COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McConville, 2017 ONCA 829

DATE: 20171031

DOCKET: C59954 and C61956

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas McConville

Appellant

Richard Litkowski, for the appellant

Michelle Campbell, for the respondent

Heard: May 2, 2017

On appeal from the conviction entered on July 3, 2012 and
    the sentence imposed on April 17, 2014 by Justice Gisele M. Miller of the Superior
    Court of Justice, sitting with a jury.

Huscroft J.A.:

OVERVIEW

[1]

The appellant was convicted by a jury of robbery, disguise with intent,
    dangerous driving, and failure to stop, all of the charges arising out of a
    bank robbery. The only issue at trial was the identity of the robber  in
    particular, whether it was the appellant or his brother, Shawn McConville. The
    appellant brought an alternative suspect application, which the trial judge
    allowed, and sought to implicate his brother. The appellant did not testify and
    Shawn McConville was not called as a witness.

[2]

A police officer saw the robber fleeing from the bank and later identified
    the appellant as the robber in a photo lineup. The jury accepted the officers
    identification evidence and convicted. The trial judge designated the appellant
    a dangerous offender and imposed an indeterminate sentence under s. 753(4.1) of
    the
Criminal Code
.

[3]

The appellant appeals both conviction and sentence. He makes three
    submissions as to the conviction:

1)

the trial judge erred
    in her instruction to the jury on eyewitness identification and, in particular,
    failed to take into account the theory of the defence in her instruction;

2)

the trial judge erred
    by reinforcing the Crowns improper suggestion that a police officers
    identification of the appellant was more reliable because he was a police
    officer; and

3)

the Crowns opening
    address to the jury prejudiced the appellants right to a fair trial.

[4]

The appellant does not contest his designation as a dangerous offender.
    However, he seeks leave to appeal his indeterminate sentence on two bases:

1)

the trial judge
    misapprehended psychiatric evidence concerning his risk to reoffend; and

2)

the trial judge erred
    by focusing on his risk of harm to the public in general, rather than the risk
    that he would commit a serious personal injury offence.

[5]

In my view, there is no basis to interfere with either the appellants
    conviction or sentence. I would dismiss the appeal for the reasons that follow.

BACKGROUND

[6]

Shortly before 1:00 p.m. on December 22, 2010, a man wearing a black
    balaclava, a grey hoodie, and gloves, and armed with a hammer, robbed a bank in
    Oakville. He jumped on the counter and banged on the locked tills with the
    hammer, then demanded keys from the customer service manager. He ran off with
    approximately $4,000 - $5,000.

[7]

Police Constable Tansley was directly across the street from the bank
    when he received a call about a robbery in progress. He saw the robber run from
    the bank and get into a grey Impala. The robber was alone.

[8]

PC Tansley noted the Impalas license plate and then attempted to open
    the cars driver side door to arrest the driver. His gun was drawn. He saw the
    robber up close and unmasked for approximately 10-20 seconds, before the robber
    sped away from the scene.

[9]

Another police officer pursued the grey Impala in her police cruiser.
    The officer was forced to break off the pursuit for safety reasons and the
    robber escaped. The grey Impala was found, abandoned, shortly afterwards. A
    balaclava was in the back seat of the car. It had the appellants DNA on it as
    well as DNA from a second person. The second DNA sample could not be tested. A
    grey hoodie and hammer were found nearby.

[10]

The
    appellants brother, Shawn, was in the vicinity of the robbery at the relevant
    time, approximately two kilometres from where the Impala was abandoned. He took
    a cab to Hamilton and was arrested when he reached his home. The appellant was
    arrested when he arrived at Shawns Hamilton home shortly thereafter.

[11]

PC
    Tansley returned to the bank to review the security footage and assist in the
    investigation. Later that same day, he picked the appellant from a photo
    lineup. The lineup did not include a picture of Shawn.

THE CONVICTION APPEAL

(1)

Did the trial judge err in her instruction to the jury on eyewitness
    identification?

[12]

The
    appellant contends that the trial judges charge to the jury was a standard
    eyewitness charge that was inadequate in the circumstances of this case. The
    trial judge highlighted that the description given by PC Tansley matched the
    appellant and that PC Tansley picked the appellant out of a lineup. But this
    was a single issue case: the only issue for the jury was whether the robber was
    the appellant or his brother Shawn. As a result, the trial judge should have
    directed the jury to consider how PC Tansleys identification evidence compared
    to Shawn McConville, and should have highlighted the ways in which PC Tansleys
    description matched Shawn as much as it did the appellant. Instead, the trial
    judge did not even mention Shawn in her instructions to the jury. Nor did the
    trial judge direct the jury to consider shortcomings in the photo lineup,
    including the absence of Shawns photo from the lineup.

[13]

I
    would reject this submission.

[14]

This
    was a very strong case. PC Tansley saw the appellant, up close, for 10-20
    seconds immediately following the robbery. Not only did PC Tansley identify the
    appellant in the lineup, he testified that Shawn was not the robber and, in
    direct and in cross-examination, explained differences in the appearance of the
    brothers. The direct and circumstantial evidence all implicated the appellant.

[15]

There
    was, at most, a mere possibility that Shawn McConville was the robber. The only
    evidence linking Shawn to the robbery was that he was picked up by a cab in
    Oakville shortly following the robbery, not far from where the robbery had
    occurred, and driven to Hamilton. The trial judge instructed the jury as
    follows:

It is the defence position that none of the evidence rules out
    the possibility that Shawn McConville could have committed this robbery. There
    is no evidence that Shawn McConville could not have had access to his brothers
    car. Shawn McConville could have used the balaclava conceivably left in the car
    by Thomas McConville. There was only one person seen in the bank during the
    robbery. There was only one person seen running to the get-away vehicle. There
    was only one person seen in the get-away vehicle and no one else was seen
    running away from the scene. Shawn McConville hailed a cab not far from the
    bank where the robbery occurred and Shawn McConville was arrested when he
    exited that Burlington based cab.

It is the defence position that while it is entirely possible
    and maybe even likely that Thomas McConville committed the robbery, it is also
    entirely possible, on the facts and evidence at trial, that Shawn McConville
    was the person who committed the robbery. Put another way, there is no reason
    why Shawn could not have committed the robbery and it is the defense position
    that that is the definition of reasonable doubt.

[16]

In
    my view, the trial judges instructions cannot be impugned. Not only did the
    trial judge set out the defence position, she referred to the evidence capable
    of supporting that position. Moreover, the trial judge specifically instructed
    the jury that it had to be satisfied that the lineup procedure was fair to the
    appellant. I note that defence counsel at trial reviewed the charge in advance
    and did not object after it was given. Nor did defence counsel raise any
    concerns about the omission of Shawn McConville from the photo lineup.

[17]

In
    my view, the trial judge properly instructed the jury on eyewitness evidence
    and properly took into account the position of the defence. Nothing more was
    required in the circumstances.

(2)

Did the trial judge err by reinforcing the Crowns suggestion that PC Tansleys
    identification was reliable?

[18]

The
    appellant submits that the Crown improperly relied on the proposition that a
    police officers identification evidence is inherently more reliable than that
    of a civilian. The appellant submits that the trial judge failed to correct
    this and, instead, reinforced this proposition by reminding the jury that PC Tansley
    had been trained to make a mental note of distinguishing features. This
    emphasis on the superior identification ability of PC Tansley further tainted
    the trial judges instructions on eyewitness identification and resulted in an
    unfair trial.

[19]

I
    would reject this submission.

[20]

The
    impugned passages from the Crowns closing address are as follows:

In the bank the robber was masked. The [persons in the bank
    were] in no position to be able to identify who the robber was. You next heard
    from Constable Nick Tansley. And you heard that he was right across the street
    when the call came in and he responded within seconds. Now, this is not a
    regular citizen in the bank with a man holding a hammer at him; this is a
    trained police officer, different than a teller in a bank.

Now, he said, and this was his own
    words, he said, I couldnt get the door open. I knew the likelihood of him
    driving away was pretty great, so I was gathering as much detail as I could in
    case I was called upon to identify him later. Certainly facial features you
    cannot change, like jaw, lips, nose, eyes. So (and he said these words) as a
    trained investigator were taught to hone in on those features. So, dont make
    the mistake of comparing what the teller said to what the police officer said
    with regards to their observations. This is a trained investigator and his
    focus is on the driver. And the un-contradicted, the un-contradicted evidence
    of Constable Tansley is that it was Thomas McConville that was the driver of
    that car.

[21]

The
    trial judge summarized the evidence relevant to the defences argument that PC Tansleys
    identification was unreliable because of the stressful context in which it
    occurred: he was attempting to arrest a fleeing suspect who, he thought, might
    have been armed. The trial judge stated:

Constable Tansley testified that he was running after the
    individual and at the same time making radio calls about what was happening. He
    agreed there was lots of adrenaline. Constable Tansley testified that he was
    looking at the individuals face while making mental notes of distinguishing
    features as he was trained to do. At the same time he had his gun drawn, he was
    trying to open the door of the car and was watching the persons hands because
    he did not know if the person had a weapon or what sort of weapon he might
    have. Constable Tansley testified that he was less than a foot away from the
    persons face, looking directly at him through the drivers window and then
    through that front windshield while that person was yelling obscenities at him.
    He agreed that it was an out of the ordinary experience.

[22]

The
    Crown acknowledges on appeal that police identification evidence is not
    inherently more reliable than civilian identification evidence. But the trial
    judge did not suggest that it was. Moreover, as the Crown notes, this was not a
    case in which there was a contest between the eyewitness evidence of a police
    officer and a civilian. All that mattered was the quality of PC Tansleys
    identification. He was the only person who saw the robbers face.

[23]

The
    difficulty for the defence was that PC Tansley not only saw the robber,
    unmasked; he saw him close-up, for a relatively lengthy period of time
    approximately 10-20 seconds. His evidence was firm and uncontradicted. He
    identified the appellant in a lineup and, what is more, categorically denied
    that the person he saw was Shawn rather than the appellant.

[24]

The
    Crowns reference to PC Tansleys training to hone in on certain unchangeable
    facial features was not inappropriate in the circumstances. The defence was
    relying on the urgency of the circumstances in which PC Tansley found himself in
    an attempt to undermine his identification of the appellant. PC Tansley
    explained his effort to remember the robber before he drove away in order that
    he could later identify him, and his training was relevant in this regard.

[25]

The
    trial judges reference to PC Tansleys training did not taint her
    instructions. She properly instructed the jury on the dangers of eyewitness
    investigation and specifically addressed the frailties of eyewitness evidence
    and the possibility that PC Tansley might have erred:

[Y]ou heard evidence from Constable Tansley that the man he saw
    run from the bank and get into the gray Impala  was Thomas McConville.
    Eyewitness testimony is an expression by a witness of his belief or impression.
    It is quite possible for an honest witness to make a mistake in identification.
    Honest people do make mistakes. An apparently convincing witness can be
    mistaken and so can a number of apparently convincing witnesses.

[26]

Moreover,
    the trial judge referred to alleged inconsistencies in PC Tansleys evidence.

[27]

Defence
    counsel at trial did not object to either the Crowns address or to the trial
    judges charge. The failure to object does not determine this argument on
    appeal, of course, but it weighs against it. I see no basis to impugn the trial
    judges instructions.

(3)

Did the Crowns opening address to the jury prejudice the appellants
    right to a fair trial?

[28]

The
    appellant takes issue with two aspects of the Crowns opening address.  First,
    the appellant says the Crown unnecessarily suggested that the appellant had
    been involved in similar offences in the past. In particular, the Crown
    informed the jury that the appellant was immediately a suspect in the robbery
    because of his history with the police. Second, the Crowns opening address
    suggested that the appellant was such a serious criminal that he had been under
    police surveillance as recently as five days prior to the robbery. This, the
    appellant submits, likely caused the jury to form the opinion that the
    appellant was the type of person who would commit the robbery before they had
    heard any evidence. The appellant acknowledges that defence counsel at trial
    vetted the Crowns opening and did not object to it, but submits that this is
    not determinative and that a new trial is required, citing this courts
    decision in
R. v. M.B
., 2011 ONCA 76, 267 C.C.C. (3d) 72, at paras.
    27-34.

[29]

There
    is no merit to this submission.

[30]

Although,
    as I have noted, a failure to object at trial is not determinative of a matter
    raised on appeal, this case goes far beyond a failure to object. It is nothing
    like
M.B.
, which concerned inflammatory rhetoric in the context of a
    closing address, one of several errors that led the court to conclude the
    appellant had not received a fair trial.

[31]

In
    this case, the statements complained of were the subject of discussion and
    agreement of the Crown and defence counsel before they were made, and again prior
    to the examination of the arresting officer. The statements were designed to
    minimize potential prejudice to the appellant. As the Crown points out, not
    only did defence counsel at trial not object to the Crowns opening, he relied
    upon the statements in question in support of his alternative suspect
    application that sought to implicate Shawn McConville. The matter was
    specifically canvassed with counsel by the trial judge following the Crowns
    opening statement, and Crown counsel confirmed that he had discussed the matter
    with defence counsel and that they were on the same page about how far we both
    think is appropriate The Crown later informed the trial judge that the
    evidence of the officer who arrested both the appellant and Shawn McConville (that
    related, in part, to the police surveillance of the appellant) had been
    canvassed with defence counsel before he was called as a witness, and that
    issues concerning the surveillance had been resolved. No objection to the
    officers evidence was made by the defence.

[32]

I
    agree with the Crown that it was a tactical advantage to the defence for the
    jury to know that the police suspected both the appellants brother Shawn  the
    subject of the appellants alternate suspect defence  as well as the
    appellant. In all of these circumstances, the appellant cannot be said to have
    been prejudiced by the Crowns opening statement.

THE APPEAL FROM SENTENCE

(1)

The
Criminal Code
provisions

[33]

It
    is convenient to set out the relevant provisions governing the sentencing of dangerous
    offenders. The
Criminal Code
provides as follows:

s. 752
    serious personal injury offence means

(a)
    an indictable offence, other than high treason, treason, first degree murder or
    second degree murder, involving

(i)
    the use or attempted use of violence against another person, or

(ii)
    conduct endangering or likely to endanger the life or safety of another person
    or inflicting or likely to inflict severe psychological damage on another
    person,

and for which the offender
    may be sentenced to imprisonment for ten years or more

753(4)
    If the court finds an offender to be a dangerous offender, it shall

(a) impose
    a sentence of detention in a penitentiary for an indeterminate period;

(b)
    impose a sentence for the offence for which the offender has been convicted
    which must be a minimum punishment of imprisonment for a term of two years
    and order that the offender be subject to long-term supervision for a period
    that does not exceed 10 years; or

(c)
    impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a
    sentence of detention in a penitentiary for an indeterminate period unless it
    is satisfied by the evidence adduced during the hearing of the application that
    there is a reasonable expectation that a lesser measure under paragraph (4)(b)
    or (c) will adequately protect the public against the commission by the
    offender of murder or a serious personal injury offence.

(2)

The trial judges decision

[34]

The
    trial judge concluded that the robbery committed by the appellant involved the
    use or attempted use of violence against another person and that the use of
    violence was significant in the commission of the robbery. Following a review
    of the authorities, she concluded that robbery qualified as a serious personal
    injury offence under s. 752 and, as a result, that the appellant met the
    statutory criteria for being designated as a dangerous offender.

[35]

The
    trial judge went on to consider the appropriate sentence under s. 753(4.1). She
    concluded as follows:

I am hopeful that this time Mr. McConvilles resolve will
    translate into a real effort to follow through with programming and that he
    will be able to demonstrate sufficient achievements in his treatment to permit
    safe reintegration into the community. At this time, however, this is no more
    than a hope. It is clear that absent successful treatment Mr. McConville will
    remain a danger to the public at least until he is so old that he no longer
    poses any threat.

The length of determinate sentence I could impose for the
    offenses before the Court, even when combined with a maximum long-term
    supervision order will not, in my view, be long enough to get Mr. McConville to
    that age where protection of the public could be reasonably ensured. The
    reality is that if Mr. McConville does not succeed in his treatment before the
    expiration of a determinate sentence he will be released. The provisions of long-term
    supervision order will in that case, in my view, be insufficient to protect the
    public given Mr. McConvilles propensity for non-compliance with community
    supervision. The prospect that Mr. McConville will by that point have reached a
    point of burn out in respect of his propensity to engage in criminal activity
    is much too speculative.

Mr. McConvilles typical reaction in order to avoid being
    returned to custody has been to flee from police. This has in the past resulted
    in serious injury to the passenger in the vehicle Mr. McConville was driving,
    in significant injury to himself (he continues to this day to take medication
    for neck pain), and in great danger to the police officers in pursuit as well
    as any member of the public in the immediate area. The danger is simply too
    great to take a chance that Mr. McConville will, by the end of his release,
    have reached a point of burn-out.

I am not satisfied by the evidence adduced during the hearing
    of the application that there is a reasonable expectation that a lesser measure
    under s. 753 (4)(b) or (c) will adequately protect the public against the
    commission by Thomas McConville of a serious personal injury offence.

[36]

The
    appellant does not contest the conclusion that he is a dangerous offender. He
    seeks to appeal his indeterminate sentence on the basis that the trial judge
    misapprehended the evidence and erred in applying the test set out in s.
    753(4.1).

(3)

Did the trial judge misapprehend psychiatric evidence concerning the
    appellants risk to reoffend?

[37]

The
    appellant submits that, following the decision of the Supreme Court of Canada in
R. v. Lyons
, [1987] 2 S.C.R. 309, detention for an indeterminate term
    may be imposed only on a very small number of offenders. Although Parliament
    has since broadened the group of offenders who may be declared to be dangerous
    offenders, this court recognized in
R. v. Szostak
, 2014 ONCA 15, 118
    O.R. (3d) 401, leave to appeal refused, [2014] S.C.C.A. No. 300, at para. 54,
    that the new legislation was to be interpreted in the spirit of
Lyons
.
    This, the appellant submits, means that only the most dangerous offenders may
    receive an indeterminate sentence  a small subset of those considered a high
    risk of reoffending violently.

[38]

The
    appellant submits that it was imperative for the trial judge to recognize and
    consider that the experts did not place the appellant amongst this subset. The
    appellant focuses on the trial judges treatment of the evidence of the Crowns
    expert, Dr. Pearce, who placed the appellant in the moderate to high risk
    category. The trial judge misapprehended Dr. Pearces evidence, wrongly stating
    that he had identified the appellant as a high risk to reoffend violently. The
    trial judge repeated this error in her oral summary of her written decision.
[1]
The appellant submits that the trial judge would not have imposed an
    indeterminate sentence in the absence of this misapprehension.

[39]

The
    Crown submits that whether an offender is one of the worst offenders is not
    the sole standard by which the appropriateness of an indeterminate sentence is
    judged. The Crown acknowledges that the trial judge misstated Dr. Pearces diagnosis
    in stating that the appellant was a high risk to reoffend violently, but
    describes this as a misstatement arising in the context of collectively
    referring to Dr. Pearce and Dr. Gojer, the latter of whom did classify the appellant
    as a high risk. The Crown submits that the misstatement played no meaningful
    role in the trial judges finding that an indeterminate sentence was required.

[40]

I
    agree with the Crowns submission.

[41]

Although
    this court stated in
Szostak
that the legislation must be interpreted
    in the spirit of
Lyons
, it recognized that Parliament intended a
    broader group of offenders be declared dangerous offenders than was envisaged
    in
Lyons
where the court spoke of a very small group of offenders.
    The court added that it was of no assistance to attempt to predict the number
    of offenders that Parliament intended to bring within the legislative scheme.

[42]

Szostak
does not require that only the most dangerous of dangerous offenders may
    receive an indeterminate sentence. That is not the test. The trial judge was
    required to apply the legislation in accordance with its terms  no more, no
    less. Section 753(4.1) required that she sentence the appellant to a term of
    indeterminate detention unless she was satisfied there was a reasonable
    expectation that a lesser measure would provide adequate protection against
    the commission of a murder or serious personal injury offence by the appellant.

[43]

The
    trial judge carefully reviewed the expert psychiatric evidence, which included
    a s. 752.1 assessment conducted by Dr. Pearce and an assessment conducted by
    Dr. Gojer, who was retained by the defence. There were numerous similarities in
    their assessments. They agreed that the appellant has Anti-Social Personality
    Disorder and substance abuse problems. Using the same risk assessment tools
    the Hare Psychopathy checklist, the Violence Risk Assessment Guide, and the
    HCR-20  Dr. Pearce assessed the appellant as a moderate to high risk to reoffend
    violently, and Dr. Gojer concluded that the appellant was a high risk. They
    agreed that the appellant was not a psychopath, but would be difficult to
    treat. And they agreed that the appellant meets the criteria to be declared a
    dangerous offender.

[44]

In
    his assessment, Dr. Pearce stated that there were few reasons for optimism
    regarding the likelihood of treating this gentlemans relevant diagnoses and
    few reasons for optimism that this gentleman will be manageable in the
    community upon the expiry of an LTSO, given his escalating and extensive
    criminal history, his substance abuse disorder and the presence of antisocial
    personality disorder. He testified that he was a fair distance away from
    concluding that there was a reasonable possibility that the appellant would not
    violently reoffend following a LTSO.

[45]

For
    his part, Dr. Gojer expressed the opinion that there was a reasonable
    possibility that the appellants risks could eventually be managed in the
    community if he received a lengthy penitentiary sentence; substance abuse counselling;
    anger management and pro-social counselling; and the maximum long-term
    supervision order. He agreed, however, that if the appellant did not manage his
    substance abuse the intensity of his violent acts might remain the same or
    increase.

[46]

The
    trial judge found as follows:

The risk assessment tools employed by both [Dr.s] Pearce and
    Gojer confirm that Thomas McConville is a high risk to reoffend violently. It
    is the opinion of both psychiatrists, employing those tools as well as their
    own clinical assessments that Mr. McConville is a high risk to reoffend
    violently. Both psychiatrists diagnosed Mr. McConville with Anti-Social
    Personality disorder which they agree is not treatable but can only be managed.

[47]

The
    trial judges statement that the appellant was found by both doctors to be a
    high risk to reoffend violently is clearly a misstatement. Only Dr. Gojer
    classified the appellant as a high risk to reoffend violently. Dr. Pearce
    assessed the appellant as a moderate to high risk to reoffend violently.

[48]

However,
    when the decision is read as a whole, it is also clear that the misstatement
    was not essential to the trial judges finding that an indeterminate sentence
    was required, nor did it play a significant role in that finding. The trial
    judge concluded that an indeterminate sentence was required because she
    considered that nothing short of an indeterminate sentence would provide
    reasonable protection for the public. This finding is amply supported in the
    record, as I explain below.

(4)

Did the trial judge err by focusing on the risk of harm in general,
    rather than the risk that the appellant would commit a serious personal injury
    offence?

[49]

The
    appellant argues, in essence, that the trial judge misunderstood the
    requirements of s. 753(4.1). She considered the risk of future violence in
    general, whereas she should have focused on the risk that the appellant would
    commit a serious personal injury offence or murder. This is a particular
    problem for the appellant, because most of the violent offences he committed were
    not personal injury offences and the likelihood of him committing such an
    offence was a live issue.

[50]

The
    appellant submits that there must be more than a possibility that a dangerous
    offender will commit a serious personal injury offence in the future before an
    indeterminate sentence is required; there must be a probability or likelihood
    that the he will commit such an offence. However, the trial judge did not refer
    to the risk that the appellant would commit a serious personal injury offence.
    Instead, she referred repeatedly to the appellants risk of future violence, as
    well as the expert evidence on managing the appellants risk of general
    violence in the community. The only offences she referred to specifically were
    driving offences  dangerous driving and failure to stop. The appellant submits
    that the trial judge erred in considering the driving offences because they
    were not serious personal injury offences.

[51]

The
    appellant reiterates the submission, rejected above, that he is not one of the
    very small group of offenders for whom an indeterminate sentence is
    appropriate. He invites comparison of the circumstances of his case with those
    of the appellant in
Szostak
, in which a determinate sentence was
    imposed despite the appellants commission of several acts of extreme violence.

[52]

I
    would reject this submission.

[53]

The
    appellant parses the trial judges reasons in support of this submission, but
    in my view the trial judges decision, read as a whole, cannot be impugned. The
    trial judge carefully reviewed all of the relevant considerations including the
    expert evidence, which I have already addressed. She reviewed the appellants
    lengthy criminal record, the appellants conduct while in custody and while
    under community supervision over the years, and his convictions that post-date
    the index offences.

[54]

It
    is true, as the appellant submits, that only some of the appellants
    convictions concern violent offences. But his record includes several assaults,
    aggravated assault, assault causing bodily harm, and uttering threats. There
    was ample basis for the trial judge to find that appellant is a dangerous
    individual prone to engage in violent acts, and when facing the prospect of
    apprehension for his illegal activity, to flee from police at all costs. And
    there was ample basis for her finding that there is no more than a hope of
    the appellants future reintegration into the community.

[55]

Contrary
    to the appellants submission, the trial judge did not err in considering the
    appellants driving offences  dangerous driving, failure to stop, and driving
    while disqualified. She did not find that they constituted serious personal
    injury offences under s. 752. Clearly they do not. The appellants driving
    offences were relevant, however, to the robbery he committed. The trial judge
    found that the manner in which the appellant used a vehicle to get away
    following the robbery clearly amounted to conduct that endangered or was likely
    to endanger the life or safety of other persons.

[56]

The
    discretion to impose an indeterminate sentence is not conditional upon the
    trial judge finding that there is a probability or likelihood of the offender
    committing murder or a serious personal offence, as the appellant submits.
    Section 753(4.1) requires dangerous offenders to receive an indeterminate
    sentence unless the trial judge is satisfied that there is a reasonable
    expectation that a lesser measure offers adequate protection against the
    commission of murder or a serious personal injury offence by the dangerous
    offender. In other words, the starting point in this analysis was that the
    trial judge was required to sentence the appellant to an indefinite sentence; a
    lesser, determinate sentence could be imposed only if the trial judge was
    satisfied that there was a
reasonable expectation
that a lesser
    measure would be adequate to protect the public from the appellant committing a
    murder or serious personal injury offence.

[57]

Of
    course, the extent of the threat posed by the appellant is a relevant
    consideration in determining the adequacy of lesser measures to protect the
    public. But while more than a mere possibility that the appellant would commit
    murder or a serious personal offence was required in order to support a
    reasonable expectation that a lesser measure would not be adequate, the risk
    that the appellant will commit murder or a serious personal injury offence need
    not rise to the level of being probable or likely, as the appellant submits, in
    order to justify the imposition of an indeterminate sentence.

[58]

As
    the passages set out above demonstrate, the trial judge was not satisfied that
    a sentence other than preventive detention would protect the public. She
    recognized that an offenders motivation to engage in treatment is an important
    consideration, and in this regard she considered a letter the appellant sent to
    the court, indicating his amenability to treatment. However, as the appellant
    acknowledged, he had made similar assertions in the past and failed to follow
    through. Both psychiatrists agreed that the appellant would be difficult to
    treat, and that his Anti-Social Personality disorder could only be managed.

[59]

The
    trial judge was required to consider all of the relevant considerations and
    make a reasoned judgment under s. 753(4.1) as to the risk posed by the
    appellant and the adequacy of a determinate sentence in managing that risk. The
    trial judge found that the length of the determinate sentence she could impose,
    even combined with the maximum long-term supervision order, would not get the
    appellant to the point of burn-out. It was much too speculative. In my view,
    her conclusion is amply supported by the record. The trial judge made no errors
    in principle, nor is this sentence demonstrably unfit.

[60]

Finally,
    I note that this courts decision in
Szostak
does not support the
    appellants argument that an indeterminate sentence is inappropriate in this
    case. Care must be taken in comparing sentences imposed in different factual
    circumstances. An individual, context-specific determination is required and
    the trial judges determination is entitled to deference. In any event, I note
    that the Crown conceded that an indeterminate sentence was not appropriate in
Szostak
.

conclusion

[61]

I
    would dismiss the appeal against conviction. I would grant leave to appeal
    sentence but would also dismiss that appeal.

Released: October 30, 2017 (E.E.G.)

Grant
    Huscroft J.A.

I agree.
    E.E. Gillese J.A.

I agree.
    G.T. Trotter J.A.

[1]
Earlier in her decision, the trial judge describes Dr. Pearces assessment of
    the appellant as a moderately high risk to reoffend violently, rather than a
    moderate to high risk. No issue was taken concerning this description and it
    does not affect the analysis that follows.


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. Marshall, 2017 ONCA 801

DATE: 20171019

DOCKET: C61978 and C62133

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Appellant by way

of cross-appeal)

and

Daniel Robert Marshall

Appellant (Respondent by way

of cross-appeal)

Mark J. Sandler and Amanda Ross, for the appellant

Eric Siebenmorgen, for the respondent

Heard: May 15, 2017

On appeal from the conviction entered on December 7, 2015
    and the sentence imposed on April 14, 2016 by Justice James A. Ramsay of the
    Superior Court of Justice, sitting without a jury.

Epstein J.A.:

A.

OVERVIEW

[1]

In 2013, the complainant, K.A., read a newspaper article about an
    ongoing criminal trial in which the appellant, then a pediatrician, faced
    multiple allegations arising from historical sexual complaints. K.A. contacted the
    Crown Attorney involved in the prosecution, suggesting that he could provide
    the Crown with more ammo. Ultimately, the appellant was acquitted of all but
    one of those charges. He was sentenced to a term of eight months imprisonment.
    The current charges were laid against the appellant on the day of his
    sentencing in the first prosecution.

[2]

K.A. was 40 years old when he testified in this matter. He gave evidence
    about the appellants brief examination of his genitals that K.A. described as clinical
    in nature. The appellants contemporaneous medical chart supported this
    description. In his testimony, the appellant explained why he performed the
    genital examination and denied any sexual impropriety. Experts gave conflicting
    evidence about the necessity and appropriateness of the genital examination.

[3]

On December 7, 2015, after a judge alone trial, the appellant was
    convicted of one count of sexual assault. The trial judge concluded that the
    appellants touching of K.A.s penis was not medically necessary and amounted
    to a sexual groping. The appellant was sentenced to pay a $5,000 fine. A
    related count of sexual touching of a young person was conditionally stayed,
    and the appellant was acquitted in relation to a second historical allegation
    from another complainant.

[4]

The appellant appeals his conviction. The Crown seeks leave to appeal
    sentence.

[5]

The appellant submits that the trial judge misapprehended or failed to
    appreciate the evidence bearing on innocence, including the significance of the
    appellants contemporaneous medical chart, and failed to provide reasons for
    his credibility and reliability assessment that permit meaningful review. The
    appellant further relies on the fact that the trial judge made no reference to
    the burden of proof or the test in

R. v. W.(D.)
, [1991] 1
    S.C.R. 742
.
The appellant also
    argues that the trial judge erred in disallowing evidence that supported the
    defence experts opinion. The Crowns position is that the record does not
    support these claims.

[6]

For the reasons that follow, I agree with the appellant that the trial
    judges analysis of the evidence and reasoning leading to the appellants
    conviction is flawed. In my view, the trial judge misapprehended important aspects
    of the evidence. I am therefore of the view that the verdict is unsafe and the
    conviction should be set aside. Given this conclusion, I find it unnecessary to
    deal with the appellants submissions regarding the sufficiency of the trial
    judges reasons, the burden of proof, and the trial judges treatment of the
    expert evidence called by the appellant.

[7]

Further, in my opinion, on a correct apprehension of the evidence, no
    reasonable trier of fact could find the appellant guilty of sexual assault and
    an acquittal should be entered.

[8]

Given how I would dispose of the conviction appeal, I find it
    unnecessary to deal with the Crowns sentence appeal.

B.

SUMMARY OF THE EVIDENCE

(1)

Evidence of K.A.

[9]

K.A. was referred to the appellant out of concern that he had attention
    deficit disorder (ADD). The appellant was a pediatric specialist in
    diagnosing ADD.

[10]

The
    offence allegedly took place on December 4, 1990 at K.A.s first appointment
    with the appellant. K.A. and his mother met with the appellant in a
    consultation area. Then, without his mother, K.A. accompanied the appellant
    into an examination room. The appellant proceeded with a normal examination
    that involved such procedures as taking K.A.s height and weight. The appellant
    asked K.A. if he was sexually active. K.A. said he was not, because he was a
    Christian. The appellant then asked K.A. to lie on the examination table and
    unbutton his trousers so the appellant could feel his stomach area.

[11]

In
    examination-in-chief, K.A. testified that he could not recall if the appellant
    actually examined his abdominal area. In cross-examination, K.A. acknowledged
    that he told police that the appellant had, in fact, pressed on his stomach as
    a doctor might do.

[12]

K.A.
    testified that after the appellant asked him to loosen his belt and trousers,
    the appellant reached into K.A.s underwear and pulled out his penis. The
    appellant held K.A.s penis with one hand and pulled back the foreskin with his
    thumb. He then withdrew his hand and said something like ok, were good and
    you can buckle up now.

[13]

K.A.
    acknowledged that the contact did not seem sexual to him. The appellant did not
    rub the shaft of his penis. The appellant was not breathing heavily and did not
    make any sexual comments. The touching had the same cadence as his other
    examination practices, and lasted for only a few seconds.

[14]

In
    cross-examination, K.A. admitted that the touching of his penis could have been
    part of the medical examination, but he nevertheless found it strange because
    the appellant did not tell him about it in advance. K.A. disputed that the
    appellant told him that he was going to examine his private area.  He testified
    that the appellant did not touch his testes.

[15]

K.A.
    could not remember several aspects of his encounter with the appellant. He
    could not recall if the appellant examined him with any medical instruments or
    examined his eyes, ears and throat. He also could not recall a number of issues
    discussed during the initial interview. He did not recall being sent for a
    bone age x-ray (although the appellants chart noted the x-ray). K.A. could
    not recall revisiting the appellant to discuss the test results. He also could
    not recall the appellants telling him that Ritalin could delay his growth.

[16]

After
    the appointment, K.A. did not tell his mother or anyone else about this
    incident because he did not want to draw attention to something that might have
    been normal.

[17]

As
    mentioned at the outset, in 2013 K.A. learned from a newspaper article about
    the appellants first prosecution and contacted the Crown Attorney involved in
    the prosecution.

(2)

Evidence of the
    Appellant

[18]

The
    appellant was 58 years old at the time of trial. He became a doctor in 1981,
    and received his FRCPC in pediatrics in 1986. By 1990, the bulk of his patients
    referred by family doctors had attention or behavioural problems at school. The
    appellant testified that he was trained to take a broad-based comprehensive
    approach to such patients. His practice was to start with an extensive
    interview about the reason the patient was there. This was followed by a
    complete physical examination, and then his recommendations.

[19]

The
    appellants invariable practice was to conduct a physical examination that
    would include asking the patient to lie down and loosen his belt and his fly. The
    appellant would then explain that he was going to examine the patients abdomen
    and genitalia. According to the appellant, the genital examination of his adolescent
    male patients was important for a number of reasons. First, as already
    indicated, the appellant was trained to perform a comprehensive examination. At
    the time, OHIP considered a genital examination to be part of a comprehensive
    examination for billing purposes. Second, there were then significant concerns
    that the ADD medication known as Ritalin could interfere with growth.
    Accordingly, it was imperative that the appellant understand the patients
    stage of puberty. Third, most of the appellants patients were not being genitally
    examined by their family doctors, resulting in genital concerns and
    abnormalities going undetected. The appellant followed a preventative
    maintenance approach to comprehensive examinations, rather than only performing
    examinations after a patient described an area of concern or complaint.

[20]

The
    appellant testified that children with ADD experience, among other things, have
    difficulties paying attention, concentrating, and starting and finishing tasks.
    In addition, ADD individuals are known to become sexually involved at a much
    younger age. Typically, when teenage males were referred to him for suspected ADD,
    he discussed some subjects with them privately because teenagers were less
    forthright in front of their parents.

[21]

At
    trial, the appellant had a general independent recollection of K.A., as K.A.s
    mother worked in the department of pediatrics at the university where the
    appellant occasionally worked. In addition, the appellant remembered that K.A.s
    stature had come up in the examination and that he had prescribed a bone age
    growth assessment. The appellant acknowledged that he could not remember
    specific conversations with K.A. and that in testifying he had relied heavily
    on his contemporaneously made clinical notes and his practice. The appellants
    notes reflected that he took a detailed history of K.A. They contained
    references to the interview with K.A. and his mother, and to K.A.s having ADD
    and being a late bloomer, a description that was significant given the
    appellant was contemplating prescribing Ritalin.

[22]

The
    appellant believed that he would have discussed with K.A. that he was small for
    his age, explained the relationship between puberty and growth, and suggested
    that they would be taking a look at that. The appellant was confident that he
    had had such a discussion with K.A. based on his clinical notes, the fact that
    he sent K.A. for a bone age x-ray, and his normal practice.

[23]

The
    appellants contemporaneous clinical notes contained references to the physical
    examination, including an examination of K.A.s abdomen and genitalia. Consistent
    with K.A.s evidence, the appellant, relying on his notes and normal practice, testified
    that he would have asked K.A. to lie down and open his belt and his zipper, and
    would then have explained to K.A. that he was going to feel his abdomen. The
    appellant said that he would normally phrase his explanation this way: were
    going to feel your abdomen and check your private parts. Because he had
    discussed the fact that K.A. was short, the appellant was sure he would have
    said, and were going to check how puberty is going. The appellant did not
    believe that he had ever reached into a childs underwear without giving an
    explanation beforehand.

[24]

The
    appellant described the genital examination procedure based on the contents of
    his chart and his usual practice. He would have lifted K.A.s underwear band
    and looked at K.A.s genitalia. Usually, he would lift the penis with one hand
    to see the testicles and palpate them with his other hand. He would then ensure
    that the foreskin retracted properly. This examination would take seconds.

[25]

At
    the time, the appellant would not record his discussions with a patient during
    the physical examination. He was not aware of any doctors who then included
    such information in their notes. During the intervening 25 years, procedures have
    changed.

[26]

The
    appellant testified that K.A. was incorrect when he said that the appellant had
    not palpated his testes. The appellants contemporaneous notes record Tanner
    IV IV. (This is a reference to the widely used Tanner scale of physical
    development in children; the first IV refers to the extent of pubic hair, and
    the second IV refers to the development of the genitals). The appellant
    palpated the testes to accurately gauge the size of K.A.s testicles. The
    appellant denied that he palpated K.A.s testicles to give himself sexual
    pleasure.

[27]

As
    his notes reflect, the appellant documented three further steps for K.A.: [b]one
    age, Connors, and trial. Connors was a reference to a questionnaire to be
    sent to K.A.s school for information about his attention problems.

[28]

The
    appellants reference to [b]one age reflects that he sent K.A. for a bone age
    x-ray on his hand and wrist after he determined that K.A. was Tanner Stage IV
    IV. The bone age x-ray is a way to accurately predict a childs growth
    potential. K.A. was fairly sexually mature, but the appellant wanted to learn
    how long this had been the case because of Ritalins potential effect on growth.
    The appellants notes indicate that the x-ray of K.A.s left hand revealed a
    bone age of 14 years, which represented delayed growth when compared with
    K.A.s chronological age of 15 years and 9 months.

[29]

The
    appellants reporting letter to K.A.s family doctor, written the same day as
    the genital examination, noted the following:

He is 165 cm in height and 51.8 kg in weight. His blood
    pressure is 110/80. Examination of his head and neck is normal, chest is clear,
    heart sounds normal,
abdomen soft with no masses or tenderness, genitalia
    normal Tanner IV IV,
neurological exam shows symmetrical reflexes, good
    fine motor movements, normal balance and tone. He is right handed and right
    footed.

While [K.A.] is clearly a bright fellow he has attention
    problems, and I discussed with his parents the option of attempting to treat
    this with Ritalin, to see if we can help his school performance to be a more
    accurate reflection of his very high abilities.
Additionally I note that [K.A.]
    is quite small for his age, being at the

10th percentile for height
    and below the third percentile for weight. I attribute this to his likely being
    somewhat late maturing; I think he still has a fair bit of growth ahead of him.
    Most boys his age would be close to finishing growing.

I would also like to do a bone age on [K.A.], to reassure him
    about his future growth. [Emphasis added.]

[30]

The
    appellant prescribed Ritalin to K.A. on a trial basis. K.A. remained the
    appellants patient until 1993. In total, K.A. saw the appellant six times. The
    appellant monitored K.A.s height and weight during subsequent appointments,
    but did not perform another genital examination.

(3)

Crown Expert Evidence

[31]

The
    Crown called Dr. Warren as an expert witness. The doctor had three criticisms
    of the appellants assessment of K.A.: (1) the genital examination performed
    was not clinically necessary; (2) the appellant, based on K.A.s evidence, did
    not tell K.A. that he was going to examine his genitals in advance and thus did
    not obtain his consent; and (3) the manner in which the appellant performed the
    genital examination was not appropriate.

[32]

Dr.
    Warren initially testified that he saw no reason to conduct a genital
    examination for an individual presenting for consultation for ADD. Nor was
    there any medical reason to pull back K.A.s foreskin, as nothing in the
    medical charts reflected a relevant complaint by K.A., and this was not
    necessary for Tanner staging. Dr. Warren also disagreed that Tanner staging
    would be necessary during an ADD assessment. If Tanner staging were to be
    conducted, Dr. Warren testified that a reasonable assessment could generally be
    done visually, although Dr. Warren agreed on cross-examination that the more
    accurate practice is to palpate the testes. Dr. Warren assumed for the purposes
    of his opinion that no palpation was done. Dr. Warren did agree that a doctor in
    some circumstances may have to lift the penis in order to visualize the testes
    properly.

[33]

Dr.
    Warren conceded that pediatricians perform genital examinations in different
    ways. He also agreed that pediatricians are sometimes asked to assess
    individuals for sexual maturity. In such a case, Dr. Warren would have no
    concerns with a genital examination being performed.
However, Dr. Warren opined that a genital examination was not within the
    purview of the appellants consultation. There was no information in K.A.s chart
    indicating he had never had a genital examination before, and no recorded
    concerns that would justify such an examination.

[34]

Dr.
    Warren admitted in cross-examination that he had understood that the appellant
    performed ADD assessments as a large part of his practice, but had been unaware
    that the appellant was formally a general pediatrician, in addition to being a
    developmental pediatrician. He agreed that many general pediatricians, acting
    in their role as ADD consultants, do perform a full physical examination.
    Further, Dr. Warren noted that in the 1980s and 1990s, the Ministry of Health
    had tried to force the issue of requiring physicians to conduct full physical
    examinations, which included a genital examination.

[35]

Dr.
    Warren also agreed that Ritalin was known to delay growth in some cases. He
    acknowledged that the appellant appropriately identified K.A. as a late
    bloomer and appropriately sent him for a bone age radiograph. Although he felt
    that a genital examination would not be medically necessary when concerned about
    delayed growth due to prescribing Ritalin, he conceded that his own practice
    did not involve initiating Ritalin treatment for children.

[36]

Dr.
    Warren testified that the appellant should have provided an explanation for a
    genital examination before it was performed. However, he conceded that formal
    documentation of that explanation was not required in 1990 to the extent that it
    is now.

[37]

Dr.
    Warren also testified that, because of distractibility, ADD patients may not
    pay attention to new events. Dr. Warren agreed with the appellant that children
    with ADD may have increased sexual activity. However, he testified that if a patient
    reports that he has not been sexually active, he would not check for STDs.

(4)

Defence Expert Evidence

[38]

Dr.
    Martin Levin was called as an expert for the defence. Dr. Levin was qualified
    as an expert in pediatrics and adolescent medicine. His own practice primarily
    involved the treatment of adolescents for school problems, behavioural issues,
    or chronic issues such as eating or weight issues.

[39]

Dr.
    Levin was asked to provide his opinion as to whether the appellants genital
    examination of K.A. was medically justified and whether it was conducted in a
    reasonable manner. Dr. Levin agreed with the appellant that at the material
    time there was significant concern about the effect of stimulant medication
    (such as Ritalin) on growth. Dr. Levin was of the view that a genital
    examination would be part of a routine examination for a 15-year-old male
    patient in order to assess his stage of puberty and whether any abnormalities
    were present. Dr. Levin was trained to conduct a genital examination with every
    new male patient he saw, especially for ADD or behavioural issue patients,
    given increased sexual risk factors. He also agreed that a genital examination
    was important in K.A.s circumstances due to the appellants contemplated
    stimulant prescription.

[40]

For
    the purposes of assessing the reasonableness of the appellants methodology
    during the genital examination, Dr. Levin assumed that the appellant first
    explained to K.A. that he was going to examine his genitals. In Dr. Levins
    view, such an explanation would be important and appropriate.

[41]

Dr.
    Levin testified that during a genital examination, one views the pubic hair,
    the penis and the glands, and then palpates the testicles and retracts the
    foreskin  a process that could be completed in a few seconds. Dr. Levin
    testified that, at the time, the practice was to advise the patient that a
    genital examination was to be performed, rather than asking for permission to
    do so. Dr. Levin agreed with the procedure endorsed in medical literature
    regarding the examination of genitalia that every adolescent should be
    evaluated for Tanner staging at each checkup so that those with normal
    development can be reassured and those with abnormalities can be further
    evaluated. This procedure was consistent with his own training.

[42]

Dr.
    Levin testified that ADD patients may experience memory deficits. This did not
    mean that the patients memory was poor, but rather that information may not be
    noticed and stored as memory in the first place. In relation to K.A.s
    testimony that the appellant had not palpated his testicles, Dr. Levin testified
    that:

[t]he issue was did [K.A.] take in the entire examination and
    was he focused on that, did he take in all the information; that would be the
    first question. Because he was not treated with medication. He was in a new
    situation and new situations for [ADD] patients cause more increased anxiety
    and theyre more likely to have distractibility issues. So youre assuming that
    he took it all in. Im assuming, from my clinical practice, that thats not
    always the case.

[43]

Dr.
    Levin agreed that if K.A.s account of the genital examination was correct, and
    the appellant reached into K.A.s pants without prior warning, pulled back
    K.A.s foreskin, and did not palpate K.A.s testicles, the examination would
    have been improperly conducted.

C.

REASONS FOR JUDGMENT

(1)

Conviction

[44]

The trial judge found K.A. to be an impressive
    witness. He found that K.A.s attention to the medical examination became
    focused when the appellant lifted up his waistband. As the appellant professed
    no actual recollection of the examination, on the two points on which his
    evidence differed from that of K.A.  whether the appellant forewarned K.A. of
    the genital examination and whether the appellant palpated K.A.s testicles  the
    trial judge accepted K.A.s evidence over that of the appellant.

[45]

The trial judge summarized his assessment of the divide in the
    evidence as follows:

I have considered the evidence of [the appellant] in the light
    of all the evidence. I also note that he professes no actual recollection.
    Given that, on the two points on which he differs with [K.A.], the explanation
    and whether he palpated the testicles, I reject the evidence of [the appellant]
    and I accept [K.A.s] evidence. I recognize that as to the stage of development
    he did document that as Tanner IV IV and he also documented no abdominal
    tenderness.
Notwithstanding that, I do not believe that that translates into
    his doing what he says he must have done.
As I said, I accept [K.A.s]
    evidence and I should particularize that I was impressed not only with his
    honesty, which is not in question, but with his reliability. [Emphasis added.]

[46]

The trial judge further held that the appellant
    did not need to touch K.A.s penis, for two reasons. First, while a genital
    examination was part of a comprehensive examination, the appellant had not been
    consulted for this purpose. Second, the trial judge accepted Dr. Warrens
    opinion that it was not necessary to examine K.A.s genitals to give an opinion
    on ADD. The trial judge noted that the defence experts opinion that a genital
    examination would have been called for in the circumstances was based on the
    assumption that there was a reason to look for STDs. However, there was no such
    reason here, as K.A. had told the appellant that he was not sexually active. The
    trial judge also found that the appellant did not need to touch K.A.s penis in
    order to determine his sexual maturity.

[47]

The trial judge observed that Dr. Levins
    opinion also assumed that it is legitimate to conduct a genital exam when the
    patients family doctor had not performed one. But there was no evidence that
    this was the case with K.A. In the trial judges view, the appellants assumption
    that K.A. may not have previously had a genital examination did not give the
    appellant the right to conduct one without prior warning.  Further, the trial
    judge noted that although the appellant saw K.A. until 1993, he did not repeat
    the genital examination yearly.

[48]

Given the trial judges findings that (i) the appellant did not
    forewarn K.A. that he was going to perform a genital examination, (ii) he did
    not palpate K.A.s testicles, and (iii) a genital examination was not medically
    necessary or appropriate in the circumstances, the trial judge concluded
that the quick touching was done for a sexual purpose,
    characterizing it as a fleeting sexual groping. He convicted the appellant of
    sexual assault.

(2)

Sentence

[49]

The trial judge found this to be a rare case in
    which a fine was justified. He sentenced the appellant to pay a fine of $5,000.

D.

analysis

[50]

As earlier indicated, I am of the view that the
    trial judge misapprehended material evidence. My analysis of this issue will be
    assisted by a review of the elements of sexual assault.

[51]

Sexual
    assault is an assault that is committed in circumstances of a sexual nature,
    such that the sexual integrity of the victim is violated:
R. v. Chase
,
[1987] 2 S.C.R. 293, at p. 302.

[52]

The
actus reus

of sexual assault is established by the proof of three
    elements: (i) a touching, (ii) the sexual nature of the touching, and (iii) the
    absence of consent:
R. v. Ewanchuk
,
[1999] 1 S.C.R. 330, at
    para. 25. The sexual nature of the assault is determined objectively by
    examining the nature and quality of the act. The court must ask itself, viewed
    in the light of all the circumstances, is the sexual or carnal context of the
    assault visible to a reasonable observer?:
Chase
,
at p. 302.
    The circumstances to be considered include the part of the body touched, the
    nature of the contact, the situation in which it occurred, and the words and
    gestures accompanying the act.

[53]

The
    Crown need not prove that the accused had any specific
mens rea

with
    respect to the sexual nature of his or her behaviour. A finding of sexual
    assault does not require proof of an improper or ulterior purpose:
R. v.
    Lutoslawski
,
2010 SCC 49, [2010] 3 S.C.R. 60, at para. 36. The
    intent or purpose of the person committing the act may be a factor in
    considering whether the conduct was sexual, but is only one factor to be
    considered in the analysis:
Chase
,
at p. 302.

(1)

Misapprehension of the evidence  the legal standard

[54]

A
    misapprehension of evidence includes 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 (C.A.), at p. 538. The well-settled test for appellate
    intervention based on misapprehension of evidence is where a trial judge is
    mistaken as to the substance of material parts of the evidence and those errors
    play an essential part in the reasoning process resulting in a conviction then
     the accuseds conviction is not based exclusively on the evidence and is not
    a true verdict:
Morrissey
,
at p. 541.

[55]

The
    Supreme Court has made it clear that the misapprehended evidence must be a
    central element of the trial judges reasoning on which the conviction is
    based. If the trial judge would inevitably have arrived at the same conclusion
    without the misapprehended evidence, there is no miscarriage of justice. The relevant
    question is whether striking the error in the assessment of the evidence would
    leave the trial judges reasoning on which the conviction is based on shaky
    ground:
R. v. Sinclair
, 2011 SCC 40,
[2011] 3 S.C.R. 3, at para. 56.

(2)

The trial judges misapprehension of the evidence

[56]

The
    trial judge concluded that the touching was not medically necessary or
    justified, and was not carried out in an appropriate manner. Although his
    reasoning is not entirely clear, the trial judge
appears to
    have concluded that any gratuitous touching of the genitals was for a sexual
    purpose.

[57]

The trial judges conclusion that the touching was gratuitous was
    heavily dependent on the expert evidence and on two findings: (i) that the
    appellant did not forewarn K.A. that he was going to examine his genitals, and (ii)
    that the appellant did not palpate or otherwise touch K.A.s testes.

[58]

For reasons I will now set out, I am of the view that both of those
    key findings, as well as the trial judges appraisal of the expert evidence,
    were based on misapprehensions of evidence. Further, in his analysis the trial
    judge failed to address other important evidence that related to K.A.s
    reliability, as well as evidence that supported the appellants innocence.

(a)

The failure to
    address problems with the reliability of K.A.s evidence

(i)

The evidence
    that the appellant forewarned K.A.

[59]

The appellant contends that the verdict was the
    result of a misapprehension of the evidence relevant to what was clearly a key
    issue at trial; namely, the reliability of K.A.s evidence that the appellant
    did not forewarn him that he would be conducting a genital examination. As
    previously indicated, the appellant testified that he did forewarn K.A. of his
    intention to examine K.A.s genitals. He gave a detailed explanation of his
    normal practice, outlining that he would tell the patient were going to feel
    your abdomen and check your private parts. The appellant added that given K.A.
    was short, he was sure that he would have told him and were going to check
    how puberty is going.

[60]

As Mr. Sandler, counsel for the appellant, put it, the divide in the
    evidence as to whether there was a forewarning of the genital examination was small.
    K.A. may have been attempting to recall something as subtle as the difference
    between the appellants saying I am going to examine your tummy versus I am
    going to examine your tummy
and your genitals
 (emphasis added). The
    trial judges finding that what the appellant said was effectively the former
    rather than the latter depended on his conclusion that K.A.s evidence was more
    reliable than the appellants.

[61]

The Crown submits that the reasons for judgment,
    read as a whole and in the context of the entire trial, demonstrate that the
    trial judge fully and fairly considered all the evidence before him. It is
    clear that the trial judge was alive to the potential frailties of K.A.s testimony.
    For example, the trial judge found that K.A. provided a legitimate reason why
    he did not earlier report what had happened and acknowledged the potential
    impact of K.A.s ADD on his memory. Despite K.A.s ADD, the trial judge
    reasoned that when the appellant put his hands into K.A.s pants, K.A. must
    have been quite focused. The trial judge also clearly addressed the potential
    significance of evidence that the appellants actions lacked any overt indicia
    of sexual assault.

(ii)

The
evidence that the appellant palpated K.A.s testicles

[62]

Reliability
    also played a key role in the trial judges findings that the appellant did not
    palpate K.A.s testicles. Recall that K.A. testified that the appellant did not
    touch his testicles.

[63]

The
    appellant vigorously disputed K.A.s evidence on this point.
In
    addition to the appellants own testimony that, based on his training and his
    invariable practice, he was able to testify with some assurance that he touched
    K.A.s testes, the appellant
relied on his contemporaneous notes that
    record K.A.s stage of development as Tanner IV IV, an assessment that would have
    involved palpation of the testicles.

[64]

Moreover,
    Dr. Levin gave evidence that palpating the testicles was a necessary part of a Tanner
    IV IV finding. Dr. Warrens evidence also supported the appellants position on
    this issue as he acknowledged under cross-examination that many general
    pediatricians, acting in their role as ADD consultants, perform a full
    physical, including a genital examination.

(iii)

Conclusion  palpation and forewarning

[65]

I
    agree with Mr. Sandler that it was incumbent on the trial judge to grapple with
    the reliability of K.A.s recollection on these two important points  the lack
    of forewarning and the lack of palpation of the testicles  in the face of the
    appellants competing evidence. But he did not.

(iv)

Other concerns about evidence relating to K.A.s reliability

[66]

There
    were other reasons to be concerned about the reliability of K.A.s evidence.

[67]

I
    start with K.A.s testimony that he had no recollection of any discussion
    between him and the appellant about growth  in other words, he did not recall
    discussing his stature, tests to be done to assess the stage of his development,
    or the potential effects Ritalin may have on growth. When faced with the
    appellants files recording the discussion about growth, the related tests and the
    results of those tests, K.A. admitted that he may have forgotten the discussion
    about these issues. The trial judge had to resolve how he could rely on K.A.s
    evidence on the lack of discussion about his stature, given the evidence to the
    contrary. Again, he did not.

[68]

Then
    there was K.A.s evidence in chief that he did not recall if the appellant
    examined or otherwise touched his abdomen. Under cross-examination, K.A.
    acknowledged that he had told the police that the appellant had pressed on his
    stomach as a doctor might. I note that the appellants chart recorded no
    abdominal tenderness, an observation that necessarily involved touching K.A.s
    abdomen. This is a clear example of the appellants notes being more plausible
    than K.A.s account.

[69]

The
    trial judge had to deal with this evidence and explain how he resolved the
    reliability problems it raised. He did not.

(v)

Evidence in
    support of innocence

[70]

There
    was also evidence in support of innocence; namely:

(i) the potential tainting of K.A.s recollection, 25 years
    after the fact, based on reading about other allegations being made against the
    appellant;

(ii) the evidence of K.A.s focusing problems when not
    medicated;

(iii) K.A.s own testimony admitting that the appellants
    actions in relation to his penis could have been part of the examination;

(iv) the absence of any indication of sexual arousal or
    stimulation; and

(v) the steps the appellant took out of respect for K.A.s
    privacy.

[71]

I
    appreciate that the trial judge touched on some of these points. But, in my
    view, the most important of these factors bearing on innocence was the effect
    of K.A.s untreated ADD at the time of the interaction in question. With
    respect, the trial judges reasons discussing that issue reflect a
    misunderstanding of the key point. The trial judge reasoned that since this was
    the first time a doctor had touched K.A.s penis, K.A. would have been quite
    focused on what was happening during the genital examination: it was something
    he would have remembered.  The problem with this reasoning is that the issue,
    at least with respect to the advance warning, was not whether K.A. was focused when
    his genitals were being examined, but whether he was focused when the appellant
    was talking to him just
before
that part of the examination.

[72]

The
    trial judge also provided no explanation for his conclusion that the
    appellants contemporaneous notes did not translate into a finding that the
    appellant did what he said he must have done  palpate K.A.s genitals. The
    Crown did not allege that the notes were altered or prepared 25 years after the
    fact. In my view, the trial judge was obligated to explain why he was in a
    position to reject this powerful evidence that undermined the reliability of
    K.A. The appellant was entitled to some analysis of this evidence, both alone
    and in the context of the evidence as a whole: see
R. v. M. (Y.)
(2004)
,
71 O.R. (3d) 388

(C.A.), at para. 37
citing R. v. Lagace

(2003), 181 C.C.C. (3d) 12 (Ont. C.A.).

(vi)

Conclusion regarding the reliability of K.A.s evidence

[73]

In
    my view, the failure to take into account much of the evidence relevant to the
    pivotal issue of the reliability of key aspects of K.A.s testimony concerning
    the appellants examination of him 25 years earlier undercuts the trial judges
    findings on the critical issue of whether the touching of K.A.s penis was
    gratuitous and constitutes a misapprehension of the evidence that warrants
    appellate intervention.

(b)

The misapprehension
    of the expert evidence

[74]

The
    appellant also submits that the trial judge misapprehended the expert evidence.
    Focusing on the testimony of Dr. Warren and Dr. Levin, the trial judge said
    this:

The [appellant] did not need to touch [K.A.s] penis to
    determine his sexual maturity. Touching the penis and retracting the foreskin
    is part of a genital examination, and a genital examination is part of a
    comprehensive examination. Dr. Marshall was not retained to do a comprehensive
    examination. I do not take the defence evidence as showing that Dr. Marshall
    could not have billed for the work for which he was retained and I accept Dr.
    Warrens opinion that it is not necessary to examine the genitals to give an
    opinion on ADD. Dr. Levins contrary opinion assumes that there is a reason to
    look for STDs, which there was not in this case, and which Dr. Marshall was not
    doing anyway. And Dr. Levins opinion assumes it is legitimate for a
    paediatrician to conduct a genital examination when the patient has not had one
    at the family doctor or at the general paediatrician.

In this case there is nothing in the evidence to say that Dr.
    Marshall knew that such was the case with [K.A.]. His assumption that most boys
    do not get such an exam did not give him the right to conduct such an
    examination without even announcing it beforehand, which, as I have found, he
    did not do. Furthermore, he saw Kevin until 1993. Why did he not then repeat
    the genital examination yearly, as Dr. Levin said is indicated, if he was so concerned
    that neither the general paediatrician nor the family doctor were doing that?

The cadence of the genital exam was
    clinical, but it was not a clinical exam. It was not necessary for the accused
    persons purposes and it was not conducted like a medical examination. Lifting
    up the waistband of a boys underwear and reaching in with an ungloved hand
    unannounced is not clinical.

[75]

I
    agree with the appellant that this passage reveals several material misapprehensions.

[76]

First,
    with respect to the trial judges statement that the appellant did not need to
    touch K.A.s penis to determine his sexual maturity, both Dr. Warren and Dr.
    Levin testified that touching the penis may be necessary in a Tanner staging
    exam in order to visualize the testicles. Second, the trial judge accepted Dr.
    Warrens opinion that it was not necessary to examine K.A.s genitals to give
    an opinion on ADD, and stressed that the appellant was not retained to do a
    comprehensive examination that would involve a pulling back the foreskin on
    K.A.s penis as part of a genital examination. From these findings the trial
    judge inferred that the touching was for a sexual purpose.

[77]

With
    respect, these findings miss the point. The fact that the appellant was not
    retained to perform such an examination and that it was not necessary to give
    an opinion on ADD, does not necessarily lead to the inference that the
    examination was unnecessary, unjustified, or, most significantly, conducted for
    a sexual purpose. The relevant issue was the appellants belief that a
    comprehensive medical exam was a suitable diagnostic tool and otherwise justified
    and appropriate in the circumstances.

[78]

Dr.
    Warren conceded that he had previously testified that many general
    pediatricians, acting in their role as ADD consultants, perform a full physical
    examination during a consult because it is their feeling that theyre acting
    as a pediatrician as well as the developmentalist or individual assessing the
    patient for the reason for consultation. Dr. Warren admitted that he provided
    his opinion on the appropriateness of the appellants examination unaware that
    the appellant was a formal general pediatrician, not merely a developmental
    pediatrician. Dr. Warren agreed that if a general pediatrician were concerned
    about sexual maturity, he would have no concerns about their conducting a
    genital examination.

[79]

Further,
    the trial judge mischaracterized Dr. Levins opinion on this point. Dr. Levin
    testified that he would perform a comprehensive examination whenever he saw a
    new adolescent male patient. This comprehensive examination would include a
    genital examination. He testified that it was
especially important

to conduct such an examination for a patient with ADD, given the increased
    risk of STDs. However, the trial judge mischaracterized his evidence as assum[ing]
    that there is a reason to look for STDs, which there was not in this case, and
    which Dr. Marshall was not doing anyway. Dr. Levin provided alternative
    reasons for a general pediatrician to perform a comprehensive exam, including a
    genital examination, on any patient  not only those at risk for STDs.

[80]

Most
    importantly, both Dr. Levin and Dr. Warren testified that similarly situated
    general pediatricians
may

perform
    a comprehensive examination  which would include a genital examination  in
    those circumstances. A comprehensive physical examination would include a
    genital examination. This is entirely consistent with the appellants position
    on why he examined K.A.s genitals. And this evidence is supported by the
    letter from the appellant to K.A.s family doctor, in which he details his
    findings from the physical examination, including his finding that K.A.s genitalia
    [are] normal.

[81]

Dr.
    Marshall also testified that at this time OHIP was pressing doctors to perform
    full physical examinations, something that would include an examination of the
    genitals. The trial judge misunderstood the defences argument concerning OHIP
    billing, stating that he [does] not take the defence evidence as showing that
    Dr. Marshall could not have billed for the work for which he was retained
    [without a genital examination]. The defence position was that if a
    comprehensive examination legitimately formed part of the appellants ADD examination,
    it had to include a genital examination in order to be billed as such.

[82]

Given
    these various misapprehensions, I am of the view that the trial judge erred in
    rejecting the appellants and Dr. Levins evidence relating to why an
    examination of K.As penis would have been warranted.

[83]

As
    outlined above, a finding of a sexual motivation is not necessary in order to
    find sexual assault. However, the supposed sexual rather than medical purpose
    of the touching was clearly a central factor leading the trial judge to
    conclude that the appellants touching was of an objectively sexual nature so
    as to conclude that sexual assault was made out. To the extent that that
    finding turned on the trial judges misapprehensions of evidence, it amounted
    to a serious error that impacted the result.

D.

CONCLUSION

[84]

In
    my view, the trial judge's misapprehension of the evidence set out above is an
    error of law that calls for appellate intervention.

E.

DISPOSITION

[85]

In
    my view, on a correct apprehension of the evidence, the trial judges verdict
    was unreasonable. K.A. described a brief clinical examination of his penis by
    his pediatrician with no evident sexual arousal or other manifestations of
    sexual purpose. K.A. acknowledged that the appellants conduct could have been
    part of an appropriate medical examination.

[86]

In
    these circumstances, I am also of the view that a reasonable trier of fact,
    correctly apprehending the evidence, could not be satisfied beyond a reasonable
    doubt that this was a sexually motivated touching or that, viewing the
    circumstances objectively, K.As sexual integrity had been violated.

[87]

I
    would therefore allow the appeal, set aside the conviction and enter an
    acquittal.

Released: JCM OCT 19 2017

Gloria Epstein J.A.

I agree. J.C. MacPherson J.A.

I agree. R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nnabuogor, 2017 ONCA 762

DATE: 20171002

DOCKET: C62803

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Victor Nnabuogor

Appellant

Richard Litkowski, for the appellant

Andreea Baiasu, for the respondent

Heard: September 28, 2017

On appeal from the decision of the Summary Conviction
    Appeal Court dated September 22, 2016 by Justice
Tamarin M.
Dunnet of the Superior Court of Justice,
    dismissing the appeal from the convictions entered on September 14, 2015 by
    Justice
Rebecca
Rutherford of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of assaulting and sexually assaulting the
    complainant, after a summary trial in the Ontario Court of Justice. He appealed
    those convictions unsuccessfully to a Summary Conviction Appeal Court. He now
    seeks leave to appeal the Summary Conviction Appeal Court decision, asking that
    the convictions be quashed and a new trial be ordered.

[2]

He contends that the Summary Conviction Appeal judge erred in law by not
    recognizing that the trial judge confused the distinction between a proved absence
    of motive to lie and the absence of evidence of a motive to lie, and by making
    a positive finding that the complainant had no motive to lie simply because
    there was no proof that she had a motive to do so. He also urges that the
    Summary Conviction Appeal Judge erred by failing to find that, in the event of
    an error of law, the trial judge could not use the proviso to sustain the
    convictions.

[3]

The application for leave to appeal is denied. The test for leave to
    appeal described in in
R. v. R.R.
,

(2008) ONCA 497 has not
    been met.

[4]

The legal rule that is engaged  the distinction between a proved
    absence of motive to lie and the absence of evidence of a motive to lie  is
    the subject of clear and settled case law:
R. v. L.(L.)
,
2009 ONCA 413. No question of law alone
    of general significance arises in this appeal.

[5]

Nor are the merits of the appeal strong. On its face, the impugned
    comment by the trial judge relating to the complainant, I do not find there to
    be any underlying motivation on her part to fabricate evidence, is not a
    positive finding that the complainant did not have a motive to fabricate. This
    passage is a straightforward indication by the trial judge that she declined to
    find a motivation to fabricate. The context of the decision reinforces that
    this passage communicates a rejection of efforts by the appellant to persuade
    the trial judge that the defence had demonstrated a positive motive for the
    complainant to lie.

[6]

The Summary Conviction Appeal Judge therefore committed no error, let
    alone a clear error, when she found that, in this passage, the trial judge was
    reject[ing] the defence submission to make a positive finding of a motive to
    lie.

[7]

Nor did the Summary Conviction Appeal Judge concede the possibility of
    an error when commenting, Even if [the Trial Judges] sentence  raises
    concerns about a misstatement of law ... it is not material to her finding of
    guilt. The Summary Conviction Appeal Judge was simply explaining that even if
    there had been an error on this point it would have had no impact on the
    outcome.

[8]

It is not necessary for us to decide whether, in making this comment,
    the Summary Conviction Appeal Judge implicitly and improperly invoked the
    proviso. Given that her decision was that no error of law had occurred, the
    application of the proviso is moot.

[9]

Leave to appeal is therefore denied and the appeal is dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Norrie, 2017 ONCA 795

DATE: 20171017

DOCKET: C62539

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Norrie

Appellant

Carol Shirtliff-Hinds, for the appellant

Davin Michael Garg, for the respondent

Heard:  October 16, 2017

On appeal from the order of Justice Guy P. Di Tomaso of the Superior
    Court of Justice, dated June 27, 2016, allowing an appeal against the stay of
    proceedings ordered on September 16, 2015, by Justice Gregory Regis of the
    Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We see no reason to doubt the correctness of the order of the
Summary Conviction Appeal Court judge, setting aside the stay and
    ordering a new trial.

[2]

There was no basis, in law or fact, to stay the charges
    against the appellant based on the failure of the police to lay the information
    within the statutory time limit, or serve the summons in a timely fashion.  The
    possibility that the appellant may have availed himself of the opportunity to
    mitigate the driving suspension portion of a sentence he may have received had
    the system functioned as it should have, does not give rise to any credible
Charter
claim, much less one that could justify the staying of serious criminal charges.

[3]

There has been no trial in this matter.  The other issues raised below
    and on this application involve allegations of
Charter
violations
    during the interaction between the appellant and the investigating officer.
    Those issues can be raised and fully explored at trial if counsel are so
    inclined.  Nothing said by the initial trial judge or the Summary Conviction
    Appeal Court judge should be taken as dispositive of any of those issues.

[4]

Leave to appeal is refused.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Osinfolarin, 2017 ONCA 787

DATE: 20171013

DOCKET: C62482

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Oluwaseye Osinfolarin

Appellant

Oluwaseye Osinfolarin, acting in person

Ian R. Smith, duty counsel

Scott Wheildon, for the respondent

Heard and released orally: October 5, 2017

On appeal from the conviction entered on April 4, 2016
    and the sentence imposed on June 27, 2016 by Justice
Leonard
    Ricchetti
of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Mr. Osinfolarin appeals both conviction and sentence.

[2]

He maintains that the jury selection process was flawed because the
    jurors were not sufficiently representative. We disagree that the selection
    process was defective. There is nothing to suggest that the assembly of the
    panel or the challenge for cause process were flawed.

[3]

He also maintains that he was prejudiced because the jury did not know
    that he was in custody during the trial and, therefore, would not have
    appreciated the difficulties he had in marshalling a defence. Again we
    disagree. The appellant was represented at trial. His own counsel asked that
    measures be taken to conceal his custodial status from the jury. This request
    was acceded to. The appellant testified and had the opportunity to explain any
    difficulties he may have had in preparing his defence.

[4]

The appellant also maintains that the police failed to conduct a proper
    investigation of the matters raised in his defence. There is nothing in the
    record to support this ground of appeal.

[5]

The appellant received a 13 year custodial sentence less two years and
    three months credit for pre-sentence custody. This case involves the
    importation of 1.98 kg of street ready heroin. The appellant argues that his
    sentence was unduly harsh. Duty counsel argues that the trial judges reasons
    were internally inconsistent in describing the range of sentence. Read
    contextually, we do not agree. The trial judge was clearly aware of the range
    for importing almost two kg of heroin. He cited the relevant authorities. He
    took into account both the amount of the drugs and their value. He also had
    regard to all mitigating factors, including the appellants background and
    personal circumstances.

[6]

We see no error in the trial judges determination of sentence. There is
    no basis upon which to interfere.

[7]

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

K.
    van Rensburg J.A.

G.
    Pardu J.A.

Fairburn
    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. R.B., 2017 ONCA 779

DATE: 20171012

DOCKET: C61205

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.B.

Appellant

R.B., in person

Amy Ohler appearing as duty counsel

Lorna Bolton, for the respondent

Heard and released orally: October 4, 2017

On appeal from the conviction entered on July 19, 2015 and
    the sentence imposed on September 17, 2015 by Justice S. Hunter of the Ontario Court
    of Justice.

REASONS FOR DECISION

[1]

Mr. B. argues that the trial judge should have made different findings
    of fact and credibility and should have acquitted him of the offences charged
    sexual assault and touching a 15 year old for sexual purpose. This case turned on
    the trial judges assessment of the evidence of the witnesses and their credibility.
    We see no error in the trial judges approach and no basis to interfere with
    his conclusion. Mr. B. did not pursue the sentence appeal in oral argument. The
    appeal is dismissed.

K. van Rensburg J.A.

G. Pardu
    J.A.

Fairburn
    J.A.