COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berbeck, 2013 ONCA 241

DATE: 20130417

DOCKET: C54773

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Denroy Berbeck

Respondent

Howard Piafsky, for the appellant

Mark Halfyard and Breana Vandebeek, for the respondent

Heard: February 28, 2013

On appeal from the acquittal entered by Justice Kenneth
    A. Langdon of the Superior Court of Justice, sitting with a jury, dated October
    5, 2011.

MacFarland J.A.:

A.

overview

[1]

This is a Crown appeal from the acquittal of the respondent on a charge
    of importing cocaine from Jamaica into Canada on July 28, 2009.

[2]

The Crowns case went in largely by way of an Agreed Statement of
    Admissions, wherein both parties accepted the following facts:

1.

Jurisdiction
 the cocaine at issue was imported into Canada
    via Pearson International Airport in the City of Mississauga, Ontario, from
    Jamaica;

2.

Date
 the cocaine at issue was imported into Canada on July
    28, 2009;

3.

Identity
 the accused Denroy Berbeck who was arrested
    on the charge named in the indictment is the same Denroy Berbeck that is before
    the court;

4.

Continuity and Nature of Substance
 samples seized from
    the pellets swallowed and later expelled by Denroy  Berbeck were submitted
    to Health Canada for analysis and determined to be cocaine;

5.

Knowledge
 Denroy Berbeck knew there was cocaine inside
    the pellets he swallowed in Jamaica and later expelled once in Canada on July
    29, 2009.

[3]

The respondent relied on the defence of duress and that was the sole
    issue at trial.

B.

the facts

[4]

The respondent testified that he travelled to Jamaica to speak to his
    father about taking his medication for prostate cancer properly.  While he was
    there, his father told him that he was being harassed by the respondents half-brother,
    Delroy.
[1]
The respondent asserted that his father owed Delroy $10,000, which his deceased
    mother had left to Delroy and which Denroys father had spent.

[5]

The respondent testified that he called Delroy with the intention of
    telling him that he, the respondent, would repay his fathers debt. The
    telephone conversation with Delroy became acrimonious and the respondent hung
    up. However, Delroy called back later that day, apologized, and suggested the
    respondent come to his house.  When the respondent arrived, he saw Delroy and a
    police officer sitting on the porch. Delroy asked the respondent to bring
    cocaine into Canada for him as repayment for his fathers debt.  The respondent
    asserted that he refused, got in his car and left.

[6]

On the morning the respondent was scheduled to return to Canada, Delroy
    and the same police officer showed up at the respondents fathers house.
    Delroy took cocaine pellets out of a bag he was carrying, pulled out a gun
    which he pointed at the respondent, and instructed the respondent to swallow
    the pellets. The police officer also pulled out a gun, which he pointed at the
    respondents head.  Both Delroy and the police officer threatened to shoot him
    if he did not swallow the drugs.  The respondent heard a click, which he believed
    to be the sound of Delroy racking the gun, preparing to fire it.  Delroy took
    out some orange juice, and the respondent started swallowing the pellets.  The
    officer left to stay with the respondents father outside.  By the time the
    respondent had swallowed about thirty pellets, he began to vomit and was
    permitted to stop.

[7]

According to the respondent, Delroy told him not to tell anyone, and
    that he would have people watching the respondent.  Delroy did not specify what
    this meant, but the respondent took it to mean he would have people watching
    him at the airport in Jamaica, on the flight, and beyond.  The respondent
    testified that he did not believe he could call the Jamaican police because he
    believed they were corrupt, and because a policeman was involved in the
    incident.  He agreed that the police in Jamaica are not like the police in
    Canada.

[8]

On July 28, 2009, the respondent flew from Jamaica to Toronto.  After
    passing through the primary inspection, he was interviewed by Canada Border
    Services Agency Officer Kevin Dixon.  Officer Dixon was tasked with locating
    people suspected of smuggling narcotics into Canada.  He testified that he
    interviewed the respondent at 6:32 p.m.  The respondent advised Officer Dixon
    that he had been in Jamaica for four days on vacation, and that he had
    purchased his ticket in cash.  He was travelling alone, and Officer Dixon
    testified that he appeared nervous when being interviewed.  Officer Dixon
    decided that further examination was warranted.

[9]

The respondent attended at the secondary inspection counter where
    Officer Dixon conducted a further inspection.  An ION scan test was performed
    on items in the respondents possession. It tested positive for cocaine.  By this
    time, Officer Dixon was of the view that the respondent had ingested drugs.  At
    7:57 p.m., the respondent was detained for a personal search pursuant to s. 98
    of the
Customs Act
, R.S.C., 1985, c. 1 (2nd Supp.).  He was read his
    rights to counsel and cautioned. The respondent consulted with duty counsel at
    8:10 p.m., and again at 9:37 p.m.

[10]

At
    around 11:00 p.m., prior to acknowledging that he had ingested cocaine, the
    respondent spoke to the CBSA officers. He advised them that he had stayed with
    his brother in Jamaica. He told the officers that his brother was a bad dude
    who had gotten into trouble trying to ship cocaine from Jamaica.  He added that
    his brother would put cocaine in the poles of suitcases and have females
    smuggle them into the United Kingdom.

[11]

CBSA
    officers Kyle Scrimgeour and Stephen Miller took over custody of the respondent
    at 3:00 a.m.  The respondent told Officer Scrimgeour that he did not see anyone
    in his family doing drugs other than marijuana, but repeated that his brother
    imported cocaine into other countries using couriers.

[12]

At
    6:28 a.m., CBSA officers Chris Tilden and Kevin Armstrong took custody of the
    respondent. The officers advised the respondent of his options and noted the
    risks involved in prolonging the situation should a capsule break in his
    stomach.  After reviewing these options for thirty to forty minutes, the
    respondent approached the officers, shook their hands, and stated that he had
    fucked up and confirmed that he had in fact ingested drugs.  He was then
    arrested and cautioned.

[13]

After
    his arrest, the respondent passed into the custody of Constables Jason Freeman
    and Scott Thompson of the RCMP.  They re-arrested him and took him to the
    hospital to get checked out as a precaution. Shortly after his release from
    hospital, he commenced passing pellets of cocaine.

C.

analysis

(1)

The Crowns Burden

[14]

In
R. v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609, the majority of the
    Supreme Court of Canada set out the Crowns burden when it appeals the
    acquittal of an accused.  At para. 14 of his reasons, Fish J. for the majority
    stated:

It has been long established, however, that an appeal by the
    Attorney General cannot succeed on an abstract or purely hypothetical
    possibility that the accused would have been convicted but for the error of
    law.  Something more must be shown.  It is the duty of the Crown in order to
    obtain a new trial to satisfy the appellate court that the error (or errors) of
    the trial judge might reasonably be thought, in the concrete reality of the
    case at hand, to have had a material bearing on the acquittal. The Attorney
    General is not required, however, to persuade us that the verdict would
    necessarily have been different.

This burden on the Crown, unchanged for more than half a
    century (see
Cullen v. The King
, [1949] S.C.R. 658), was explained
    this way by Sopinka J., for the majority, in
R. v. Morin
, [1988] 2
    S.C.R. 345:

I am prepared to accept that the onus is a heavy
    one and that the Crown must satisfy the court with a reasonable degree of
    certainty. An accused who has been acquitted once should not be sent back to be
    tried again unless it appears that the error at the first trial was such that
    there is a reasonable degree of certainty that the outcome may well have been
    affected by it.  Any more stringent test would require an appellate court to
    predict with certainty what happened in the jury room. That it cannot do.
    [Internal citation omitted.]

Speaking more recently for a unanimous court in
R. v.
    Setton
, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:

The parties agree that acquittals are not lightly
    overturned. The test as set out in
Vézeau v. The Queen
, [1977] 2
    S.C.R. 277, requires the Crown to satisfy the court that the verdict would not
    necessarily have been the same had the errors not occurred.  In
R. v. Morin
,
    [1988] 2 S.C.R. 345, this Court emphasized that the onus is a heavy one and
    that the Crown must satisfy the court with a reasonable degree of certainty. [Internal
    citation omitted.]

[15]

It
    is clear from the authorities that the Crowns burden in these circumstances is
    a heavy one.

(2)

The Charge

[16]

The
    trial judge did not, despite Crown counsels request that he do so, follow
Watts
    Manual of Criminal Jury Instructions
(Toronto:
    Thomson Carswell, 2005)
on the defence of duress.  Instead, he used
    his own four-part version which essentially covered the same ground.  He also
    provided the jurors with a decision tree framing each element of the duress
    defence as a question.  The questions in the decision tree read as follows:

1.

QUESTION ONE

Has the Crown proved beyond a
    reasonable doubt that, when Mr. Berbeck brought the drugs into Canada, threats
    of death or serious personal injury to himself or another person, were
NOT
the operative cause of his doing so?

If the answer to this question is
    YES, then you must find Mr. Berbeck guilty. Your deliberations are over.  If
    the answer to this question is NO, then you must go on to question 2.

2.

QUESTION TWO

Has the Crown proved beyond a
    reasonable doubt that the threats were
NOT
of such
    gravity or seriousness, that Mr. Berbeck believed they would be carried out?

If the answer to question 2 is YES,
    then you must find Mr. Berbeck guilty.  Your deliberations are over.  If the
    answer to question 2 is NO, then you must go on to consider question 3.

3.

QUESTION THREE

Has the Crown proved beyond a
    reasonable doubt that the threats were such that they would
NOT
have caused a reasonable person, placed in the same
    situation as Mr. Berbeck, to act in the same way?

If the answer to question 3 is YES,
    then you must find Mr. Berbeck guilty. Your deliberations are over.  If the
    answer to question 3 is NO, then you must go on to question 4.

4.

QUESTION FOUR

Has the Crown proved beyond a
    reasonable doubt that a reasonable person in Mr. Berbecks situation could
NOT
conclude that he had no safe avenue of escape?

If the answer to this question is
    YES, you must find Mr. Berbeck guilty.  Your deliberations are over.  If the
    answer to this question is NO, then you must find Mr. Berbeck NOT guilty.  Your
    deliberations are over.

[17]

There
    is no serious issue with the judges charge to the jury; the Crowns complaint
    arises from the manner in which the trial judge responded to the jurys
    questions.

(3)

The Jury Questions

[18]

The
    jury was sent out to deliberate shortly after 11:00 a.m. It is unclear from the
    transcript at what time their first question was received, but they were
    recharged and sent back to deliberate at 2:25 p.m. That first question is not
    pertinent to this appeal.  A second question was received at 5:05 p.m.  The
    question read:

[A]fter much deliberation at this time we are unable to come
    to a [unanimous] decision. We are having some difficulty with #3 and #4 for the
    defence of duress.  After your guidance earlier we were able to have a more
    focused [deliberation]. Our main difficulty with answering these questions is
    the term reasonable person.  We are wondering if there is a legal definition
    of this term, or if we should agree to disagree and remain undecidedalthough
    not ideal.

[19]

After
    a discussion with counsel, the trial judge answered the jurys question as
    follows:

Sometimes its a pity that you havent been to law school
    because for three years of law school we heard debates about the reasonable
    man. This is such an ancient legal concept that poems and books have been
    written about it, somewhat humorous.The mythical reasonable man is what I would
    refer to as an objective standard.  Now lets say that you have a relative, a
    young man who is a little simple, okay? Very gullible. And hes been looking up
    at the sky and his father has told him that the moon is made of green cheese.
    And he believes that, okay?  And he makes a decision based on that fact which
    is obviously wrong.

If a jury is coming to assess that decision, not subjectively from
    his point of view, but objectively, you would say well the reasonable man
    wouldnt premise a decision on the fact that the moon is made of green cheese.

In the case of duress, most of the tests that youve had to
    deal with have been a mix of subjective and objective tests. We have said what
    a reasonable man in the same situation as Mr. Berbeck with the same life
    experience, the same background, would he have made the same decision that Mr.
    Berbeck did?

Well, if Mr. Berbeck had come in and said you know, this fellow
    came into my house just after breakfast with my Dad and he pointed a water gun
    at me.  He said if you dont take the drugs, Im going to squirt you, and maybe
    the fellow told him that the plastic water gun was full of sulphuric acid which,
    of course, it wouldnt hold.

Now, if he was really stupid he might have believed that, but
    objectively a reasonable man wouldnt have believed that.  Okay.

Now, weve been trying to read sort of between the lines and I
    dont want to guess how far along you are or where your verdict is, but youve
    come to some problems with three and four.  Okay.

Assuming for the purpose of this discussion without in any way
    trying to decide it for you, I am going to assume, for the purpose of answering
    this question  just a minute now  that youve at least been in a state of
    reasonable doubt whether threats of death or serious personal injury to Mr.
    Berbeck or his Dad caused him to do this, and they were operating on his mind
    when he chose to do it.

I am also going to assume once again without trying to read
    your mind, that youve got past number two, that the threats were of such
    gravity or seriousness that he believed they would be carried out,
i.e
.
, he thought these people were
    genuine. They were going to do him in if he didnt do it.

Okay so lets go to question three.  The threats must be such
    that they might well have caused a reasonable person, placed in the same
    situation as Mr. Berbeck to act in the same way.

Put another way, would a person of reasonable firmness sharing
    the characteristics of Mr. Berbeck such as age and background, act in the same
    manner that he did. That is to say, the threats must be such as to overbear
    ordinary powers of human resistance.

Now, normally if youre getting into a legal discussion in the
    Court of Appeal, and the Court of Appeal will tell you well, thats just
    precisely the kind of question you leave to a jury.  I have to say, without
    wanting to influence your decision, I consider myself to be a reasonable person
    and each of you presumably would do the same.  And if I had to choose between
    my father or myself being murdered, or bringing half a pound of cocaine into
    Canada, that would be a no brainer. Yes, bringing it into Canada would be a
    crime, but whats the alternative? Dying? Hello, whats the problem?

I think a reasonable person would decide that bringing the
    cocaine is a lesser of two evils.  And thats really all were asking. So I
    dont see why youre having a big problem with that particular question.

Its a decision that you have to make but let me tell  you,
    remember I told you earlier you have three hundred years of living experience
    amongst you, and you just have to apply your common sense. If it was your child
    or your mother and the fellow said Im going to blow your mothers brains all
    over the dining room wall unless you bring a half a pound of cocaine into
    Canada, I have to say, I would say, yeah, in the suitcase, lets get on the
    plane, because I dont want my mothers brains laid all over Canada. I dont
    think thats unreasonable. That to me is the easiest part of the whole case.

I dont want to take it away from you and the Court of Appeal
    if this ever gets there will probably say the learned trial judge, in question
    marks, took the case from the jury by saying what he did.  Its your decision,
    but would it be unreasonable?  Every one of us might have made a different
    decision, but having made that decision could any of us say it was reasonable
    looking at it objectively?  Pretty hard hearted Hannahs if  Okay?

So I hope that will give you some help with number three.

The question number four is, did he have an obvious safe avenue
    of escape?

Well, Ive reviewed the evidence on that for you. To some
    extent you have to understand that the question of obvious safe avenue of
    escape depends on what Mr. Berbeck believed. That isnt necessarily an
    objective test. He might have believed that the police in Canada were more
    corrupt than they actually are, right? He might have believed that his
    half-brother had a watcher in the secure area.  If he genuinely believed that,
    then that impacts on his decision.  If he has a genuinely held belief it doesnt
    necessarily have to be reasonable, but whether its reasonable will help you
    decide whether he genuinely believed it.  Are you with me?

So, again, if I hold a genuine belief or I claim a general
    belief that the moon is made out of green cheese, you might say well, I dont
    believe that was genuine because its so totally unreasonable. So the two play
    off against each other.

If you have got as far as number three, to me thats a no
    brainer, its your decision. Then you have to make the fourth decision whether Mr.
    Berbeck himself genuinely believed he didnt have a safe avenue of escape, that
    the Crown has not negated that beyond a reasonable doubt, then he gets the
    benefit of that part of it too.

[20]

The
    Crown immediately objected, on two bases.  First, the Crown argued that the
    trial judges examples of a reasonable person bordered on the absurd and
    distorted the appropriate legal standard. The examples suggested that unless a
    person believed the moon was made of green cheese or that a water gun pointed
    at ones head posed a real threat, that person was reasonable for the purpose
    of the defence of duress.

[21]

The
    Crowns second objection was in relation to the trial judges direction on the
    safe avenue of escape. The Crown argued that the trial judges remarks had
    taken out the reasonable person standard and replaced it with a purely
    subjective test requiring only that Mr. Berbeck really believed it in his
    mind.

[22]

The
    trial judge accepted this latter objection, called the jury back, and said:

I may have somewhat overstated the position with respect to the
    safe avenue of escape.  I may have left you with the impression that the only
    thing that mattered was whether Mr. Berbeck believed that he had a safe avenue
    of escape. But the question is first, did he believe he had a safe avenue of
    escape? Or had no safe avenue of escape? And, secondly, would this mythical
    reasonable person similarly situated, also hold the same belief.  In other
    words, the belief has to be a reasonable one on the facts that were before you.

So the question is, did he subjectively believe it and (b)
    objectively was his belief unreasonable?

If the Crown has not proved beyond a reasonable doubt that it
    was not, then he gets the benefit of that question.

[23]

On
    appeal, the Crown again takes issue with both the trial judges response on the
    reasonable person issue and his response on the safe avenue of escape issue.

[24]

On
    the first issue, the Crown submits, in essence, that the trial judges
    instruction signified to the jury that everything short of the patently
    ridiculous could be considered reasonable for the purposes of the reasonable
    person standard. In other words, the analogies placed the definition at the
    level of absurdity, not reasonableness.

[25]

It
    would have been preferable had the trial judge used the standard jury charge in
    response to the jurys question, which would have instructed the jury as
    follows:

A reasonable person is a person of the same age, sex, and
    background as [Denroy Berbeck], with average courage and the ordinary powers of
    resistance to external pressures that we expect of our fellow citizens.  The
    twelve of you are the best judges of whether the threats
could
have
    caused a
reasonable
person in the same circumstances to do as [Denroy
    Berbeck] did.

[26]

The
    trial judge did, when first outlining the elements of the defence of duress in
    his original charge, use language very similar to that of the model charge.  It
    might have been better if he had simply repeated that language in response to
    the jurys question.

[27]

That
    said, I am not persuaded that what the trial judge did say amounts to a reversible
    error.  While the examples he gave are extreme, I am of the view that the jury
    would not have been confused about the essential nature of the reasonable
    person standard.  Clearly, the trial judge used strong language to let the jury
    know what he thought about the third element of the defence, as he had laid it
    out.  He said, as far as he was concerned, it was a no brainer and he
    couldnt understand why they were having difficulty with this question.

[28]

Despite
    this strong language, he nevertheless made it clear it was for the jury to decide.
    A trial judge is entitled to express an opinion on the evidence as strongly as
    the circumstances permit, so long as it is clearly advice and not direction:
R.
    v. Lawes
(2006)
, 80 O.R.
    (3d) 192, at paras. 21 and 35, leave to appeal to S.C.C. refused, [2006]
    S.C.C.A. No. 175.  The trial judge did not, in my view, usurp the jurys function
    and I would not give effect to this ground of appeal.

[29]

On
    the second issue, the Crown submits that the trial judge misstated the test for
    safe avenue of escape in response to the jurys question.  The Crown accepts
    that the trial judge acknowledged his error and recharged the jury almost
    immediately that the test for safe avenue of escape had both a subjective and
    objective component.

[30]

However,
    the Crown argues that the trial judge subsequently instructed the jury on safe
    avenue of escape several more times, each time using a different formulation
    and each time making material errors.  In the Crowns words, [i]t is
    reasonable to infer given the number of different permutations of safe avenue
    of escape provided to the jury over the course of their deliberations that
    confusion would ensue.

[31]

In
    support of this argument, the Crown points to several interactions between the
    jury and the trial judge during the course of deliberations.  After the trial
    judge responded to the second question, for instance, the jury sent two more
    notes indicating that they were deadlocked on question four  whether or not a
    reasonable person in Mr. Berbecks position could not conclude that he had a
    safe avenue of escape.  The second note read:

After a good nights sleep and much thought we appear to remain
    [deadlocked].  As before, #4 continues to [be] of difficulty for us to be in [agreement].
    We have a few more questions that may help us reach a better understanding of
    what our thought process should/could be for this aspect of [duress].  Points
    of clarification are:

1.       Clarify
    safe avenue of escape in this context.

2.       In
    regards to coming to a decision, must we be absolute?  If a juror is unsure
    of their response to #4, and are swayed either way, are they then required to
    give the benefit to the defendant?

To be more clear, if someone
    says they are 95% leaning to one side for this aspect, is this good enough to
    say you are on either side, or do you remain in the middle?

Thank you again for your support,
    and we apologize for our ignorance.

[32]

In
    response to the jurys request that he clarify safe avenue of escape, the trial
    judge outlined for the jury the subjective and the objective requirements of that
    aspect of the duress defence.  He noted Mr. Berbecks testimony that the police
    in Jamaica were corrupt, and cautioned that [w]hat is important is not whether
    they were or are corrupt, but whether Mr. Berbeck believed they might be, and
    whether a reasonable person
might
also share that belief (emphasis
    added).  The trial judge further instructed the jury that Mr. Berbeck was
    entitled to the benefit of the defence [i]f Mr. Berbeck believed there was no
    safe avenue of escape, and if a reasonable person
might
have thought
    also that there was no safe avenue of escape (emphasis added).

[33]

The
    principal objection raised by the Crown to these formulations of the safe
    avenue of escape test is the trial judges use of the word might as opposed
    to the word would.  I agree with the Crown that the word would ought to
    have been used throughout the trial judges response in reference to the belief
    of the reasonable person.  In this respect, the advantage of using the standard
    charge becomes apparent.  Repetition of the tried and tested language avoids
    the pitfalls that will arise where more off-the-cuff responses are given to
    jury questions.

[34]

In
    my view, however, on the facts of this particular case, I do not accept that
    the jury would have been confused about the proper test for safe avenue of
    escape.  The trial judge concluded his response with the following formulation:

To answer this question you must consider whether a reasonable
    person of the same age and sex and background as Mr. Berbeck, a reasonable
    person having been threatened,
would
think that no safe means of
    escape [existed] in the circumstances.  It is for you to say. [Emphasis added.]

[35]

Further,
    the trial judge repeated that language in his response to the jurys final
    question, submitted several hours later, when he stated:

If Mr. Berbeck genuinely believed that he had no legal way out,
    and if a reasonable person standing in his shoes
would
find that he
    had no legal way out, then Mr. Berbeck is entitled to be acquitted.

However, if the Crown has proved beyond a reasonable doubt
    either that Mr. Berbeck did not genuinely believe he had no legal way out, or,
    that a reasonable person standing in his shoes
would not
think that he
    had a legal way out, then he doesnt get the benefit of the defence. [Emphasis
    added.]

[36]

In
    my view, the jury would have understood that they were required to determine
    whether Mr. Berbeck believed there was no safe avenue of escape, and if so,
    whether a reasonable person in his circumstances
would
have shared
    that belief.  I would not give effect to this ground of appeal.

[37]

The
    Crown raises two further objections to the trial judges responses to the
    jurys questions.  First, he points to the trial judges instruction on
    reasonable doubt in the context of safe avenue of escape.  Although the Crown
    acknowledges that the trial judge initially properly explained the concept of
    reasonable doubt, he refers to the trial judges concluding admonition:

Again, if there is
any doubt
on this issue, you must
    give the benefit of that doubt to Mr. Berbeck. [Emphasis added.]

[38]

The
    Crown objected after this instruction was given, arguing that the phrase any
    doubt was inconsistent with the concept of a
reasonable
doubt, and
    requested that the trial judge call the jury back to correct or modify his last
    statement.  In response, the trial judge accepted the submission of defence
    counsel that it would be inconceivable after instructing the jury that a doubt
    has to be reasonable half a dozen times that the jury would now think he was
    referring to any doubt at all.  He did not recall the jury.

[39]

I
    agree with the trial judge on this point.  He had already, in response to the third
    question, charged the jury quite extensively and thoroughly on reasonable
    doubt.  It is highly unlikely the jury would have been confused by the mere
    failure to include the word reasonable before the word doubt on this one
    occasion.

[40]

Finally,
    the Crown objects to the trial judges last formulation of the safe avenue of
    escape.  As I said above, the jury submitted a final question shortly before
    acquitting Mr. Berbeck.  Their note read:

Although your shared knowledge was greatly [appreciated] and
    helpful as it stands, we are still [deadlocked] 11-no 1-yes in regards to his
    guilt being proven. We need to ask the same question in a different [way]. Please
    [oblige] us one more time. What holds more weight? A [reasonable] person vs. what
    the Crown proved.

[41]

The
    trial judge answered the jurys question as follows:

The issue here is, did Mr. Berbeck have a safe avenue of escape,
    which I will even shorten further to make it easier and say a legal way out.
A
    legal way out being a way in which he need not have brought the drugs to
    Canada.
Legal way out.

If Mr. Berbeck genuinely believed that he had no legal way out,
    and if a reasonable person standing in his shoes would find that he had no
    legal way out, then Mr. Berbeck is entitled to be acquitted.

If you have a reasonable doubt whether thats the case, Mr. Berbeck
    is entitled to be acquitted.

However if the Crown has proved beyond a reasonable doubt
    either that Mr. Berbeck did not genuinely believe he had no legal way out, or,
    that a reasonable person standing in his shoes would not think that he had a
    legal way out, then he doesnt get the benefit of the defence.

I dont think I can make it much more [clear] than that.  You
    have to assess it from his personal point of view and you have to assess it
    from a point of view of a reasonable person standing in his shoes. Its kind of
    a double-barrelled thing. [Emphasis added.]

[42]

Again,
    after the jury retired, the Crown immediately objected to the use of the phrase
    a way in which he need not have brought the drugs to Canada.  She argued that
    it suggests that the safe avenue of escape stops as soon as he gets on the
    plane and [flies] through the air and [arrives] in Canada.  The trial judge
    did not accept the objection, responding that he had told the jury a number of
    times that the offence was a continuing one up until the [s. 98] customs
    search.

[43]

I
    think it unlikely that the jury would be confused by this particular response from
    the trial judge.  Their question and the trial judges response were addressed
    to the nature of the reasonable person standard.  The jury had not expressed
    any difficulty with the continuing nature of the offence of importing.  I would
    not give effect to this ground of appeal.

[44]

Overall
    I find the answers to the jurys questions were not confusing and the jury
    would not have had difficulty following those answers.  Appellate courts must
    review jury charges as a whole, adopting a functional approach; although juries
    must be instructed properly, we do not require perfection:
R. v. Jacquard
,
    [1997] 1 S.C.R. 314, at paras. 32 and 62;
R. v. Luciano
, 2011 ONCA 89,
    267 C.C.C. (3d) 16, at paras. 69 and 71.

[45]

The
    defence of duress is not an easy defence to explain to the legally trained, let alone a jury of twelve lay persons. I am satisfied that this jury knew that the defence of duress required the Crown to prove, beyond a reasonable doubt, that the accused did not believe he had no genuine safe avenue of escape and that a reasonable person in his circumstances would not think that there was no reasonable avenue of escape.

D.

Conclusion

[46]

In
    my view, the Crown has not met its heavy burden and I would dismiss the appeal.

Released:    April 17, 2013 JCM

J.
    MacFarland J.A.

I
    agree J.C. MacPherson J.A.

I
    agree S.E. Pepall J.A.

[1]
The two shared the same mother but had different fathers.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blain, 2013
    ONCA 224

DATE: 20130408

DOCKET: C54155

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Norman Blain

Respondent

Gillian Roberts, for the appellant

Leo Adler and Patrick Quilty, for the respondent

Heard: March 28, 2013

On appeal from the acquittals entered on July 22, 2011 by
    Justice Peter H. Wilkie of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The respondent was charged with accessing and possessing child
    pornography.  He was acquitted of all charges following a combined
Charter
/voluntariness
voir dire
.  Among other things, the trial judge found that the Crown had
    not met its burden of proving that statements allegedly made by the respondent
    to the police, both before and after his arrest (the Statements), were
    voluntary.

[2]

The Crown appeals.

[3]

At the oral hearing of the appeal, the court found it unnecessary to call
    on the respondent.  It advised the parties that the appeal was dismissed and
    that reasons would follow shortly.  These are the promised reasons.

[4]

Crown counsel has acknowledged that the crux of the appeal is the trial
    judges determinations on the voluntariness of the Statements.  Further, she
    acknowledged that if she fails on this issue, the balance of the appeal falls.

[5]

We see no basis on which to interfere with the trial judges
    determinations on the fundamental issue of voluntariness.

[6]

The Crown bore the burden of proving that the Statements made to the
    police were voluntary.  In finding that the Crown failed to meet its onus, the
    trial judge relied on his findings that (1) the record was incomplete and
    inaccurate, and (2) the evidence of the two police officers who testified on
    the
voir dire
was neither credible nor reliable.

[7]

These findings were fully available to the trial judge.  Contrary to the
    Crowns submission, the trial judge did not find a reasonable doubt because of
    the absence of a verbatim record of the interaction between the respondent and
    the police.  Rather, the trial judge considered all of the evidence put forward
    by the Crown.  He gave detailed reasons setting out the notable inconsistencies
    in the officers testimony and explained why he was not satisfied that the
    evidence of the police officers accurately or completely set forth the sequence
    of events or the details of the encounter.

[8]

Furthermore, the trial judge made detailed, specific findings of the
    highly unsatisfactory state of the record. While he concluded that his
    findings on voluntariness were in large measure due to the absence of an
    accurate, complete or reliable record of what occurred, the trial judge himself
    noted that he did not require a verbatim account.  He observed that the quality
    of the record was something entirely within the power of the authorities to
    determine, in circumstances fully orchestrated by the police.  They had
    complete control over the pace of the investigation, where and when it would
    proceed, who would be involved and what equipment or aids would be utilized.
    Given that the officers were operating in a relatively controlled environment
    where they knew in advance that an important conversation with a suspect was
    about to occur, the trial judge concluded that it was reasonable to expect that
    they would take reasonable steps to protect the integrity of the record. He
    found that was not done.

[9]

In the circumstances, the trial judge could not be satisfied that the Statements
    were voluntary  that is, he could not be satisfied that they were made without
    threats, promises or inducement.  We see no basis on which to interfere with
    that determination.

[10]

Accordingly,
    the appeal is dismissed.

Janet Simmons J.A.

E.A. Cronk J.A.

E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bouzied, 2013 ONCA 276

DATE: 20130429

DOCKET: C55072

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Bouzied

Appellant

Susan Ficek, for the respondent

Scott Hutchison, duty counsel for
    Michael Bouzied

Heard
    & released orally: April 17, 2013

DOCKET: C55583

AND BETWEEN

Her Majesty the Queen

Respondent

and

Adam
    Alexander Wade

Appellant

Robert Sheppard, duty counsel for Adam Wade

Susan Ficek, for the respondent

Heard April 16, 2013 and
    released orally April 17, 2013

On appeal from the conviction entered on December 23,
    2011 and the sentence imposed on February 2, 2012 by Justice Lynne C. Leitch of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

On July 15, 2010, two men, armed with a gun and wearing disguises,
    robbed a Subway sandwich restaurant in London and drove off in a van. The
    appellants appeal their convictions for the crime.

[2]

The Crowns case was circumstantial. The guilt of the appellants had to
    be the only rational inference that could be drawn from the circumstantial
    evidence as a whole.

[3]

The police had been watching the van that evening. Earlier Ashley King had
    been driving it. The van had made stops, including one at Mr. Bouzieds
    residence, and had picked up people. Before the robbery it had stopped at a Tim
    Hortons drive-through. Two persons, one taller than the other and wearing
    black hoodies, got out of the van and robbed the Subway restaurant. The van had
    begun to move before the robbers got back into it. The police followed the van,
    but lost it. Minutes later they found it parked two kilometres away. The
    appellants were close by and walking away from the van when they were arrested.
    They were wearing shorts and t-shirts. No guns or bandanas were found. Mr.
    Bouzieds thumbprint was on the exterior of the van. His cell phone was in the
    van, though it was evidently being used by someone else as he had called it. A
    black hoodie in the van had Donald Skelletts DNA on it. DNA on two Tim
    Hortons cups in the van belonged to Christopher Miller and a female. There was
    a significant height difference between Skellett and Miller, as there was
    between the two appellants.

[4]

The trial judge could infer from the evidence that the appellants were
    occupants of the van at the time of the robbery. However, that both or either
    of them robbed the Subway was not the only rational inference from the
    evidence. There was evidence of other possible suspects. The evidence did not
    establish how many people were in the van when it left the scene of the
    robbery. There were at least three because it moved before the robbers entered
    it. As well, the DNA evidence suggested that there were other occupants. Millers
    fingerprints were also found in the van. The evidence established that it was
    possible for occupants of the van to have already left the scene before the
    police arrived. That is clear because the third person definitely known to be
    in the van had disappeared.

[5]

The trial judges analysis focussed only on the appellants as a pair and
    on Skellett and Miller as an alternate pair. She did not consider other
    possible combinations. When this is kept in mind, the slim identification evidence
    about the relative heights and weights of the robbers loses its force. That the
    appellants, or one of them, entered the Subway and robbed it was not the only
    rational inference from the evidence.

[6]

In conclusion, we would allow the appeal, set aside the verdicts of
    guilty and direct the entry of verdicts of acquittal. We find it unnecessary to
    address the other arguments advanced.

R.G. Juriansz J.A.

J. MacFarland J.A.

S.E. Pepall 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. D.S., 2013
    ONCA 244

DATE: 20130418

DOCKET: C54958

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

D.S.

Respondent

Peter Scrutton, for the appellant

Misha Feldmann, for the respondent

Heard: March 27, 2013

On appeal from the sentence imposed by Justice Laurence A.
    Pattillo of the Superior Court of Justice on January 9, 2012.

By the Court:

A.

introduction

[1]

Following a jury trial, the respondent, D.S., was convicted of 32 counts
    relating to sexual assaults against his common law partner and domestic
    violence against his partner and four children.  The trial judge imposed a
    sentence of six years imprisonment.

[2]

The Crown appeals the sentence.  The Crown contends that the trial judge
    made several errors in principle in his sentencing reasons and that the
    sentence is manifestly unfit.

B.

Facts

(1)

The parties and events

[3]

The respondent was convicted of 32 offences that took place over the
    almost ten-year period from October 1999 to April 2009.  The offences included
    six counts of sexual assault, 14 counts of assault with a weapon, one count of
    assault causing bodily harm, four counts of assault, five counts of uttering
    threats, one count of possession of a prohibited weapon, and one count of
    breach of a recognizance.

[4]

The respondent sexually assaulted his common law partner, R.B.  The sexual
    assaults occurred on three occasions in 2007 when the respondent came home
    drunk, called his partner a whore, and threatened to kill her if she refused to
    have sex with a friend he had brought home.  Each time, the respondent forced
    his partner to have sex with the friend and then with himself afterwards.  On
    one occasion, the respondent, a martial arts and weapons enthusiast, punched
    his partner in the face with the flat part of a sword handle when she initially
    refused to have sex with the stranger.  On a second occasion, he put the tip of
    a sword blade against his partners neck to force her to have sex with the
    stranger.  On the third occasion, the stranger paid the respondent $50 for the
    sex with his partner.

[5]

The respondent assaulted his partner and four of his five children on numerous
    occasions throughout the ten-year period.  The assaults escalated toward the
    end of the period, from 2006 to 2009.  The assaults were violent and very
    dangerous, often involving weapons such as swords, knives, poles, an axe, a
    meat cleaver, and a homemade spear.  They caused injuries to R.B. and the
    children.

[6]

After his arrest on April 15, 2009, the respondent was released on a
    recognizance.  One of the conditions was that he not communicate with R.B.  The
    respondent breached the recognizance on April 20, 2009 by calling R.B. three
    times in the middle of the night and then sending a text trying to cover up the
    breach.

(2)

The sentencing reasons

[7]

In comprehensive reasons, the trial judge canvassed the details of the
    32 offences arising out of 17 incidents over a ten-year period.  He said that
    the offences here involved a reign of terror... which has destroyed the lives
    of [R.B.] and their sons.

[8]

The only mitigating factors the trial judge found were the strong
    support of the respondents family (not his former partner and children) and
    current girlfriend and the fact that his criminal record was stale-dated, with
    no convictions in the 15 years prior to the case.

[9]

The trial judge listed a number of aggravating factors.  The offences
    consisted of significant physical, verbal and mental abuse.  Serious weapons
    were used in many of the attacks.  The abuse continued over almost ten years,
    with a significant escalation from 2006 to 2009.  The abuse of a common law
    spouse is a statutory aggravating factor, provided for in s. 718.2(a)(ii) of
    the
Criminal Code
.  The abuse of young children was extremely
    aggravating.

[10]

The
    trial judge first determined the appropriate sentence for each offence, then
    whether it should be imposed consecutively or concurrently, and then whether
    the totality principle was offended by the aggregate amount. He imposed a total
    sentence of 26 years and seven months for all of the offences.  Combining only
    the consecutive sentences, the sentence was ten years.  He then said:

I consider, however, ten years to be too great a sentence,
    given all of the circumstances here.  In my view, the totality principle
    requires that I reduce that.  You have effectively no prior time in jail and
    your prior offences go way back.  So Im going to sentence you, sir, in total
    to six years in the penitentiary.  I consider that to be a serious sentence for
    serious misconduct on your part.

[11]

The
    trial judge then credited the respondents two years of pre-sentence custody on
    a 2:1 basis, resulting in a further custodial sentence of two years less a day,
    to be followed by a three-year period of probation.

[12]

The
    Crown appeals this sentence.

C.

Analysis

[13]

A
    trial judge who has presided over a trial, heard the witnesses, and considered
    the evidence should be accorded considerable deference with respect to the
    sentence he or she imposes on a convicted person.  The sentence should be set
    aside only if the trial judge has made an error in principle or if the sentence
    is manifestly unfit: see
R. v. Shropshire
, [1995] 4 S.C.R. 227, at
    para. 46; and
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at paras. 90-91.

[14]

The
    Crown contends that the trial judge made several errors in principle in his
    sentencing reasons, including his application of the totality and jump
    principles, arbitrary assignment of concurrent sentences to some offences, and
    overemphasis of the respondents rehabilitation prospects.

[15]

In
    our view, all of these submissions flow into what we take to be the Crowns
    main submission, namely, that a six-year sentence for this offender and this
    offence is manifestly unfit. As this submission is dispositive of the appeal,
    it is not necessary to address the others.

[16]

The
    respondent committed 32 crimes of violence against his common law spouse and
    four male children.  He did so over a ten-year period, with the violence
    escalating toward the end of the period.

[17]

Here
    is how the trial judge described, in a general way, the respondents assaults
    against his family:

As noted, [the respondent] physically and verbally abused
    [R.B.] first and then later the children on a regular basis.  He would curse at
    them, push or hit them, and in the case of [J.], who had long hair and a pony
    tail, pull his hair.  Often, he would get a knife, a sword or a metal pole or
    poles from the closet in the apartment to facilitate his assaults.  On one
    occasion, he used a spear which hed made by taping a knife to a broom handle.
    He also used a meat cleaver from the kitchen.

His favourite weapon, however, was a sword, of which he had
    many.  He also used the sheath of a sword.  He would wave the sword around in
    front of [R.B.] and the children and hold it up to their face or neck.  At
    times, he would hit them with the flat side of the blade.  On occasion, his
    assaults would cut [R.B.] or the boys and end up leaving a scar.

[18]

Here
    is how the trial judge described, in a general way, the respondents sexual
    assaults on his partner:

In addition to the verbal and physical abuse, [the respondent]
    also forced [R.B.], on three separate occasions, against her will, to have sex
    with his friends and then afterwards to have sex with him.  It was very
    demeaning and upsetting for [R.B.].

[19]

The
    trial judge reviewed the facts underlying each of the 32 offences.  He
    described one incident of assault  sadly, a typical one  in this fashion:

The evidence is that in the summer of 2006, when [J.] was 4, he
    went into [the respondent] and [R.B.s] bedroom in their apartment and locked
    the door.  He didnt know how to open it.  [R.B.] tried to explain to him how
    to open it, but [J.] didnt understand.  [The respondent] got angry and
    frustrated and began to swear at [J.].  He then went to the kitchen and got a
    knife.  He put the knife under the door to scare [J.].  [J.] was saying that he
    didnt know how to open the door and was crying.  [The respondent] kept jamming
    the knife under the door and yelling at [J.].  He told him he was stupid.  [The
    respondent] then went around to the window on the outside of the apartment and
    crawled in the bedroom window. [The respondent] then unlocked the door and [J.]
    came out crying.

During the incident, [the respondent] told [J.], [A.] and [E.]
    they were stupid and he could put a knife into them and kill them.  [The
    respondent] and [R.B.] got into an argument on how to get [J.] out of the
    room.  He pushed her pretty hard up against the wall by the throat at the base
    of her neck.  They kept on yelling at each other.  She said during the
    incident, [the respondent] told her she was an unfit mother and he could kill
    her right there and right now because she was stupid.  She also said that when
    he opened the bedroom door after releasing [J.], he put the knife up against
    her face and said: Im going to kill you.  You are a dumb mother.

[20]

There
    were three incidents of sexual assault that resulted in convictions.  All three
    were quite similar and involved forced sex on R.B. by the respondent and one of
    his friends.  The trial judge described one of these incidents in this fashion:

The evidence is that sometime in 2007, [the respondent] came
    home around 2:00 a.m. after drinking with friends.  [R.B.] and the kids were
    asleep.

[The respondent] came into the bedroom and told her he brought
    someone home for her to sleep with.  She said no.  He told her that if she
    embarrassed him, he would kill her.  She could smell the alcohol and said he
    was intoxicated.  [The respondent] then left the bedroom.

The door then opened and someone came into the room.  She
    thought it was [the respondent] coming back.  She asked who it was.  The person
    responded that [the respondent] said, you are a whore and youre going to sleep
    with me.  She refused.  The person left the room.  She didnt see what he
    looked like.

[The respondent] then came back into the room.  He swore at her
    and told her that she was going to sleep with his friend.  She again refused
    and he punched her in the face with the flat part of a blade of a long handle
    of a silver sword which had a blue jean cloth wrapped around the handle.  She
    felt threatened, hurt, ashamed and very scared.

[The respondent] left and the person, again, entered the room.
    He got into bed.  She said she didnt want to have sex.  He ignored her,
    climbed on top of her and forced his penis into her vagina.  When it was done,
    he got off her and said, thank you for a good time, and left the room.  She was
    crying.

About five minutes later, [the respondent] came back into the
    room.  She was still crying in bed.  He took off his clothes and lay on the bed
    beside her.  He said: Its my turn now.  You serviced my friend; now its time
    for you to service me.  She said nothing.  She was scared and did whatever he
    wanted.  She didnt want to have sex with him at this point.  He climbed on top
    of her, pulled her underwear off, put his penis in her vagina and had sex with
    her.  She lay there and let him do whatever he wanted.  When he finished he
    said to her that thats what a good whore does and then fell asleep.

[21]

The
    descriptions of the assaults and sexual assaults committed by the respondent
    against his common law spouse and children provide overwhelming support for the
    trial judges observation, noted above, that the offences here involved a
    reign of terror... which has destroyed the lives of [R.B.] and their sons.

[22]

The
    victim impact statements by R.B. and the four boys also stand as graphic and
    sad indictments of the respondents attacks on them and the terrible effects of
    those attacks.  The trial judge reviewed them in his reasons.  By way of
    illustration, we set out what the trial judge said about R.B.s and one sons
    statements:

With respect to [R.B.], needless to say, [the respondents]
    actions have had a significant impact on her.  There is no question that she
    was afraid for her safety, for herself and her children, and what [the
    respondent] might do to them both before he was arrested and afterwards.  That
    fear remains with her today.  She talks about having long and painful sleepless
    nights.  She has very little self-esteem and feels she cant trust anyone or
    have another relationship.  She is particularly concerned for the children and
    what [the respondent] has done to them.  The important thing is that she and
    the children are in counselling and are putting their lives back together.  It
    will take a long time, however, and in the meantime she is left to raise the
    children herself.

. . .

[E.] was 11 when [the respondent] was arrested.  He says that
    when his father was in his life he had no fun at school, no friends and all he
    had to look forward to coming home was being beaten.  Hes much happier now and
    feels safer and doesnt want to see or talk to his father again.

[23]

Against
    this background, we agree with the Crown that the six-year sentence imposed by
    the trial judge was manifestly unfit.  The number of offences (32), the number
    of incidents (17), the duration of the attacks (ten years), the escalation in
    the attacks, the number of victims (five), the extreme vulnerability of the
    victims, especially the children, the violence of the attacks, often involving
    dangerous weapons, the stark horror of the sexual assaults involving forced sex
    with a complete stranger, and the significant effects of the attacks on all of
    the victims, require a more substantial punishment.

[24]

In
R. v. D.K.
(2003), 169 O.A.C. 97, this court upheld a ten-year
    sentence on a guilty plea to five counts of sexual assault with a weapon.  The
    offender sexually assaulted his wife five times over ten years using different
    weapons, twice threatening to kill her.  The offences were characterized as
    dehumanizing treatment designed to demean, terrorize, humiliate, and subjugate
    the victim.

[25]

In
R. v. Young
, [2003] O.J. No. 5124, this court upheld an 11-year
    sentence imposed for abuse of a spouse on an almost daily basis for two years,
    punctuated by several acts of unspeakable cruelty involving violence and one
    sadistic sexual assault that went on for several hours.

[26]

In
    our view, this appeal is similar to these cases.  The respondent forced his
    partner to have sex with a stranger on three occasions.  Twice he used a weapon
    to make her succumb.  All of this, in our view, amounts to unspeakable cruelty
    involving violence, designed to demean and humiliate.

[27]

Both
D.K.
and
Young
involved a single victim, a spouse.  In this
    appeal, there is a spousal victim.  However, the respondents reign of terror
    was also visited on four young children, with devastating consequences.

[28]

In
    these circumstances, it is our view that a fit global sentence in this case is
    12 years imprisonment.

D.

disposition

[29]

The
    appeal is allowed and the sentence is varied to 12 years imprisonment.

Released: April 18, 2013 (J.C.M.)

J.C. MacPherson J.A.

R.A. Blair J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Desormeaux, 2013 ONCA 283

DATE: 20130430

DOCKET: C56049

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessica Desormeaux

Appellant

Jessica Desormeaux, in custody

Anida Chiodo, Duty Counsel, for the appellant

Peter Scrutton, for the respondent

Heard and released orally: April 15, 2013

On appeal from the sentence imposed on August 10, 2012 by
    Justice William R. Wolski of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals her sentence on the basis that it is harsh and
    excessive. Before the sentencing judge, the Crown had requested a sentence of
    two years less one day and defence counsel had sought a conditional sentence of
    the same duration.

[2]

The appellant had an appalling record for related offences and was not
    an appropriate candidate for a conditional sentence. She represented a danger
    to the public and there was legitimate concern about the lack of a tightly
    controlled supervision plan.

[3]

The appellants criminal record included at least three prior driving
    offences.  The imposition of a driving prohibition was fully justified.  That
    said, given her offences and based on s. 259(2)(c) of the
Code
, the
    driving prohibition had to be limited to three years.

[4]

Leave to appeal sentence is granted and the appeal is allowed in part.
    The driving prohibition is reduced from lifetime to three years.  The appeal is
    dismissed in all other respects.

R.G. Juriansz J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dirie, 2013
    ONCA 261

DATE: 20130425

DOCKET: C54815

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdi Dirie

Appellant

Abdi Dirie, in custody

Anida Chiodo, Duty Counsel

Peter Scrutton, for the respondent

Heard and released orally: April 15, 2013

On appeal from the conviction entered on October 11, 2011
    by Justice Ian MacDonnell of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

We are not persuaded that the trial judge made any error in admitting
    the evidence of Officer Smissen. He detailed in his reasons on the
voir
    dire
the reason why his evidence would be admitted while that of P.C. Taylor
    would not.

[2]

P.C. Smissen had had dealings with the appellant on the night of his
    arrest. He took photos of the appellant. He paid attention to his features at
    the time and it was that earlier acquaintance with the appellant that enabled
    him to later identify him on the store video taken two hours prior to the
    robbery.

[3]

While the prior acquaintance with the appellant was not lengthy, it was
    in our view, sufficient. The duration of that acquaintance would go to weight
    and not admissibility. As the trial judge noted, his prior acquaintance was at
    a time very close to both events as recorded on the video.

[4]

As to the photos of the accused, when we consider the trial judges
    clear instruction on the dangers of identification evidence, there was no
    unfairness to the accused. As to the inconsistencies in the officers evidence they
    are, in our view, not material. With the number of officers involved in the
    pursuit of suspected robbers, it would be unusual indeed if there werent minor
    inconsistencies and, in any event, these were matters for the jurys
    consideration.

[5]

The appeal is dismissed.

R.G.
    Juriansz J.A.

J.
    MacFarland J.A

S.E. Pepall
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dorah, 2013
    ONCA 273

DATE: 20130429

DOCKET: C55288

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Dorah

Appellant

Matthew Dorah, acting in person

Erica Chozik, duty counsel

Robin Flumerfelt, for the respondent

Heard and released orally:  April 15, 2013

On appeal from the conviction entered on June 30, 2011 by
    Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for sexual assault. Counsel submits
    that the trial judge misapplied the standard of proof, improperly applied a
    different standard of scrutiny to the evidence of the complainant and failed to
    advert to the appellants mistaken belief that there was consent. As such, the
    verdict was unreasonable.

[2]

We do not give effect to these submissions. The trial judge provided
    detailed and thoughtful reasons for decision and was satisfied that the Crown
    had proven beyond a reasonable doubt that sexual intercourse had occurred
    without the consent of the complainant. He found that the appellants testimony
    was riddled with internal inconsistencies and improbabilities and that it was
    contradicted in important respects by the witness called by the appellant. He
    concluded that substantial portions of the appellants testimony were untrue.

[3]

At pp. 19-20 of his reasons, the trial judge expressly recognized that
    rejection of the appellants evidence did not lead inexorably to a conclusion
    that he was guilty and that as the trial judge, he must subject the testimony
    of the complainant to the same degree of scrutiny as that of the appellant.

[4]

In our view, the trial judge proceeded to do so and addressed the
    weaknesses in the complainants testimony including her allegation of having
    made a call to 911. That said, he was satisfied that there was corroboration
    for her account of what happened.

[5]

The reasons read in their entirety do not reveal that the appellants
    evidence was subjected to uneven or unfair scrutiny. See also
R. v. C.R
.
    2010 ONCA 176.

[6]

Based on the evidence before him, it was open to the trial judge to
    conclude that the complainant did not consent to sexual intercourse with the
    appellant and that the appellant knew that she was not consenting.

[7]

Furthermore, there is no air of reality to the argument that a basis for
    considering mistaken belief in consent could be cobbled together from all the
    evidence that the trial judge accepted.

[8]

The appeal is dismissed.

R.G. Juriansz J.A.

J. MacFarland J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dowdall, 2013
    ONCA 196

DATE: 20130402

DOCKET: C55877, C55879, C55880 and C55881

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Barry Dowdall, David Gelineau and Donna Cona Inc.

Appellants

AND BETWEEN

Her Majesty the Queen

Respondent

and

TPG Technology Consulting Ltd.

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Philip McDonald

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Spearhead Management Canada Ltd.

Appellant

William L. Vanveen, for the appellants Barry Dowdall,
    David Gelineau and Donna Cona Inc.

Peter N.
    Mantas, for the appellant TPG Technology Consulting Ltd.

Patrick McCann, for the appellant Philip McDonald

Donald Powell, for the appellant Spearhead Management
    Canada

Denis Pilon, for the respondent

Heard: March 26, 2013

On appeal from the order of Regional Senior Justice
    Charles Hackland of the Superior Court of Justice dated July 18, 2012
    dismissing the appellants application for certiorari of the decision of
    Justice Alder of the Ontario Court of Justice dated October 25, 2011.

ENDORSEMENT

[1]

The appellants appeal the order of Hackland R.S.J. of the Superior Court
    of Justice dated July 18, 2012 dismissing their application for
certiorari
of the decision of Alder J. of the Ontario Court of Justice dated October 25,
    2001.  In that decision, Alder J., acting as a preliminary inquiry judge,
    committed the appellants to stand trial for bid rigging contrary to s. 47 of
    the
Competition Act
and conspiracy to commit bid rigging contrary to
    s. 465(1) of the
Criminal Code
.  The appellants seek an order allowing
    the appeal from Hackland R.S.J.s order and quashing the decision of Alder J.
    and substituting an order discharging the appellants from the charges they
    face.

[2]

The issue on appeal is whether Hackland R.S.J. erred by concluding that
    the preliminary inquiry judge did not make a jurisdictional error when she
    determined that there was some evidence on the basis of which a reasonable jury
    properly instructed could conclude that the Requests for Proposals issued by
    the federal Government were calls or requests for bids or tenders within the
    meaning of s. 47 of the
Competition Act
.

[3]

The appellants main argument on their appeals is, as it was before
    Hackland R.S.J. and Alder J., that the RFPs cannot be considered as calls or
    requests for bids or tenders because they did not result in the appellants
    receiving any contractual entitlement to perform any services.

[4]

We do not accept this submission.

[5]

With one caveat, we accept the analysis and conclusions of Hackland
    R.S.J.  To the extent that his reasons may be taken to suggest that there was
    no Contract B, in the parlance of bid/tender jurisprudence, we do not agree.
    In our view, it does not follow, simply because there was no final binding
    contract for the actual purchase and sale of IT services under the rubric of
    the procurement process in question, that there is no Contract B or that
    there is no call or request for bids or tenders as contemplated by s. 47 of
    the
Competition Act
on the facts.  Other factors  depending upon how
    the evidence develops and is interpreted at trial  may lead to the conclusion
    the appellants and the Government intended to enter into contractual
    arrangements that complied with a bid/tender paradigm as the evolving
    jurisprudence on that concept, and s. 47, envisage.

[6]

With the foregoing qualification, we particularly endorse the following
    comments of Hackland R.S.J. in his reasons:

[38]    I am of the opinion that the preliminary inquiry judge
    was correct in her finding that the many contractual indicia, which she
    described, are sufficient to potentially characterize this procurement process
    as creating a bidding contract.

[39]    The applicants position is that, in circumstances
    where the fundamental nature or goal of the procurement process is merely to
    create a list of potential qualified suppliers with no specific or clearly
    identified project nor commitment to engage any services at all, any proposals
    to obtain such work are simply proposals and not contractual bids or tenders.
    They argue with some force that, without the likelihood of a Contract B as discussed
    in the jurisprudence, there is no Contract A and any proposals furnished in a
    procurement process structured in that manner are not bids or tenders within s.
    47(2) of the
Competition Act
.  I respectfully disagree with this
    submission.  The controlling appellate jurisprudence requires the court to make
    a finding as to whether the parties intended a contract in the sense of
    creating binding rights and obligations with respect to the procurement
    process.  Such an intention is to be inferred from the terms of the RFP and all
    other relevant circumstances.  A term permitting the party issuing the RFP to
    retain the discretion not to proceed to call up work or services is but one
    aspect of the analysis.  The preliminary inquiry judge reasonably concluded that
    there was some evidence to go to the jury on whether this procurement process
    was contractual and, therefore, whether the RFP was a request for bids or
    tenders.

[7]

An accused seeking to quash a committal for trial has a high hurdle to
    overcome.  The Superior Court and this Court may only interfere where the
    preliminary inquiry judge has made a jurisdictional error, such as finding
    there is some evidence where no evidence exists to support the charge.  Here,
    we do not agree that no such evidence exists.  Like the judges below, we are
    satisfied that there is some evidence on the basis of which a properly
    instructed trier of fact could find that the appellants had made bids in
    response to a call or request for bids or tenders within the meaning of s.
    47.

[8]

The appeals are therefore dismissed.

J.C.
    MacPherson J.A.

R.A.
    Blair J.A.

R.G.
    Juriansz J.A.