants penis was a specific focus of the police
    inquiry. The account by J.E.-J. completely changed when she testified at trial.

[49]    Her evidence at trial was that she saw the
    accuseds penis, which she described in some detail, including making a gesture
    indicating its size. She testified that she saw it when he was rubbing his
    finger in her vagina. When the Crown inquired as to why she did not tell the
    police officer about seeing the accuseds penis, she did not offer an
    explanation. She did not know why.

[50]    In spite of this, the trial judge held that
    this did not negatively impact on her credibility. Using language from the
    Supreme Court in
R. v. F.(C.C.)
, [1997] 3 S.C.R. 1183, at para. 47, the
    trial judge finds that the inconsistencies are insignificant" and finds
    the video more reliable than the evidence elicited at trial. Again, she
    relies on videotaped evidence made within two days of the events as accurate
    and as of inestimable assistance in ascertaining the truth, and rejects the
    evidence elicited in cross-examination.

[51]    The trial judge acknowledged that there were
    inconsistencies in J.E.-J.s testimony, especially her evidence about the
    appellants penis. She dealt with it as follows:

While I must heed these inconsistencies:
R. v. Stewart,
    supra
, I do not find that they have an adverse inference against the
    witness credibility:
R. v. B.(G.), supra. R. v. W. (R.)
.,
supra
.
    Moreover, in accordance with
R. v. Stewart, supra,
and
R. v. B
    (R.W.), supra,
I do not find that the inconsistencies, while central to
    the charges, diminish the reliability of J.E.-J.s evidence. In particular, to
    reiterate
R. v. B.(G.), supra
: While children may not be able to
    recount precise details and communicate the when and where of an event with
    exactitude, this does not mean that they have misconceived what happened to
    them and who did it. Further, to repeat Justice Watt in
R. v. H.C.
,
supra
,
    Flaws, such as contradictions, in the testimony of a child may not toll so
    heavily against credibility and reliability as equivalent flaws in the
    testimony of an adult.

I therefore find that J.E.-J was a credible witness and
    accurately recounted what happened to her that evening, despite the minor
    inconsistencies of the location(s) of the other children during the sexual
    assault and her failure to tell the police officer that she had viewed the
    accuseds penis. I find that the accused did perform oral sex and digital
    penetration on J.E.-J. and forced her to touch his penis.

[52]    The evidence about his penis, however, is not a
    detail of the when and where of the assault, nor is this a contradiction; it
    is about the nature of the assault itself. It is the kind of inconsistency that
    should engender caution as to the reliability of the witness, even a child
    witness. While the trial judge says that she does not need corroboration
    evidence to rely on and believe J.E.-J.s testimony, as I said earlier, I think
    it was prudent in these circumstances to search for some.

[53]    The trial judge held that: J.E.-J.s account
    of the [appellant] licking and zerberting her vaginal area is corroborated by
    Ms. Henrys evidence. I find, in agreement with Ms. Henry, that the saliva was
    not transferred onto J.E.-J.s underwear by touch or any means other than the
    performance of oral sex by the accused on J.E.-J.

[54]    Unfortunately, the trial judges interpretation
    of Ms. Henrys evidence, which she relied on to corroborate J.E.-J.s police
    statement account, is based on a serious misapprehension. To repeat, there was
    no DNA from the appellant recovered in the crotch area of the underwear. And,
    as Ms. Henry testified; if someone was to lick the vaginal area of someone and
    they put their underwear on, one would expect to see some transfer in the
    crotch of the underwear. Ms. Henry also could not rule out the possibility of
    transference or the presence of another bodily fluid other than saliva, as
    discussed above.

[55]    In my view, rather than corroborating the
    account given by J.E.-J., Ms. Henrys evidence casts some doubt on it. Ms.
    Henrys evidence  correctly apprehended  would not give comfort to the trial
    judge that J.E.-J. can be trusted in her assertion that the appellant licked
    and zerberted her vaginal area as the trial judge found. The trial judges
    misapprehension of Ms. Henrys evidence, relied on to corroborate J.E.-J.s
    allegations, is material to her reasoning and played an essential part in the
    reasoning process resulting in a conviction.

(ii)

The credibility of the appellant

[56]    The trial judge first breaks down the
    appellants statement to the police and lists specific portions of it. These
    include:

·

they had been playing tickle monster and zerbert monster throughout
    the house, including the master bedroom;

·

he gave J.E.-J. zerberts on her arm and tummy;

·

When asked if he gave J.E.-J. a zerbert on her bare belly he
    answered [u]m, if  well like not on purpose, but I mean say were just
    playing around, like same with my daughter if  if- I dont know; and,

·

he was never on the bed alone with J.E.-J. when he gave her a
    zerbert on her belly.

[57]    The trial judge found that, on all of the
    evidence, the appellants denial was not credible. She found that it is in
    contradiction with the expert evidence. Furthermore, she wrote that [h]is
    daughter confirmed that she saw her daddy tickling and zerberting her friends
    tummy.

[58]    I disagree with the trial judges analysis. Rather
    than contradicting the denial of the appellant, the trial judge could
    reasonably have interpreted Ms. Henrys evidence as confirming the appellants
    version of events. Her evidence that the appellants DNA was recovered on the
    waistband and front panel of J.E.-J.s underwear are not counter to his account
    of giving J.E.-J. zerberts on her arm and tummy. And, her evidence that his
    DNA was not recovered from the crotch area is capable of supporting his denial
    of the allegations.

[59]    Ms. Henrys evidence  correctly apprehended
    was capable of giving some comfort to the trial judge that the appellant could
    be trusted in his denial of licking and zerberting her vaginal area. The trial
    judges misapprehension of Ms. Henrys evidence, which she relied on to weaken
    the veracity of the appellants denial, is material to her reasoning and played
    an essential part in the reasoning process resulting in a conviction.

[60]    I would add that the trial judges reliance on
    the appellants daughter [seeing] her daddy tickling and zerberting her
    friends tummy as confirmatory evidence is troubling. It only confirms what he
    has admitted to, namely, he gave J.E.-J. zerberts on her arm and tummy.
    Again, rather than providing a basis to disbelieve the appellant, it actually
    is in line with his version of events.

[61]    Finally, I would also point out that the
    results of the external vaginal swab  which the trial judge did not consider
    are at odds with J.E.-J.s account of the appellant licking and zerberting her
    vaginal area. On the other hand, the results tend to support the appellants
    denial that he did so. To repeat, forensic testing recovered DNA from only
    J.E.-J.; none from the appellant. While, as Ms. Henry pointed out, this could
    be explained by the lapse of time between when the alleged assault occurred and
    when the swab was taken the following afternoon, there is no indication that
    the trial judge considered this piece of evidence at all in her reasoning.

VII.    CONCLUSION

[62]    The trial judge, as I said, correctly observed
    that this case depended largely on credibility. Accordingly, it was important
    for the trial judge to ensure that the Crowns requisite burden of proof was
    met through credible and reliable evidence. This, as she correctly noted,
    required her to follow the principles mandated in
W.(D.)
and
B.D.
While the trial judge seems to have followed these principles when assessing
    the evidence and concluding that the appellant was guilty, she unfortunately did
    so by deciding the issues of credibility and reliability based on a misapprehension
    of critical evidence material to these issues.

[63]    Had the trial judge considered all of the
    evidence, and apprehended the forensic evidence and testimony of Ms. Henry
    correctly, it would have been apparent to her that at its highest the evidence
    was nonaligned. That is, it confirmed that the appellant did zerbert J.E.-J.s
    tummy, as he admits and J.E.-J. contends. It does not, however, confirm that
    the appellant pulled her underwear down, touched his lips to her vagina, [o]n
    the skin, and blew zerberts on it.  Indeed, some of Ms. Henrys evidence and
    the results of the external vaginal swab tend to support the opposite.

[64]    Apprehending the forensic evidence correctly,
    the trial judge could arguably have concluded her
W.(D.)
analysis very
    differently. First, the correct forensic evidence might have provided a basis
    for her to believe the denial of the appellant, or at least have a reasonable
    doubt as to his guilt. Second, the evidence apprehended correctly could have
    led the trial judge to conclude that the evidence proffered by the Crown was
    insufficient to prove beyond a reasonable doubt that the appellant is guilty of
    the offences charged.

[65]    Having decided this appeal as I have, it
    becomes unnecessary for me to specifically address the remaining two grounds
    advanced by the appellant. In many respects the additional grounds are
    incorporated into the foregoing analysis and conclusions.

VIII.   DISPOSITION

[66]    For these reasons I would allow the appeal, set
    aside the conviction and order a new trial.

Released: AH April 23, 2014

H.S. LaForme J.A.

I agree. Alexandra
    Hoy A.C.J.O.

I agree. G. Pardu
    J.A.

[1]
The dispute was on the issue of transference, quantity, quality and location of
    the biological samples that were obtained, rather than whether it was the
    appellants DNA. Given this, I will refer to the major male profile as the
    appellants DNA.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ma, 2014 ONCA
    259

DATE: 20140402

DOCKET: C53765

Sharpe, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zi Hang Ma

Appellant

A. Bryant as agent for Howard Krongold, counsel for the
    appellant

F. Au, for the respondent

Heard: April 1, 2014

On appeal from the conviction and sentence imposed by Justice
    Bruce A. Glass of the Superior Court of Justice, dated July 4 and September 1,
    2010 respectively, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The Crown concedes that there was an error in the jury charge in
    relation to party liability for manslaughter and that the appeal should be
    allowed and a new trial ordered.

[2]

We agree and so order.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mammadov, 2014 ONCA 328

DATE: 20140428

DOCKET: C54199

Weiler, Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mehman Mammadov

Appellant

Sonya Shikhman, for the appellant

Daniel Guttman, for the respondent

Heard: April 22, 2014

On application for leave to appeal the Summary Appeal
    Court decision entered on July 25, 2011 by Justice
Faye E.
    McWatt
of the Superior Court of Justice dismissing the appeal from the conviction
    entered on August 12, 2009 by Justice Wright of the Ontario Court of Justice,
    sitting without a jury.

ENDORSEMENT

A.

overview

[1]

The applicant seeks leave to appeal the dismissal of his appeal by the
    summary appeal court judge from his conviction for impaired driving. In order
    to obtain leave, the applicant must raise a pure question of law. Even if a
    pure question of law is raised, the putative issues must either have
    significance to the administration of justice beyond the particular case or
    demonstrate a clear error on a matter of law such that leave is essential to
    maintain confidence in the justice system:
R v. R.R.
[2008] O.J. No.
    2468, at para. 37.

[2]

In his factum, the appellant submits that the trial judge committed two
    errors. The first is that the trial judge erred in not granting a stay under s.
    24(1) of the Charter for the conceded violation of the appellants right to be
    free from unreasonable search and seizure. The second is that the charges ought
    to be been stayed because there was a violation of the appellants right to be
    tried within a reasonable time under s. 11(b) of the
Charter
. The
    second argument was abandoned prior to the hearing of this appeal.

[3]

In order to appreciate the issues, it is helpful to provide a brief
    summary of the facts and the trial judges decision.

B.

Facts and decision at first instance

[4]

On March 29, 2009, at about 12:30 a.m., an eyewitness saw the appellant
    driving southbound in the northbound lane on Yonge Street. The eyewitness also
    saw the appellant crash into a traffic sign when he tried to drive across the
    traffic island dividing the southbound and northbound lanes. The eyewitness
    then saw the appellant leave his car, walk across the roadway, throw items into
    a nearby wooded area, and then return to his car. The eyewitness called police
    and waited for them to arrive. When P.C. Cohen arrived, the appellant left his
    car and tried to run away. His attempt to run proved unsuccessful, partly
    because the appellant was intoxicated. P.C. Cohen arrested the appellant and
    took him to 32 Division, where he provided two breath samples.

[5]

After the investigation was completed, the appellant was strip searched
    and lodged in the cells at 32 Division until police deemed him sober enough to
    be released. The strip search had nothing to do with the process by which the
    evidence against the appellant was gathered or with the investigation. Rather,
    P.C. Cohen was worried that the appellant was carrying something that the
    appellant might use to harm himself.

[6]

However, Sgt. Brasco, the officer in charge, testified that once he made
    the determination to lodge an individual in cells, that person would be
    subjected to a strip search as a matter of routine. Upon learning this, the
    Crown properly conceded a violation of s. 8 of the
Charter
. The
    appellant then acknowledged that he had been impaired but submitted that he was
    entitled to a stay of the charge pursuant to s. 24(1).

[7]

The trial judge refused to grant a stay and convicted the appellant. She
    was alive to the requirement that a stay is only appropriate in the clearest
    of cases where the prejudice to the accuseds right to make full answer and
    defence cannot be remedied or where irreparable prejudice would be caused to
    the integrity of the justice system if the prosecution continued. In this case the
    decision whether to grant a stay turned on the latter requirement.

[8]

The trial judge stated that the strip search had no impact on the
    fairness of the appellants trial or his ability to make full answer and
    defence. It had nothing to do with the process by which evidence against him
    was gathered. No evidence was obtained as a result of the violation.

[9]

In connection with whether irreparable prejudice would be caused to the
    integrity of the justice system if the prosecution were to continue, the trial
    judge considered the gravity of the breach and the manner in which the search
    was conducted.

[10]

Dealing
    with the manner in which the search was carried out, the trial judge commented
    that the search was carried out in a private room where the appellant was given
    the opportunity to remove his clothing himself and the procedure followed by
    the officers ensured that the appellant was never completely naked. P.C. Cohen
    was clearly sensitive to the intrusive nature of a strip search and took
    whatever steps he could to minimize the inherent traumatic effects that flowed
    from a strip search.

[11]

With
    respect to the gravity of the breach, the trial judge noted that a systemic
    search such as that conducted here was a flagrant violation of the accuseds s.
    8 rights. She added, It is equally significant to my analysis that this is not
    a case in which the police lacked the reasonable and probable grounds to
    conduct a search of Mr. Mammadov. She observed that a concern for the
    appellants safety could reasonably arise from the following circumstances: (1)
    he had disposed of unknown items at the scene of the collision; (2) he had
    tried to flee; (3) he was severely impaired; and (4) he vomited twice while in
    custody.

C.

ARgument and analysis

[12]

It
    is the additional portion of the trial judges reasons referred to in the
    paragraph above that the appellant submits discloses an error of law, an error
    of law that he contends tainted the trial judges conclusion to refuse to grant
    a stay.

[13]

The
    appellants argument on this point may be summarized as follows. The trial
    judge did not properly apply the test in
R. v. Golden
[2001] 3 S.C.R.
    679, which holds at para. 97 that only if there is objective evidence to
    justify a strip search of an accused person can one be conducted. The appellant
    submits that, as the trial judge did not allude to the test in
Golden
,
    she did not look for objective confirmation of Cst. Cohens subjective concern
    for the appellants safety. The circumstances articulated by the trial judge
    only gave rise to a generalized concern for the appellants safety and did not
    amount to objective evidence of the likelihood that the appellant had secreted
    anything with which he could harm himself.

[14]

We
    do not agree that the circumstances described by the trial judge can be placed
    in such watertight compartments. In this particular case we think that they
    amount to the same thing. The cumulative circumstances set out by the trial
    judge gave rise to a concern for the appellants safety and amounted to
    reasonable and probable grounds to strip search him. They therefore meet the
    objective standard required by
Golden
.

[15]

The
    summary appeal court judge found no error in the approach taken by the trial judge.

[16]

We
    see no error of law. The trial judge did not err in principle in exercising her
    discretion to refuse to grant a stay. Therefore there is no basis for granting
    leave to appeal.

D.

Disposition

[17]

The application for leave to appeal is dismissed.

K.M. Weiler J.A.

K. Feldman J.A.

E.E. Gillese
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manitowabi, 2014 ONCA 301

DATE: 20140422

DOCKET: C52295

Doherty, Goudge and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dakota Manitowabi

Appellant

Michael Lacy, for the appellant

Jennifer Woollcombe and Michael Fawcett, for the
    respondent

Heard:  February 12, 2014

On appeal from the conviction entered by Justice Robert
    G. S. Del Frate of the Superior Court of Justice, sitting without a jury, on
    January 13, 2009, and from the sentence imposed on July 17, 2009.

Doherty J.A.:

I

overview

[1]

The appellant was charged with first degree murder.  He was 16 years old
    at the time of the alleged offence.  The trial proceeded before a Superior
    Court judge sitting in Youth Justice Court without a jury.

[2]

The appellant admitted that he stabbed and killed Mr. Cory Roy.  The
    Crown argued that the stabbing was a planned and deliberate murder.  The
    appellant, who testified, advanced several defences, including self-defence and
    accident.  However, on the evidence, the crucial question was whether the Crown
    had proved that the appellant had the state of mind required for murder, and
    specifically whether the Crown had proved that the appellant foresaw the
    likelihood that Mr. Roy would die as a consequence of the stabbing as required
    by s. 229(a)(ii) of the
Criminal Code
.

[3]

The trial judge acquitted the appellant on the charge of first degree
    murder but convicted him of the included offence of second degree murder.  The
    Crown successfully applied to have the appellant, who was almost 20 years old at
    the time of sentencing, sentenced as an adult.  The trial judge imposed the mandatory
    adult sentence of life imprisonment without eligibility for parole for seven
    years.  After conducting a placement hearing, the trial judge ordered that the
    appellant serve his sentence in a federal penitentiary.

[4]

The appellant appeals conviction and sentence.  On the conviction
    appeal, counsel alleged various errors in the trial judges reasons.  However, in
    oral argument, counsel focused almost exclusively on the application to admit
    fresh evidence.  Counsel submitted that the fresh evidence offered on appeal established
    that the appellant suffered from Fetal Alcohol Spectrum Disorder (FASD) at
    the time of the homicide.  Counsel further argued that FASD is a neurodevelopmental
    disorder that can impair ones ability to foresee the consequences of ones
    actions.  Counsel contended that the evidence of the appellants FASD, combined
    with the evidence led at trial that was relevant to his mental state, could reasonably
    have left the trial judge with a doubt as to whether the Crown had proved that
    the appellant foresaw death as the probable consequence of his actions.
    Counsel argued that a new trial is necessary so that the appellant can have an
    opportunity to put the evidence relating to his FASD before a trial judge.

[5]

Counsel also relies on the fresh evidence on the sentence appeal.  He submitted
    that if that evidence is not admissible on the conviction appeal, it should be
    received on the sentence appeal.  Counsel argued that the fresh evidence,
    combined with the extensive evidentiary record at the sentencing hearing,
    establishes that the appellant should have received a youth sentence rather
    than the adult sentence imposed by the trial judge.

[6]

I would dismiss the conviction appeal.  I see no error in the trial
    judges reasons.  The fresh evidence establishes that the appellant suffers from
    FASD and that FASD is relevant to the state of mind inquiry.  However, the
    fresh evidence fails to provide a basis upon which a trier of fact could
    reasonably conclude that the appellants FASD had an effect on his
    understanding of the probable consequences of stabbing the victim.

[7]

I would also dismiss the sentence appeal.  The fresh evidence adds
    little, if anything, to the information about the appellant that was available
    to the trial judge.  On that information, the sentence imposed was appropriate.

II

the evidence at trial

[8]

Cory Roy and his wife were entertaining family at their home on the
    Wikwemikong reserve on Manitoulin Island.  Mr. Roys baby boy was to be baptised
    later that week and the family had gathered to celebrate the occasion.  The
    partygoers were drinking and socializing inside the house, on the outdoor patio
    and in the driveway.

[9]

Sometime during the evening, probably after 9:30 p.m., the appellant
    appeared at the party.  He had not been invited and did not know anyone there.
    The appellant socialized with several people.  He was friendly and nothing
    untoward happened.  Shortly after his arrival, Mr. Roy spoke to the appellant
    and asked him to leave, indicating that it was a family gathering.  He
    suggested that the appellant could return the next week.

[10]

The
    appellant did not leave but continued to talk to some of the guests.  Mr. Roy
    went back into the house.  A short time later, the appellant left the party to
    talk to five or six teenagers who were walking on the road in front of the
    house.  He returned to the party about five minutes later.  Mr. Roy again asked
    the appellant to leave and suggested he join his friends on the road.

[11]

At
    least one guest at the party testified that the appellants demeanour changed
    when he returned from visiting his friends.  He seemed nervous and was acting
    like a gangster.  The appellant was wearing various bandanas and said that he
    was a member of a gang.  He also removed a large knife from his pocket.

[12]

Mr.
    Roy approached the appellant and again told him to leave the family gathering.
    He raised his voice and may have placed his hand on the appellants shoulder.
    The appellant pulled out the knife, said yo whats this? and stabbed Mr. Roy
    once.  The appellant immediately fled the scene.

[13]

The
    stabbing occurred at around 11:00 p.m.  The appellant arrived at Percy Simons
    house about one kilometre from the Roy residence very shortly after the
    stabbing.  According to Rozelyna Trudeau, who was at Simons residence, the
    appellant knocked on the door and said:

Hey, let me in, let me in, I gotta hide, let me in, I stabbed
    somebody.

[14]

Ms.
    Trudeau described the appellant as acting as though he was proud of what he had
    done.  He kept repeating his claim that he had stabbed someone.  Mr. Simon
    refused to allow the appellant into his home, telling him that he did not want
    the police around his house.

[15]

The
    appellant was arrested the next morning.  He had scratches on his face and a
    bruise on his neck.  Expert evidence indicated that the scratches on the appellants
    face were likely self-inflicted, although it was possible that they could have
    been caused by tree branches as the appellant was running through the woods.
    The bruise on the appellants neck was consistent with a relatively minor
    blunt force injury.

[16]

Mr.
    Roy died from a single stab wound.  The knife entered his abdomen and travelled
    on a downward trajectory through the small bowel and cut the right iliac
    artery, causing extensive bleeding.  He died approximately 15 minutes after being
    stabbed.

[17]

The
    knife was still in Mr. Roys body at the time of the autopsy.  The entire 19.7
    centimetre blade was buried in Mr. Roy.  He had no defensive wounds.

[18]

Mr.
    Roy had a blood alcohol level of .170.  Although the toxicologist could not say
    exactly how much Mr. Roy had to drink because of several unknown variables, he
    could say that Mr. Roy had quite a bit, perhaps as many as 16 regular beers in
    the seven hours preceding his death.  People who were at the party at the Roy
    residence indicated that Mr. Roy had been drinking but that he did not appear
    intoxicated.

[19]

The
    appellant testified.  According to him, he had smoked a considerable amount of
    marijuana with his aunt in the afternoon and started drinking alcohol at around
    5:00 p.m.  The appellant testified that he had no memory of anything that had
    happened between the early evening of the night Mr. Roy was stabbed and his
    arrest the next morning.  He claimed to have blacked out.  He had no
    recollection of ever having a knife, attending the party at Mr. Roys home,
    stabbing Mr. Roy, fleeing the scene of the stabbing, or going to Mr. Simons
    residence.

[20]

Some
    of the people who interacted with the appellant at the Roy residence testified
    that the appellant appeared to have been drinking.  He was staggering a bit and
    his speech was somewhat slurred.  Mr. Roys brother described the appellant as
    under the influence of alcohol, but not drunk.  Mr. Roys wife referred to him
    as a little drunk.  They all testified that the appellant was able to carry
    on coherent conversations about various topics and move about the party.

[21]

The
    trial judge rejected the appellants evidence that he had no recollection of
    the relevant events, describing it as selective and self-serving.

III

the conviction appeal

A:  The Reasons for Judgment

[22]

In his factum, counsel submitted that the trial judge made various
    errors in his reasons for judgment.  Most of these submissions were not pursued
    in oral argument.  The court did not call on the Crown to respond to any of
    these submissions.

[23]

The
    appellant alleged that the reasons for judgment are inadequate and do not admit
    of meaningful appellate review; that the trial judge misapprehended evidence;
    and that he improperly took judicial notice of the relationship between a
    persons apparent ability to function and a claim of alcohol-induced loss of
    memory.

[24]

Contrary
    to the appellants claim that the reasons for judgment fail to adequately
    describe the pathway to judgment, I read those reasons as cutting a very logical
    path to the courts ultimate judgment.  The trial judge began with a
    consideration of, and an acquittal on, the full charge of first degree murder.
    He acquitted on the basis that the Crown had not proved that the murder was
    planned and deliberate.  In the course of considering first degree murder, the trial
    judge indicated he was satisfied that the appellant had the requisite intent
    for murder.  He did not engage in any analysis of the evidence relevant to
    intent at that juncture.

[25]

Reasons
    for judgment must be read as a whole.  It cannot be taken from the trial
    judges reference to his finding on intent made in the course of his analysis
    of the appellants liability for first degree murder that the trial judge had
    decided the issue of intent without regard to the evidence relevant to that
    issue.

[26]

When
    the trial judge turned to the appellants liability for second degree murder,
    he considered the evidence relevant to the appellants state of mind at the
    time of the homicide, including the evidence of intoxication.  He referred to
    the legal principles applicable to evidence of intoxication and reviewed that
    evidence at some length.  He considered the appellants evidence to the effect
    that he was so impaired he had no recollection of the relevant events and
    ultimately, rejected that evidence because it was inconsistent with the
    evidence of several other witnesses about the appellants level of sobriety as
    reflected in his conduct.

[27]

The
    trial judges reasons make it crystal clear that he convicted the appellant of
    second degree murder because he was satisfied that the Crown had proved beyond
    a reasonable doubt that the appellant foresaw the fatal consequences of
    stabbing Mr. Roy in the abdomen.  The trial judge made that finding after considering
    the appellants conduct  he plunged a 19.7 centimetre knife blade into Mr.
    Roys stomach  and rejecting the defence contention that the appellant was
    very intoxicated when he stabbed Mr. Roy.

[28]

Counsel
    also alleged three misapprehensions of the evidence.  One arose out of the
    testimony of the appellant.  The trial judge mistakenly indicated that the
    appellant testified that he did not know whether his level of impairment would have
    prevented him from understanding the consequences of stabbing Mr. Roy.  In
    fact, the appellant testified that his impairment would not have prevented him
    from understanding the consequences.  The appellants answer to the question
    has little evidentiary value.  To the extent that the trial judge misapprehended
    the evidence, however, his misapprehension benefitted the appellant.

[29]

The
    other two alleged misapprehensions of the evidence, one relating to where Mr.
    Roy was stabbed (the chest or the abdomen) and the other to the expert evidence
    about the cause of scratches on the appellants face (self-inflicted or
    accidental), were interpretations of the evidence that were open to the trial
    judge.  In any event, neither alleged misapprehension was material to the outcome
    at trial.

[30]

Lastly,
    I turn to the submission that the trial judge improperly took judicial notice
    in assessing the evidence relevant to the appellants intoxication.  The trial
    judge found that the appellants professed inability to remember anything that
    had happened over many hours because of his alcohol and drug consumption was
    inconsistent with his level of intoxication, as reflected in his conduct before
    and after the killing.  The trial judge, relying on the evidence of several
    witnesses, concluded that while the appellant had been drinking and consuming
    marijuana before the stabbing, his demeanour and conduct did not suggest a
    level of impairment that had compromised his ability to comprehend his surroundings,
    understand what he was doing, and foresee the consequences of his actions.  In
    the trial judges assessment, the appellants level of intoxication, as
    reflected in his contemporaneous conduct, was inconsistent with the degree of
    intoxication the trial judge would associate with a total inability to recall anything
    that had happened over many hours.

[31]

The
    trial judges testing of the credibility of the appellants evidence about his level
    of impairment against the evidence of the various witnesses who described the
    appellants conduct immediately before and after the homicide is the kind of common
    sense approach expected of a trier of fact and does not amount to any form of judicial
    notice.  Counsels related argument that persons can be highly intoxicated
    without demonstrating a high level of impairment in their conduct is a valid argument.
    It is, however, no more than a valid argument and cannot be elevated to the
    level of an incontrovertible fact barring a trier of fact from drawing
    inferences about the level of impairment based on conduct.

B:  The Fresh Evidence

(i)

The issue

[32]

As outlined above, although several defences were advanced, the
    appellants state of mind when he stabbed Mr. Roy was the central factual issue
    at trial.  The Crown argued that the appellant had intended to cause bodily
    harm to Mr. Roy, knowing that death was the likely consequence when he stabbed
    him.  The defence, focusing on the appellants drug and alcohol-induced
    intoxication and his youth, maintained that the Crown had failed to prove that the
    appellant foresaw that Mr. Roys death was the likely consequence of the
    stabbing.  The appellants position rested to a significant degree on his own
    evidence about his alcohol and marijuana consumption in the hours leading up to
    the stabbing and his evidence that he had no recall of the relevant events.  The
    defence maintained that the inability to recall the events reflected the
    appellants very high level of intoxication.  The trial judge disbelieved the
    appellant and rejected this argument.

[33]

FASD
    was not mentioned during the trial proper.  In a psychiatric report prepared
    for sentencing purposes, the author raised the possibility that the appellant
    suffered from FASD.  The author noted that he could not make that diagnosis because
    evidence of maternal alcohol abuse during pregnancy could not be confirmed.
    The author further indicated that an FASD diagnosis would explain much of his
    [the appellants] features.

[34]

The
    psychiatrist testified in the sentencing proceedings.  He referred to FASD as
    manifesting itself in the same kind of behavioural problems  e.g., poor
    impulse control  as those associated with the appellants other difficulties,
    such as Attention Deficit Hyperactivity Disorder.  The doctor was not sure that
    the recognition of the appellants FASD added much to the picture of the
    appellants mental makeup.

[35]

In
    his reasons for sentence, the trial judge referred to the doctors assessment
    that the appellant may be suffering from a foetal alcohol syndrome disorder.
    He made no further mention of FASD.

[36]

Shortly
    before the appeal was initially scheduled to be heard, counsel for the
    appellant requested an adjournment to allow counsel an opportunity to present
    fresh evidence relating to the appellants FASD and its effect on his state of
    mind when he killed Mr. Roy.  Eventually, the reports of Dr. Stanley, a defence
    expert, Dr. Wright, an expert retained by the Crown, and the extensive
    examinations in-chief and cross-examinations of both experts were placed before
    the court on the fresh evidence application.  Counsel for the appellant also
    relied on some of the evidence adduced at the sentencing proceeding in support
    of the fresh evidence application.

[37]

Counsel
    significantly narrowed the legal and factual issues on the fresh evidence
    application.  On the legal front, counsel agree that the admissibility of the
    fresh evidence turns on whether the fresh evidence referable to the appellants
    FASD, considered in the context of the rest of the evidence adduced at trial, could
    reasonably be expected to have affected the verdict: see
Reference Re
    Truscott
, 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 99-100.  Counsel
    refer to this as the cogency requirement.  Although defence counsel at trial
    was aware of the possibility that the appellant suffered from FASD by the time
    of sentencing and did not pursue the relevance of FASD to the appellants state
    of mind, the Crown does not suggest that the absence of due diligence should
    factor into this courts decision on the application to adduce fresh evidence.

[38]

On
    the factual front, the Crown accepts the opinion of its expert, Dr. Wright, that
    the appellant likely suffers from FASD.  The Crown also accepts that Dr.
    Wrights opinion that the appellant suffers from FASD is admissible under the
    rules governing expert evidence and is relevant to the issue of the appellants
    state of mind at the time he killed Mr. Roy.  The Crown correctly observes,
    however, that compliance with the rules governing admissibility and relevance
    do not provide a ticket to admissibility on appeal.  The evidence must be
    sufficiently cogent to warrant its admission.

[39]

Counsel
    for the appellant candidly acknowledges that the cogency evaluation comes down
    in large measure to a consideration of the evidence of Dr. Wright, the Crowns
    expert.  Counsel does not rely on the evidence of his expert, Dr. Stanley, to
    the extent that Dr. Stanleys evidence is inconsistent with, or goes beyond,
    the evidence of Dr. Wright.  The outcome of the application to adduce fresh
    evidence, therefore, turns first on what Dr. Wright said and, second, on
    whether his testimony meets the cogency requirement described in
Re
    Truscott
.

(ii)

The evidence

[40]

FASD
    is a permanent neurodevelopmental disorder.  It is an umbrella term describing
    a range of effects that can occur in an individual whose mother drank alcohol
    during pregnancy.  Those effects can include physical, mental, behavioural and
    learning disabilities.  Fetal Alcohol Syndrome (FAS) describes the most
    severe manifestations of the disorder.  The appellant does not fall into the
    FAS category.

[41]

FASD
    impacts on executive functioning.  Executive functioning engages the more
    abstract forms of thinking, including the ability to maintain an appropriate
    problem-solving set for the attainment of goals.  Executive functioning refers
    to specific cognitive skills, including planning and mental representation.  An
    individual with an executive functioning deficit may display poor organizational
    skills and planning, a lack of concrete thinking and inhibition, difficulty
    grasping cause and effect, and an inability to delay gratification.  FASD in a
    particular individual may affect some but not other forms of executive
    functioning.

[42]

In
    his testimony, Dr. Wright explained that the term executive functioning is an
    ambiguous one referable to a wide variety of cognitive abilities.  Executive
    functioning deficits are brought about by a wide variety of causes, including
    various neurological disorders.  Deficits in executive functioning are
    inherently difficult to measure.  Where those deficits exist, it can be
    difficult to attribute the deficit to any single cause.  For example, any
    executive functioning deficit in the appellant might be explained by FASD, or
    attitudinal and family behaviour patterns, or a combination of many factors.

[43]

Dr.
    Wright also testified that levels of executive functioning are not static in
    individuals.  An individuals level of executive functioning will fluctuate and
    may rapidly decline in certain situations, as for example in situations of extreme
    emotional distress.  The effects of FASD on the executive functioning of a
    particular individual are also variable.  The nature and extent of the neurological
    disorder and the impact of that disorder on executive functioning vary from
    person to person who suffers from FASD.  In short, the impact of FASD on
    executive functioning will vary from individual to individual and will vary for
    the same person from situation to situation.

[44]

Clinical
    tests can provide some insight into the impact of FASD on an individuals executive
    functioning.  An individuals history may also assist in identifying the impact
    of FASD on executive functioning.  There is no evidence that any of these tests
    were done on the appellant, either before his sentencing, or in connection with
    this application to adduce fresh evidence.

[45]

Dr.
    Wright was questioned at some length about the effect of FASD on a persons
    ability to appreciate the cause and effect relationship between his actions and
    the consequences of those actions.  Dr. Wright agreed that there is a reduced
    contemplating of consequences in most people with executive functioning
    difficulties.  Dr. Wright also testified that in most cases FASD would not
    affect a persons ability to perceive basic or immediate cause and effect
    relationships, whereas it could interfere with the perception of more indirect or
    abstract cause and effect relationships.

[46]

Dr.
    Wright explained the distinction he drew by reference to a case from his practice.
    A person with FAS became angry, picked up a metal pole and began to smash a
    vehicle.  The people in the car were understandably terrorized.  Dr. Wright
    opined that the individual has the general intent of busting stuff up, but
    not the specific intent to terrorize these people.  He knew that damage to
    the vehicle would be the immediate consequence of his physical acts, but he did
    not contemplate the terrorized reaction of the persons in the vehicle, a more
    indirect consequence of his actions.

[47]

In
    re-examination, Dr. Wright testified as follows:

Q.  And therefore, would somebody with some executive
    functioning impairment, in your view, understand that stabbing somebody in the
    abdomen with a 19-centimetre knife and a[n] 8-centimetre blade would cause that
    person death or serious bodily injury?

A.    I see no reason why FASD would impair ones knowledge of
    that or understanding of that.

Q.    And let me clarify, serious bodily harm that was likely
    to cause death.  Not just serious injury, but serious injury that was likely to
    cause death.

A.     Yes.  I dont see how that disorder would cause you not
    to be able to understand that.

[48]

Dr.
    Wrights answers were consistent with his report in which he had indicated:

In essence this offence does not appear to involve executive
    functioning failure as much as value system consistent aggression that may well
    have been disinhibited by alcohol.

[49]

Counsel
    for the appellant further cross-examined Dr. Wright after his re-examination.  Dr.
    Wright agreed with counsels suggestion that the impact of FASD on executive
    functioning as it related to the secondary consequences of a persons actions
    raised a more complicated question than did the impact of FASD on an
    individuals potential criminal responsibility.  Dr. Wright indicated that FASD
    did not provide a basis for a finding that a person was not criminally
    responsible on account of a mental disorder, but could in some circumstances
    impact on the issue of an accuseds intention.

[50]

Dr.
    Wright also testified that impulsive conduct or conduct indicative of rage was
    more consistent with a person whose executive functioning was adversely
    affected by FASD.  He was not aware of any evidence that the appellant acted
    impulsively or in a rage when he stabbed Mr. Roy.  Rather, the evidence
    indicated that the appellant had armed himself with a deadly weapon at some
    point prior to the final encounter with Mr. Roy.

[51]

Both
    counsel persuasively advanced different interpretations of Dr. Wrights
    evidence.  Crown counsel argues that Dr. Wright went so far as to opine that
    the appellants FASD did not affect his executive functioning insofar as it
    related to his knowledge of the likely consequences of stabbing Mr. Roy.

[52]

Counsel
    for the appellant accepts that Dr. Wright did not, and could not, speak
    directly to the actual effect of FASD on the appellants state of mind when he
    stabbed Mr. Roy.  Counsel submits, however, that Dr. Wright acknowledged that
    FASD is relevant to a persons ability to foresee some consequences of that
    persons actions.  Counsel submits that Dr. Wrights acknowledgement that the
    appellants FASD is relevant to his ability to foresee consequences is
    sufficient to justify admitting the evidence on appeal and ordering a new
    trial.

[53]

Extracts
    from Dr. Wrights evidence, particularly his re-examination, offer support for the
    Crowns interpretation.  However, reading Dr. Wrights evidence as a whole, I
    think his evidence is inconsistent with the submission that he was able to
    assert definitively that the appellants FASD had no effect on his state of
    mind when he killed Mr. Roy.  As Dr. Wright explained, the impact of FASD on any
    particular aspect of executive functioning varies with the nature of the
    cognitive process in issue, the individuals particular neurodevelopmental
    disorder, and the specific circumstances of the case.  In light of these many
    variables and the absence of any form of testing of the appellant, I take the
    thrust of Dr. Wrights evidence to be that no one could say whether FASD had
    any impact on the appellants knowledge as to the likely consequences of his
    actions when he stabbed Mr. Roy.

[54]

I
    read Dr. Wright as testifying that absent any evidence going specifically to
    the effect of the appellants FASD on his executive functioning, and given that
    the circumstances of the homicide to some degree contraindicated the influence
    of FASD, he saw no basis upon which to conclude that the appellants FASD had
    any effect on his ability to foresee the consequences of stabbing Mr. Roy.  Consequently,
    while I would not agree that Dr. Wright went so far as to say that FASD had no
    effect on the appellants state of mind, I think his evidence does go so far as
    to indicate that he could see no basis for concluding that the appellants FASD
    did have an effect on the appellants state of mind.

[55]

On
    my interpretation of Dr. Wrights evidence, this case is indistinguishable from
R. v. Walle
, 2012 SCC 41, [2012] 2 S.C.R. 438.  In
Walle
, the
    appellant shot the victim in the chest at close range and was convicted of
    second degree murder.  On appeal, counsel proffered psychiatric evidence to the
    effect that the appellant suffered from a variety of medical and psychiatric
    disorders, including Aspergers Disorder, Paranoid Personality Disorder, and
    Intermittent Explosive Disorder.  Counsel argued that the psychiatric evidence
    was relevant to the appellants state of mind when he fired the fatal shot and
    warranted a new trial.

[56]

Moldaver
    J., for the court, in holding that the evidence was inadmissible, stated, at
    paras. 85-86:

The main failing of the proposed fresh evidence is that
    nowhere does Dr. Duska [the appellants expert] suggest that the appellant, by
    virtue of his diagnosed disorders, may not have been aware of the consequences
    that were likely to follow upon shooting someone in the chest at close range.

If Dr. Duska was of the view that the appellants disorders may
    have impacted on his awareness of the consequences of firing a gun into a
    persons chest at close range, he could have prepared a report to that effect
    and filed it on this appeal.  He did not do so.  [Emphasis added.]

[57]

The
    same observation can be made about Dr. Wrights evidence.  He did not offer the
    opinion that the appellants FASD may have rendered him unaware of the
    consequences that were likely to follow from stabbing Mr. Roy.  Dr. Wrights
    evidence spoke on a general level about the potential effect of FASD on
    executive functioning.  To the extent that he could apply that general
    observation to this case, he saw no basis to conclude that the appellants FASD
    impacted on his state of mind and some basis in the circumstances of the
    homicide to conclude that it did not.

[58]

A
    trier of fact, armed with Dr. Wrights evidence, considered in the context of
    the trial evidence, would be reasonably able to conclude that:

·

the appellant suffers from FASD;

·

FASD can affect cognitive functions, including the ability to
    understand cause and effect;

·

the effect of FASD in a specific circumstance on an individuals
    various cognitive functions, including the ability to understand cause and
    effect, varies from person to person and from situation to situation; and

·

Dr. Wright saw no basis for concluding that the appellants FASD
    affected his ability to foresee the consequences of stabbing Mr. Roy.

[59]

A
    trier of fact, armed with the additional findings outlined above, could not
    reasonably be expected to have arrived at a different verdict than that returned
    at trial.  Evidence that FASD can, in some people, on some occasions, affect
    some forms of executive functioning, including appreciation of cause and effect
    relationships, could not materially advance the defence claim that the Crown
    had failed to prove that the appellant foresaw Mr. Roys death as a likely
    result of the stabbing.

[60]

The
    evidence proffered on appeal could not reasonably be expected to have affected
    the outcome at trial.  It is not admissible.

IV

the sentence appeal

[61]

The
    trial judge decided that the appellant should be sentenced as an adult.  In his
    reasons for doing so, he set out the applicable statutory regime and thoroughly
    reviewed, in the context of the applicable statutory factors, the extensive
    evidentiary record placed before him on sentencing.  I see no error in his
    review of the record or analysis of the pertinent factors.

[62]

The
    trial judge ultimately concluded:

I am satisfied that a youth sentence would not be of
    sufficient length to hold the young person accountable for his offending
    behaviour.  A youth sentence fails to take into account the seriousness of the
    offence and the [manner] in which it was conducted.  It also fails to consider that
    the offender was under a probation order and that the previous evening he was
    involved in a very serious and violent robbery.

In my view, the adult sentence will still provide the
    rehabilitation that will address the risks posed by the offender prior to his
    re-integration into society.  These programs are available in the institutions
    and the offender can continue to follow them.  I am not reasonably assured that
    the offender can be safely re-integrated into society.  Further, the adult
    sentence will protect society much more adequately than a youth sentence.

The Crown has succeeded in establishing that a youth sentence
    would not be in accordance with the sentencing principles enunciated by the
Youth
    Criminal Justice Act
.

[63]

Counsel
    submits that Dr. Wrights evidence that the appellant suffers from FASD
    diminishes his moral culpability for his conduct and, therefore, undermines the
    Crowns case for an adult sentence.

[64]

Moral
    culpability was a relevant consideration in determining whether the appellant
    should be sentenced as an adult.  To the extent that FASD impacts on the
    behaviour that attracts criminal liability, FASD, like other forms of cognitive
    impairment, can attenuate the moral blameworthiness attached to that
    behaviour.  It can also justify less emphasis on the principles of specific and
    general deterrence:
R. v. Ramsay
, 2012 ABCA 257, 292 C.C.C. (3d) 400,
    at para. 25.  However, as explained in my analysis of the admissibility of the fresh
    evidence, Dr. Wrights evidence does not permit a conclusion as to the impact,
    if any, of the appellants FASD on his behaviour when he stabbed and killed Mr.
    Roy.

[65]

The
    trial judge was aware of the possibility that the appellant suffered from FASD
    when he sentenced him.  He was also aware of the various cognitive and emotional
    challenges facing the appellant, many of which could be the product of FASD or
    other problems.  The fresh evidence offered on appeal lifted the possibility of
    FASD to a probability.  However, for the same reasons that the evidence could
    not assist on the conviction appeal, the evidence could not shed any new light
    on the appellants moral blameworthiness for stabbing Mr. Roy.  The fresh
    evidence affords no reason to vary the sentence imposed at trial.  I would
    dismiss the sentence appeal.

RELEASED:

APR 22 2014                                    Doherty
    J.A.

DD                                                  I
    agree S.T. Goudge J.A.

I
    agree C.W. Hourigan J.A.