COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rose, 2020 ONCA 306

DATE: 20200521

DOCKET: C63806 and C63807

Strathy C.J.O., Harvison Young
    and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Conroy Rose and Kharla Rose

Appellants

Ingrid Grant, for the appellants

Ian Bell, for the respondent

Heard: November 26, 2019

On appeal from the convictions entered
    on March 14, 2017 and the sentences imposed on August 22, 2017, by Justice J.
    Morissette of the Superior Court of Justice, sitting with a jury.

Harvison Young J.A.:

A.

Overview

[1]

The appellants Conroy and Kharla Rose are married. They were convicted
    before a judge and jury of several charges in relation to alleged drug
    trafficking. Specifically, Conroy was convicted of three counts of possessing
    proceeds of crime and one count of money laundering, while Kharla was convicted
    of one count of possessing proceeds of crime and one count of money laundering.
    They were self-represented at trial. Both Conroy and Kharla appeal their
    convictions and sentences.

[2]

Conroy and Kharla raise two principal grounds of appeal from conviction:
    1) the trial judge erred in failing to follow the provisions of the
Criminal Code
, R.S.C., 1985, c. C-46
that govern the procedure for
    dismissing an additional juror; and 2) the trial judge erred in admitting evidence
    of Conroys prior convictions, particularly in the form of judicial reasons.

[3]

In addition, Kharla appeals from the dismissal of her claim that she did
    not receive a trial within a reasonable time, as guaranteed by s. 11(b) of the
Canadian Charter of Rights and Freedoms
. Accordingly,
    Kharla seeks a stay of the proceedings against her.

[4]

For the reasons that follow, I would allow the appeals from conviction
    and order a new trial. As a result, I need not address the sentence appeals. I
    would also dismiss Kharlas appeal on the s. 11(b) ground.

[5]

I will only review the facts that are necessary to dispose of this
    appeal.

B.

The Factual Background

[6]

In July 2010, the police executed search warrants at an apartment on
    Oxford Street West and a house on Staffordshire Road in London, Ontario. Conroy
    had signed the lease and paid rent for the apartment. Kharla owned the house.

[7]

A
t the apartment, the police seized about
    $20,000 in cash. At the house,
the police seized 11 safety deposit box
    keys, a key that was later found to unlock the apartment, and a BMW.
Shortly after executing these warrants, the police located seven
    safety deposit boxes in Kharlas name containing over $400,000 in cash.

[8]

The police arrested and charged

Conroy and Kharla with possession of proceeds of crime and money
    laundering. Specifically, Conroy was charged with:

·

Possession of proceeds of crime, particularized as a Honda;

·

Possession of proceeds of crime, particularized as $20,000 found
    in his apartment; and

·

Possession of proceeds of crime, particularized as a BMW.

[9]

Kharla was charged with possession of proceeds of crime, particularized
    as $465,710 found in the seven safety deposit boxes in her name.

[10]

Conroy
    and Kharla were also charged jointly with one count of money laundering. The
    Crown alleged they used proceeds of crime to pay down the mortgage on their
    marital home.

[11]

The
    Crown brought an application in July 2015 to adduce evidence relating to
    Conroys former charges and convictions. As a result of this application,
    significant evidence of Conroys prior convictions was admitted in the form of
    reasons for decision. The details of this will be discussed further below.

[12]

In August and October 2015, Kharla brought a
    pre-trial s. 11(b) application for a stay of the charges against her. The
    application was dismissed.

[13]

The appellants represented themselves at the trial. The jury
    convicted Conroy and Kharla on all counts.

[14]

I will now turn to the three grounds of appeal:

·

The dismissal of the additional juror;

·

The evidence relating to Conroys prior convictions;
    and

·

The dismissal of Kharlas s. 11(b) application.

C.

The Dismissal of the Additional Juror

[15]

The trial began in March 2017.
After 12
    jurors were selected, two extra jurors were sworn in as alternate number one
    and alternate number two. Although the trial judge referred to these jurors
    as alternates, they remained present when the evidence began.

[16]

Shortly after the trial began, one of the first 12 jurors was excused.
    The trial judge ordered that alternate number one would replace the lost juror.
    She also ordered that alternate number two continue hearing evidence.

[17]

At the end of the evidence and prior to closing addresses to the jury,
    the trial judge stated (without the jury present):

So I will discharge the jury [for the weekend] and I am going
    to be discharging the alternate - actually we dont call her alternate we
    call her additional in accordance with the
Criminal Code
.

[18]

When
    the jury was present, the trial judge then dismissed alternate number two,
    addressing her as additional juror number 13. This juror did not participate
    in deliberations. For clarity, I will refer to this dismissed juror as juror
    13.

[19]

Alternate jurors
and additional jurors
    address different concerns and are governed by different procedures of the
Criminal
    Code
. Section 631(2.1) provides that a judge may select one or two
    alternate jurors. Section 631(2.2) provides that a judge may have one or two
    additional jurors sworn.

[20]

Alternate jurors protect against the risk that
    some jurors may be excused, abscond, or be otherwise unavailable between the
    time that the jury is selected and the beginning of the evidence. They are not
    intended to hear evidence. Instead, pursuant to s. 642.1(1), they are present
    at the beginning of evidence to replace any absent juror. This is to prevent
    the need to start the jury selection process anew if numbers have fallen before
    the evidence begins. Section 642.1(2) states that an alternate juror who is
    not required
shall
be excused (emphasis added). Alternate
    jurors are therefore excused before the evidence begins if there is a full jury
    present without them at that point.

[21]

Additional jurors protect against the loss of
    jurors during the course of the evidence, something which may be a particular
    concern during long trials. Unlike alternate jurors, additional jurors are
    intended to remain throughout the evidence. If the additional jurors remain at
    the time deliberations are to begin, s. 652.1 governs the procedure for
    reducing the jury to 12 members:

652.1 (1)
After the charge to the jury, the jury shall retire to try the
    issues of the indictment.

(2)
However, if there are more than 12 jurors remaining, the judge
    shall identify the 12 jurors who are to retire to consider the verdict by
    having the number of each juror written on a card that is of equal size, by
    causing the cards to be placed together in a box that is to be thoroughly
    shaken together and by drawing one card if 13 jurors remain or two cards if 14
    jurors remain. The judge shall then discharge any juror whose number is drawn.

[22]

In short, alternate jurors, by definition,
    remain present only until the evidence begins. At that point, they are excused unless
    one or both are required. Additional jurors, on the other hand, remain until
    the evidence is complete. Before deliberations, the number of the jury members
    must be reduced to 12. This reduction is done
randomly
,
    as required by s. 652.1. There is no such requirement applicable to alternate
    jurors.

[23]

It is common ground that although the trial
    judge used the term alternate to describe the extra jurors early in the
    trial, she treated them as additional jurors, as per s. 631(2.2) of the
Criminal
    Code
, by allowing them to remain
    present throughout the evidence
. The problem is that, before
    deliberations began, she dismissed juror 13, one of the two additional jurors
    chosen, and the last to have been chosen, rather than randomly selecting a
    juror to be dismissed, as s. 652.1(2) of the
Criminal Code
requires.

The Parties Submissions

[24]

The appellants submit that the trial judge
    failed to follow mandatory
Criminal Code
procedures, which resulted in
    an improperly constituted jury. Relying primarily on this courts reasons in
R.
    v. Noureddine
, 2015 ONCA 770, 128 O.R. (3d) 23, at paras. 49-53, the
    appellants suggest the trial judges error deprived them of a statutory right
    in the jury selection procedure. This error is analogous to errors relating to peremptory
    challenges, challenges for cause, or stand-asides. As such, the curative
    proviso in s. 686(1)(b)(iv) of the
Criminal Code
cannot apply.

[25]

The appellants further suggest the trial judges
    errors caused prejudice. A random selection procedure to reduce the jury to 12
    members is necessary to prevent a judge from influencing the jury composition
    to an accuseds disadvantage. The appellants argue the trial judges error
    creates an appearance of unfairness, which warrants a new trial.

[26]

The Crown concedes that the trial judge should
    have randomly dismissed a juror, rather than dismissing juror 13. However, it
    denies that the jury was improperly constituted, because the trial judges
    error arose after the jury was constituted. The Crown relies on s. 643(1) of
    the
Criminal Code
, which reads:

643

(1)
The
    12, 13 or 14 jurors who are sworn in accordance with this Part and
present at the commencement of the presentation of the evidence
on the merits
shall be the jury
to hear the
    evidence on the merits. [Emphasis added.]

Based on this wording, the Crown
    suggests the jury was properly constituted at the commencement of the
    presentation of evidence in this case. Any error after this point does not go
    to the question of whether a jury is properly constituted.

[27]

In addition, the Crown submits that when this
    court has ordered a new trial based on a trial judges error in discharging (or
    failing to discharge) a juror once the trial has commenced, it has been on the
    basis that the error created at least the appearance of unfairness to the
    accused. The Crown says that here, there is no basis to support even the
    appearance that the trial judge hand-picked the final jury composition, as
    the appellants suggest. As such, the error was a mere irregularity, which can
    be saved by the curative proviso under s. 686(1)(b)(iv).

Law and Analysis

[28]

I agree with the appellants submissions on this
    issue. First, the error in failing to discharge a juror randomly under s.
    652.1(2) is analogous to errors regarding a challenge for cause, Crown stand-asides,
    static or rotating triers, or the summoning of talesman. For instance, in
Noureddine
,
    at para. 55, this court wrote that the process used to determine the
    appellants challenges for cause directly contravened the controlling
Criminal
    Code
provisions, and thus the court below was improperly constituted.
    Similarly, in this case, the process used to dismiss juror 13 directly
    contravened s. 652.1(2) of the
Criminal Code
.

[29]

While the jury may have been properly
    constituted at the outset to hear the evidence, it was not properly constituted
    according to s. 652.1(2) when it began to deliberate on that evidence. I see no
    principled distinction arising from the temporal difference between an error
    under s. 652.1(2) and other previously listed errors going to the constitution
    of the jury that could justify treating this error differently. The idea that
    following
Criminal Code
procedures at the beginning of the trial
    effectively operates to insulate the court from the requirements of those
    procedures at a later stage in the trial does not make sense.

[30]

Second, even if the curative proviso could be argued,
    it cannot be said that there was no prejudice caused to the appellants. The
    curative proviso is only successful in cases where the Crown can establish on
    a balance of probabilities that the legal error is harmless in the sense that
    no prejudice resulted or that a trier of fact would inevitably convict:
R.
    v. OBrien
, 2011 SCC 29, [2011] 2 S.C.R. 485, at para. 34.

[31]

Here, the Crown has not met its burden to
    justify the curative provisos application. As this court outlined in
R. v.
    Chouhan
, 2020 ONCA 40, 149 O.R. (3d) 365, leave to appeal granted, [2020]
    S.C.C.A. No. 19, there are various in-court mechanisms to protect against actual
    and apparent jury partiality, such as challenges for cause: at paras. 66-72.
    Similarly, the purpose of s. 652.1(2) is to ensure that the trial judge discharges
    additional jurors impartially. The random dismissal procedure helps prevent a
    trial judge from hand-picking the final composition of the jury based on
    their observations.

[32]

While there is no suggestion of actual
    partiality in this case, the point is that the failure to follow the procedure
    in s. 652.1(2) causes prejudice by tainting the
appearance
of jury impartiality. Proof of actual partiality is not necessary to
    demonstrate prejudice for the purposes of the curative proviso:
Noureddine
,
    at para. 63. Treating the trial judges error as inconsequential would risk
    bringing the administration of justice into disrepute. The curative proviso cannot
    apply.

[33]

I would therefore order a new trial on this
    ground.

D.

The Evidence relating to Conroys Prior Convictions

[34]

In July 2015, the Crown brought a pre-trial
    application to lead evidence of Conroys three prior drug trafficking-related
    charges, dated 2007, 2008, and 2010. The trial judge allowed the application
    only with respect to the 2008 charges, for which Conroy was convicted in 2011
    (the 2008 convictions). The 2008 convictions were for the possession of
    cocaine for the purpose of trafficking and possession of proceeds of crime.

[35]

At the time of the application, the parties
    indicated that they would create an agreed statement of facts to admit the
    evidence of the prior convictions. This did not happen. Instead, at trial, the
    Crown called several officers to testify about the 2008 convictions. The
    following documents were also admitted as evidence for the jurys
    consideration:

·

Tausendfreund J.s reasons for judgment on the
    2008 convictions and sentence;

·

Leitch J.s reasons for judgment on a related
    forfeiture hearing; and

·

An order from the Court of Appeal dismissing
    Conroys appeal from the 2008 convictions.

The Parties Submissions

[36]

The appellants concede that admitting the fact
    of the convictions for possession of cocaine for the purpose of drug
    trafficking was sufficiently probative regarding the origin of the money in the
    present case. However, they argue that 1) admitting the fact of the proceeds
    convictions and 2) admitting the 2008 convictions in the form of the reasons
    for decision was highly prejudicial and warrants a new trial.

[37]

First, they say the proceeds convictions should
    not have been admitted, because they were not relevant to the origin of the
    money, which was the only live issue at trial. Further, the proceeds
    convictions permitted impermissible propensity reasoning. The risk of
    propensity reasoning was particularly high, given that the proceeds convictions
    arose at least in part from the same sources of income in the same time period
    as the case at bar.

[38]

Second, the appellants argue that the reasons
    for judgment relating to the 2008 convictions should not have been admitted and
    filed as exhibits, because they contained more than the fact of the 2008
    convictions. As the reasons in their entirety were admitted, they were
    inevitably imbued with the inherent authority of another judges decision that could
    readily overwhelm a jury. Moreover, they were comprised in essence of a blend
    of hearsay and expert opinion, which both call for careful jury instructions as
    to the proper use of such evidence. No such jury instructions were given.

[39]

In response to the first issue, the Crown
    submits that the proceeds convictions were highly probative and minimally
    prejudicial. Specifically, the proceeds convictions were important additional
    evidence of Conroys commercial drug trafficking, which was relevant to the origin
    of the assets in the case at bar.

[40]

In response to the second issue, the Crown
    concedes that the trial judge failed to balance the probative value against the
    prejudicial effect of the manner in which the prior convictions were entered
    into evidence. It maintains that negligible prejudice resulted, because the
    Crown called testimonial evidence from four witnesses that amply supported the
    contents of the exhibited reasons. In addition, Conroy had the opportunity to
    cross-examine these witnesses. There was little to suggest that a challenge to
    the 2008 convictions or the evidence underlying those convictions would have
    succeeded.

[41]

The Crown concedes that the forfeiture ruling
    should not have been admitted into evidence. However, it argues that there is
    no reasonable possibility that the verdict could have been different.

Law and Analysis

[42]

Evidence of prior discreditable conduct is
    presumptively inadmissible:
R. v. Stubbs,
2013 ONCA 514, 300 C.C.C.
    (3d) 181, at paras. 54-56. It is only admissible where its probative value to
    the charges on the indictment outweigh their prejudicial effects. On appeal, a
    trial judges decision to admit this kind of evidence is generally entitled to
    deference unless it is unreasonable, tainted by legal error, or cumbered by a
    misapprehension of the material evidence:
Stubbs
, at para. 66.

[43]

The trial judge found the prior convictions for
    the 2008 offences, including the proceeds convictions, to be admissible. This
    finding is entitled to deference:
Stubbs
, at para. 58. However, the
    2008 convictions were admitted in a highly problematic manner. The trial judge
    did not balance the probative value and the prejudicial effect of the findings in
    the reasons that were made exhibits at trial. To admit these three sets of
    reasons without considering this balance is an error and this decision is thus not
    entitled to deference.

[44]

Had the trial judge conducted the balancing
    exercise, it is difficult to see how she could have admitted the reasons. They contained
    findings of fact and opinions that were more prejudicial than probative of the
    source of money in this case. For instance, Tausendfreund J.s reasons for conviction
    state that the activity viewed and observed by the police that evening were
    consistent with the accused trafficking in an illicit drug. However, in the
    present case, Conroy was not charged or convicted of trafficking; the admitted
    convictions were for possession of cocaine for the purpose of trafficking, and
    possession of proceeds of crime.

[45]

Moreover, Tausendfreund J.s sentencing reasons
    state that there is no doubt in my mind that Mr. Rose was involved in a well-organized
    and not on a small scale illicit drug marketing scheme. As the appellants
    highlight, Tausendfruend J.s findings on this point arguably addressed
    aggravating factors in sentencing, rather than inherent elements of the
    conviction.

[46]

In any case, Tausendfreund J.s sentencing
    reasons should not have been admitted at all because they were not probative of
    the source of the proceeds in this case. Similarly, and as the Crown concedes,
    there was no basis for admitting Leitch J.s forfeiture order and reasons.

[47]

The Crown argues that there is no reasonable
    possibility that the verdict could have been different. I disagree. The jury
    was presented with three sets of reasons that contained judicial findings that went
    well beyond the fact of Conroys prior convictions and as such, significantly increased
    the possibility of impermissible propensity reasoning. As authoritative
    statements from a judge, there was a particularly high risk that these findings
    would overwhelm the jurys own fact finding.

[48]

This error was further compounded by inadequate
    jury instructions regarding the prior convictions and exhibited reasons. When
    instructing the jury on the element of whether the BMW, Honda Civic, and
    $20,000 were obtained by crime, the trial judge simply stated:

Now, evidence was adduced from some witnesses
    with respect to the 2008 chargesYou have as part of Exhibits 23, 24 and 25 the
    decisions of Justice Tausendfreund, issued on September 13th, 2011, who
    convicted Conroy of possession of proceeds of crime in relation to the money he
    had in his seven bank accounts, and found him guilty of possession for the
    purposes of trafficking in cocaine.

[49]

The trial judge did not give guidance on how
    these reasons could be used. Later  when instructing the jury on the element
    of whether Conroy knew the property had been obtained by or derived from crime
     the trial judge told the jury to analyze the prior convictions as similar
    fact evidence. This is despite the fact that, as the Crown concedes, the
    evidence of Conroys prior convictions was
not
similar fact evidence as understood in
R. v. Handy
, 2002 SCC 56, [2002]
    2 SCR 908.

[50]

In these circumstances, admitting the three sets
    of reasons in the absence of adequate correcting instructions was a fatal
    error, regardless of whether the fact of the 2008 proceeds convictions should
    have been admitted. I would order a new trial on this ground as well.

E.

The Dismissal of Kharlas s. 11(b) application

[51]

Gorman J., the application judge, began by
    noting the inordinate delay of five years, two months and 11 days between
    Kharlas arrest on August 3, 2010, and her anticipated trial date on October
    14, 2015. As she issued her ruling before
R. v. Jordan
, 2016 SCC 27, [2016]
    1 S.C.R. 631, the application judge applied the test for assessing unreasonable
    delay in
R. v. Morin
, [1992] 1 S.C.R. 771.

[52]

She found that this was an inherently complex
    case involving separate investigative entities, which excused longer periods of
    delay. She noted that Conroy had changed counsel three times and Kharla had
    changed counsel twice, which contributed to the delay. Overall, she found:

·

the total neutral delay was 27 months and 22
    days;

·

the total Crown delay was 3 months and 6 days;

·

the total defence delay was 6 months and 14 days;
    and

·

the institutional delay was 19 months and 14
    days.

[53]

Having done so the application judge stated
    that:

While the overall length of delay is
    concerning, when examination is made of the relevant periods it cannot be said
    that the Crown did anything but make efforts to move the case along. This is a
    complex case with several players. There were clearly attempts at
    resolutionwhich necessitated adjournments. Further, the shifting of counsel
    did nothing to improve the pace of the litigation.

[54]

Through an affidavit, Kharla stated she had lost
    her job and been unable to find alternative work. However, she had not tried to
    find employment since 2013. The application judge noted that several of the
    most stringent bail conditions (such as non-association with Conroy, along with
    the reporting clause) had been deleted. The application judge concluded that
    Kharla had not suffered prejudice.

[55]

The application judge also emphasized that the
    charges were serious. She cited
R. v. Seegmiller
(2004), 191 C.C.C.
    (3d) 347 (Ont. C.A.), for the proposition that the absence of meaningful
    prejudice to the accused can lengthen the period of delay that is
    constitutionally tolerable, particularly where there is a heightened social
    interest in a trial on the merits. She then concluded:

A judicial stay of proceedings must only be
    granted in the clearest of cases. In my view, this is not such a case. In all
    of the circumstances I am not persuaded that [sic] delay was unreasonable.
    Accordingly the Application is dismissed.

The Parties Submissions

[56]

Kharla submits the application judge erred in
    three main ways: 1) she denied a stay of proceedings based on the clearest of
    cases test, which does not apply to s. 11(b) applications; 2) she failed to
    scrutinize the pace of disclosure and the lack of explanation for delays in
    disclosure; and 3) she failed to consider inferred prejudice. Kharla asserts
    delay based on the anticipated trial date at the time of the s. 11(b)
    application, October 14, 2015. She does not rely on any periods after this date
    for the purpose of her s. 11(b) claim of unreasonable delay.

[57]

The Crown argues that where the application
    judge made errors in characterizing specific time periods, her errors favoured
    Kharla. As for prejudice, the Crown emphasizes that Kharla does not challenge
    the underlying facts that led the application judge to reject her argument that
    she had suffered prejudice. The Crown submits that when the time periods are
    characterized properly, the delay in this case is reasonable. The case was
    inherently complex and there were significant periods of defence-caused delay.

Law and Analysis

[58]

The application judge incorrectly cited the
    clearest of cases test when refusing a stay of proceedings. While a stay of
    proceedings is to be treated as a remedy of last resort for other
Charter
violations, a stay is the minimal remedy for a s. 11(b) violation:
R. v.
    Steele
, 2012 ONCA 383, 288 C.C.C. (3d) 255, at paras. 30-31.

[59]

Having said this, the application judge
    correctly found that the delay in this case was reasonable.

[60]

To begin, I note that Kharlas s. 11(b)
    application was decided a little under one year before
Jordan
was
    released. The
Jordan
framework applies to cases in the system prior to
Jordan
s

release.

[61]

Under
Jordan
,

the presumptive
    ceiling for a case tried in the superior courts is 30 months from the date of
    arrest. Once the presumptive ceiling is exceeded, the Crown bears the burden of
    rebutting the presumption of unreasonableness, based on exceptional
    circumstances. If the Crown cannot do so, a stay will follow. An exceptional
    circumstance is the only basis upon which the Crown can discharge its burden to
    justify a delay that exceeds the presumptive ceiling.

[62]

For cases that were in the system prior to
Jordan
s
    release, transitional exceptional circumstances may justify a delay that exceeds
    a presumptive ceiling. In
R. v. J.C.P.
, 2018 ONCA 986, at para. 20,

this court explained whether and how transitional exceptional circumstances
    may apply:

[T]he Crown must satisfy the court that the
    time taken in the case is justified based on the parties reasonable reliance
    on the law as it previously existed under
R. v. Morin
, [1992] 1 S.C.R.
    771. This requires the court to undertake a contextual assessment of the delay,
    sensitive to the manner in which the previous framework was applied, and to the
    fact that the parties behaviour cannot be judged strictly, against a standard
    of which the parties had no notice. Consideration of the seriousness of the
    offences, prejudice to the accused, and the parties general level of diligence
    may inform whether the parties reasonably relied on the previous state of the
    law. [Citations omitted.]

[63]

The first step in the
Jordan
analysis
    is to determine the total delay between the charges and the anticipated end of
    the trial. The total delay here was about 63 months and one week, from August
    3, 2010 to November 11, 2015. The anticipated trial end date was based on the fact
    that, at the time of s. 11(b) application, the trial was to begin on October
    14, 2015 and last for four weeks.

[64]

The next step is to determine whether the
    defence waived or caused any of the delay. The application judge found that the
    6.5-month period from November 26, 2012 to June 10, 2013 was for a defence
    adjournment request and constituted defence delay. Kharla does not dispute this
    characterization. I agree this 6.5-month period constitutes defence delay.

[65]

The Crown suggests the following periods are also
    defence delay:

·

June 17 to September 30, 2011: defence
    adjournment requests pending results of Conroys trial on the 2008 offences;

·

September 30, 2011 to December 20, 2011:
    adjournments for possible resolution, with an explicit s. 11(b) waiver from
    November 29 to December 20; and

·

December 20, 2011 to January 13, 2012: defence
    attempts to obtain instructions for resolution.

[66]

I agree that these listed periods, which equal roughly
    6 months, should be treated as defence delay. Collectively, then, the defence
    delay is 12.5 months and must be deducted from the total delay of 63 months and
    one week. The resulting net delay is 50.75 months, which exceeds the 30-month
    presumptive ceiling in
Jordan
.

[67]

As such, the Crown must show that the time the
    case has taken is justified by exceptional circumstances. It relies on the
    transitional exceptional circumstance. For this reason, the
Morin
analysis must be applied. Under
Morin
, the following factors are
    relevant for determining whether delay is unreasonable:

1.

The length of the delay;

2.

Waiver of time periods;

3.

The reasons for delay, including:

a.

The accuseds actions;

b.

The Crowns actions;

c.

Limits on institutional resources; and

d.

Other reasons for delay; and

4.

Prejudice to the accused.

[68]

Kharla advances only one recharacterization of
    delay periods. She suggests that a substantial portion of August 3, 2010 to
    November 29, 2011, should be seen as Crown instead of neutral delay, due to
    delays in providing disclosure.

[69]

I do not agree. I have already found that the
    period from June 17, 2011 to December 20, 2011 was defence delay. During the rest
    of the impugned period, the parties focused on resolution rather than setting
    dates.

[70]

The Crown concedes that it may have taken
    excessive time to unseal the relevant warrants, but maintains this did not
    substantially affect the delay in this case. This is supported by the record.
    For instance, the absence of the warrants did not appear to prevent a focus
    hearing from occurring on April 19, 2011, and a first judicial pre-trial on May
    3, 2011.

[71]

I agree with the Crown that the five-month
    adjournment from June 17, 2013 until November 19, 2013 of the preliminary
    hearing should be considered as neutral delay. Counsel for Kharla made a clear
    concession on this point at the hearing, as evidenced in the transcripts.

[72]

I also find that the institutional delay in
    awaiting the anticipated trial date is about six months, from April 7, 2015 to
    October 14, 2015. Institutional delay does not necessarily begin from the set
    date. Instead, institutional delay only begins to run when the parties are
    ready for trial and the system cannot accommodate them:
Morin
, at pp.
    794-795; see also,
R. v. Picard
, 2017 ONCA 692, 137 O.R. (3d) 401, at
    paras. 92-102, leave to appeal refused, [2018] S.C.C.A. No. 135.

[73]

In this case, on February 18, 2015 and April 7,
    2015, there was a judicial pre-trial to discuss pre-trial motions and clarify
    related issues. This demonstrates the parties were not ready to begin trial
    until April 7, 2015, at the earliest.

[74]

At most, the total institutional delay is 16
    months and 12 days, as follows:

·

March 26, 2012 to November 26, 2012: awaiting
    preliminary hearing;

·

June 6, 2014 to August 11, 2014: awaiting
    decision on committal; and

·

April 7, 2015 to October 14, 2015: awaiting
    trial.

[75]

This falls under the 18-month
Morin
guidelines for institutional delay. The Crown delay is two months and 13 days,
    from January 13, 2012 to March 26, 2012, a period where the Crown was awaiting
    a witness list for a focus hearing. The defence delay is 14 months, as
    indicated earlier. The remaining delay is neutral.

[76]

Regarding prejudice under the
Morin
framework,
    the application judge correctly concluded that Kharla did not suffer any
    specific prejudice. While she did not explicitly consider inferred prejudice, I
    find that any inferred prejudice would not outweigh other relevant
    considerations. Kharla did not seriously raise Crown missteps that render the
    delay otherwise unreasonable. Additionally, the parties agree this was a
    complex prosecution on serious charges.

[77]

In these circumstances, which occurred entirely
    pre-
Jordan
, the delay was reasonable under the
Morin
framework. The release of
Jordan
should not automatically transform
    what would previously have been considered reasonable delay into an
    unreasonable one:
Jordan
,

at para. 102. The situation here
    is akin to that in
R. v. Barna
, 2018 ONCA 1034, 371 C.C.C. (3d) 217, at
    para. 7, where this court wrote:

The relative complexity of the case, the fact
    the period of institutional delay  fell within (albeit at the upper limits) of
    the
Morin
guidelines, and the seriousness of the charges, weighed
    against the prejudice to the accused, support the application of the transitional
    exceptional circumstance in this case.

[78]

This is not a case like
J.C.P
or
Steele
,
    where the institutional and Crown delay make up a majority of the total delay,
    and the institutional delay exceeded the
Morin
guidelines:
J.C.P
,
    at paras. 46-52;
Steele
, at paras. 34-36. The application judge did
    not err in dismissing Kharlas s. 11(b) application in the circumstances.

F.

DISPOSITION

[79]

The trial judge erred in failing to dismiss an
    additional juror according to the procedure under s. 652.1(2) of the
Criminal
    Code
. The trial judge also erred in allowing the Crown to file reasons for
    judgment relating to Conroys 2008 convictions. The application judge did not
    err in dismissing Kharlas s. 11(b) application. For these reasons, I would
    allow the appeal, set aside the convictions and order a new trial.

Released: May 21, 2020

GRS

A. Harvison Young J.A.

I agree G.R. Strathy C.J.O.

I agree M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sangster, 2020 ONCA 332

DATE: 20200528

DOCKET: M51545 (C65913)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Alexander
    Sangster

Applicant

Erin Dann, for the applicant

Gerald Brienza, for the respondent

Heard: May 20, 2020 by Videoconference

REASONS
    FOR DECISION

A.

Overview

[1]

The applicant, Alexander Sangster, applies for
    bail pending his conviction and sentence appeal. Following a trial by judge
    alone, he was convicted on March 27, 2018 of aggravated assault, assault
    causing bodily harm, pointing a firearm, careless use of a firearm, and
    possession of a loaded prohibited firearm. He also pleaded guilty to failing to
    comply with his recognizance by writing a letter to his girlfriend to inquire
    about the welfare of her and their child, while prohibited from doing so. He was
    sentenced on April 25, 2018 to seven years and seven months, less 497 days of pre-trial
    custody credit, leaving six years and 81 days to serve. He has not previously
    applied for bail.

[2]

The Crown opposes the application, contending
    that the applicant has failed to establish that his detention is not necessary
    in the public interest under s. 679(3)(c) of the
Criminal Code
, R.S.C.
    1985, c. C-46.

[3]

For the reasons that follow, I grant the
    application.

B.

Background

[4]

The convictions under appeal arose from events
    on the evening of May 29, 2017 at the apartment of Ms. Sasha Strickland and Mr.
    Ryan Davey in Huntsville, where the applicant lived with his girlfriend, Ms. Samantha
Lambertsen-Downing
. The evening was fueled with drugs
    and alcohol. Several altercations ensued.

[5]

The applicant was convicted of assaulting Ms.
    Lambertsen-Downing and causing her bodily harm; aggravated assault by stabbing
    his friend and neighbour, Mr. Courtney Carpenter, when Mr. Carpenter tried to
    protect his wife, whom the applicant attacked when she intervened to protect Ms.
    Lambertsen-Downing; and possessing a loaded prohibited sawed-off shotgun and
    pointing it at Mr. Davey when he asked the applicant to stop attacking Ms.
    Lambertsen-Downing.

[6]

The applicant was arrested the next morning. Two
    representatives of the Childrens Aid Society (CAS) had come to the apartment
    because they had concerns about Ms. Strickland, who had a young daughter in the
    care of the CAS. A police officer was at the building because Mr. Carpenters
    sister had advised the police during an unrelated traffic stop that Mr.
    Carpenter had been stabbed. The CAS asked the police officer to come with them.
    The CAS asked Ms. Strickland for permission to enter. She agreed, and the CAS
    and the police officer came in. The CAS then asked Ms. Strickland if they could
    look in the bedroom. She agreed again. When one of the CAS representatives entered,
    she saw the applicant lying on the bed clutching a sawed-off shotgun. She screamed
    that the applicant had a gun. The police officer immediately removed everyone
    from the apartment and saw the applicant appear to hide the shotgun under the
    mattress. The officer arrested the applicant, who told him, be careful its
    loaded. The officer called for backup, lifted the mattress, and found the
    shotgun. The officers preserved the scene until a search warrant was obtained
    and then seized the shotgun under the warrant.

[7]

At trial, the applicant applied to exclude the
    evidence derived from the search of the apartment, alleging that the CAS and
    the police breached his rights under s. 8 of the
Charter
. The trial
    judge found that the applicant was a guest of the tenant, Ms. Strickland. He
    found Ms. Strickland had consented to the search and that the search was
    voluntary. He accepted that a tenants guest has some expectation of privacy,
    as against the state actors, such as the CAS and the police but found the
    applicant was a mere over holding guest [and] had no reasonable expectation of
    privacy interests. He found that the applicant had no expectation that Ms.
    Strickland could not consent to a search of the apartment or the bedroom. He
    concluded that the applicants s. 8
Charter
rights were not infringed.
    Even had he found a breach of s. 8, he concluded that any breach was minor and
    would not have warranted exclusion of the evidence under s. 24(2).

[8]

The trial judge made credibility findings for each
    of the witnesses who testified and found beyond a reasonable doubt that the
    applicant had stabbed Mr. Carpenter, assaulted Ms. Lambertsen-Downing
    causing her bodily harm, and possessed a prohibited weapon that he pointed at
    Mr. Davey. He sentenced the applicant to a total sentence of seven years and
    seven months, less credit for pre-trial custody.

C.

Analysis

[9]

To obtain bail pending appeal under s. 679(3) of
    the
Criminal Code
, the applicant must establish that: (1) the appeal
    is not frivolous (s. 679(3)(a)); (2) he will surrender himself into custody in
    accordance with the terms of the order (s. 679(3)(b)); and (3) his
    detention is not necessary in the public interest (s. 679(3)(c)).

[10]

The applicant has met his onus under the first
    two grounds in s. 679(3). There is no dispute that the appeal meets the very
    low bar for being not frivolous under s. 679(3)(a):
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. Nor does the Crown dispute that the
    applicant will surrender into custody in compliance with a bail order as
    required under s. 679(3)(b).

[11]

The Crown opposes bail only on the third ground,
    s. 679(3)(c). The Crown submits that the applicant has failed to establish that
    his detention is not necessary in the public interest.

[12]

The public interest criterion under s.
    679(3)(c) has two elements: public safety and public confidence in the
    administration of justice:
Oland
, paras. 23, 26.

[13]

I will first address public safety.

Public safety

[14]

Public safety considerations under s. 679(3)(c)
    relate to the protection and safety of the public:
Oland
, at para. 24.
    Bail is not denied for everyone who poses a risk of committing an offence or
    interfering with the administration of justice while on bail. To be denied bail
    for public safety considerations, (i) an individual must pose a substantial
    likelihood of committing an offence or interfering with the administration of
    justice; (ii) the substantial likelihood must endanger the protection or
    safety of the public; and (iii) the individuals detention must be necessary
    for public safety:
R. v. Morales
, [1992] 3 S.C.R. 711, at p. 737;
R.
    v. Stojanovski
, 2020 ONCA 285, at para. 18.

[15]

Public safety considerations alone can justify refusing
    bail in the public interest. And, even where an applicant meets the public
    safety threshold, residual public safety concerns or the absence of any public
    safety concerns should still be considered as part of the public confidence
    analysis:
Oland
, at para. 27.

[16]

The applicant concedes that the offences for
    which he was convicted were very serious and violent, but submits that there is
    no longer a substantial likelihood he would commit any offence, let alone a
    violent one, or interfere with the administration of justice if released on
    bail pending appeal. He therefore says his detention is no longer necessary for
    public safety. He notes that the convictions under appeal arose from his longstanding
    drug and alcohol addiction that he has learned to manage while in custody. He has
    participated in Alcoholics Anonymous and Narcotics Anonymous and other programs
    at the Beaver Creek Institution. He has been sober now for over 2 years.

[17]

Reports prepared by the Beaver Creek Institution
    in September, 2019 and March, 2020 confirm the applicant has made substantial
    progress in managing his addiction and his personal risk factors:

·

The September 2019 report notes substantial
    gains in the applicants ability to recognize and address problems and confirms
    that he has been sober for two years. It notes that he participated in a
    methadone program, communicates positively with staff, has improved relations
    with his family as a result of his sobriety, and is determined to set
    boundaries with anyone who uses drugs, whereas previously he was never sober
    and began to become more violent and aggressive the more drugs he used. The
    report notes that he has made sobriety his number one priority and has planned
    a continuum of care using community supports. His rated ability and commitment
    to manage his thinking that justifies and supports the use of violence, partner
    violence, and general violence has improved from needs a lot of improvement to
    moderate. The report concludes that the applicants current overall ability
    and commitment to use the skills required to manage his various risk factors
    improved and is currently rated as good.

·

The March 2020 report highlights continued
    improvement. It confirms that the applicant conducts himself respectfully with
    staff, has successfully completed his correctional programs, is enrolled in
    school, and has maintained employment. It notes that his risk to public safety
    is reduced from moderate to low. The report states that he has demonstrated
    accountability for his offences and [t]here are no indicators of substance
    abuse during his incarceration. The report also states that [h]e is not
    currently assessed to be a candidate for detention. It concludes that he has
    demonstrated limited negative conduct and there is no evidence of violent
    behaviour or substance abuse institutionally.

[18]

There is, however, evidence of the applicant
    having had one slip in maintaining sobriety while in custody  though it is
    evidence from the applicant himself. In his affidavit in support of bail, the
    applicant states: I have worked hard and have been sober while in custody
    except for one slip, when I consumed alcohol. Though my drinking was not
    discovered by the prison authorities, I told my parole officer that I consumed
    alcohol. This candour suggests that the applicant takes his addiction very
    seriously and is determined to maintain sobriety.

[19]

The applicant says that the court can also have confidence
    about public safety because of his plan of release. It includes him living with
    his mother, his proposed surety; observing a curfew; attending substance abuse
    counselling and Alcoholics Anonymous and Narcotics Anonymous meetings as
    directed by her; not possessing any weapon; and not having any contact with Ms.
    Lambertsen-Downing (with whom he has apparently reconciled and who is the
    mother of their young daughter), except with her prior written orally revocable
    consent and in the presence of another adult; and having no contact with other named
    individuals. His mother, who has never been charged with any criminal offence, has
    pledged $10,000 as surety, which is almost a third of her pre-tax annual income.
    She has been in regular contact with Ms. Lambertsen-Downing and her now two-year-old
    granddaughter, born while the applicant was in custody.

[20]

The Crown does not assert that public safety
    considerations alone justify refusing bail in this case. Still, the Crown
    highlights that the applicant was convicted of very serious offences involving
    violence and a loaded prohibited weapon. While the Crown accepts that the
    applicants criminal behaviour was likely fueled by a serious drug problem, it
    highlights that this problem is longstanding. The Crown also notes that the applicant
    has a prior criminal record, including two impaired driving convictions in 2010
    and 2015, one resist arrest conviction, and a conviction for failing to comply
    with recognizance. The Crown says that the court cannot take comfort from the applicants
    mother as his proposed surety because she was unable to affect her sons drug
    and alcohol problem for many years and he has been violent towards her in the
    past. The Crown also suggested that the applicants pre-sentence report dated
    April 24, 2018 gives a better sense of his character and the depth of his
    addiction.

[21]

As noted, the breach of recognizance, to which
    the applicant pleaded guilty, involved him writing a letter to Ms.
    Lambertsen-Downing to ask about her welfare and the welfare of their child. The
    sentencing judge noted that it did not involve any attempt to obstruct justice
    or any sort of threatening behaviour.

[22]

But I agree with the Crown that, based on the pre-sentence
    report alone, bail would not have been appropriate. That report noted that the applicant
    was then in denial about his drug and alcohol addiction and posed a high-risk
    to reoffend. The situation is, however, markedly different today.

[23]

The evidence on this application suggests that
    the applicants past criminal behaviour was strongly associated with drug and
    alcohol addiction. The applicant now admits that he is an addict and he has
    sought treatment. He has been sober for over two years. He is evaluated very favourably
    by his institution. While I accept that if the applicant relapses there may be
    a risk to public safety, I have concluded that this risk can be managed by the
    applicants determination to maintain his sobriety, if appropriately supported by
    ongoing participation in addiction treatment programs and counselling and by his
    mothers supervision.

[24]

I also note that, at the time of the applicants
    pre-sentence report, his mother was unwilling to have him live with her upon
    his release. But she now is, because he is sober. In her affidavit filed on
    this application, Mrs. Sangster states:

I have seen a major change in him as a result
    of overcoming his addictions  I used to worry about him all the time when he
    was using drugs, but I feel like I have my son back now. He has hope. He is
    himself again. And he understands that he cannot start using again.

She adds: should I have any concerns
    with his behaviour, I will not hesitate to call the police. She also assures
    the court that her son will obey each and every condition imposed on him. I
    will ensure that he does so. I have been given no reason to doubt her.

[25]

I therefore conclude that the applicant should
    not be denied bail because of public safety considerations alone. Any residual
    public safety concerns, which I consider below under the public confidence
    component, can be managed by the applicants plan of release.

[26]

I turn now to the public confidence component.

Public confidence

[27]

The public confidence component involves a
    weighing of two competing interests: enforceability and reviewability.
    Enforceability concerns the need to respect the general rule of the immediate
    enforceability of all judgments. Reviewability concerns the need to provide for
    a meaningful review process, one that does not require persons convicted of
    offences to serve all or a significant part of their sentence only to have
    their conviction overturned on appeal:
Oland
, at paras. 24-26.

(i)

The enforceability interest

[28]

In assessing the enforceability interest, the
    seriousness of the crime has an important role. The more serious the crime, the
    greater the risk that public confidence in the administration of justice will be
    undermined if the person convicted is released on bail pending appeal:
Oland
,
    at para. 37. At the same time, the absence of flight or public safety risks
    will attenuate the enforceability interest. Other factors should also be
    considered where appropriate:
Oland
, at para. 39.

[29]

Here, as already noted, the parties agree that
    the applicants offences were very serious, violent, and involved a firearm. As
    the sentencing judge noted, these offences occurred when the applicant had
    long-standing substance abuse issues that have fundamentally shattered the
    accuseds life; losing his house, truck, girlfriend and business and his
    relationship with his family, including violence against his very supportive,
    indeed overly supportive mother.

[30]

At the same time, the applicant now has renewed
    connections to his family that appear to have motivated his rehabilitative
    progress and will continue to do so. While public safety risks are not
    completely absent, they are substantially reduced, provided the applicant
    maintains his sobriety and follows his addiction treatment plan under his
    mothers supervision.

[31]

I conclude that the absence of flight risks and the
    substantially reduced public safety risks both attenuate the enforceability
    interest.

(ii)

The reviewability interest

[32]

In assessing the reviewability interest, the
    strength of the appeal plays a central role:
Oland
, at para. 40. A
    preliminary assessment of the strength of the appeal is made by reviewing the
    grounds in the notice of appeal for their general legal plausibility and
    foundation in the record, to determine whether those grounds clearly surpass
    the not frivolous criterion:
Oland
, at para. 44. A broader public
    interest in reviewability transcends an individuals interest in any given
    case:
Oland
, at para. 45. The remedy sought on appeal may also inform
    the reviewability interest:
Oland
, at para. 46.

[33]

Here, the applicants appeal raises four main
    grounds, two from conviction and two from sentence.

[34]

First, the applicant asserts that the trial
    judge erred in dismissing his
Charter
application. He says that he had
    a reasonable expectation of privacy over his bedroom, however diminished, and
    that the trial judge erred in law by concluding that Ms. Stricklands consent
    could nullify that expectation. He relies on the Supreme Courts statement in
R.
    v. Reeves
, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 52, that [w]aiver
    by one rights holder does not constitute waiver for all rights holders, and the
    Courts recognition of the high bar for first-party consent because waiving
    s. 8 rights has significant consequences.

[35]

The Crown submits that the trial judge found that
    the applicant did not have a reasonable expectation of privacy having regard
    to the totality of the circumstances and that this finding is entitled to
    deference on appeal.

[36]

I agree with the Crown that the applicant will
    have an uphill challenge in overcoming appellate deference to the trial judges
    findings. Still, there is a general legal plausibility and a foundation in the
    record for his claim that he had a reasonable expectation of privacy in the
    bedroom he was staying in with his girlfriend. The same is true of his argument
    that his privacy expectation, however diminished, could not be waived by Ms.
    Strickland in the circumstances. Indeed, the applicant testified that Ms.
    Strickland and Mr. Davey would ask for permission by knocking on the bedroom door
    before entering and that the door had a lock on it.

[37]

The Crowns submission on this application also reveals
    a potential tension in the trial judges reasons. The Crown interprets the
    trial judge as finding that the applicant did not have a reasonable
    expectation of privacy. Yet the trial judge appeared to conclude that, as a
    guest of the tenant, the applicant did have some expectation of privacy in
    the bedroom, even if a diminished one.

[38]

Second, the applicant asserts that the trial
    judge misapprehended the evidence on core issues central to his reasoning
    process in determining guilt. In particular, he notes that aspects of Mr.
    Carpenters evidence were contradicted by Ms. Stricklands evidence. These
    contradictions are said to have been material because nobody saw the applicant
    stab Mr. Carpenter. At first, Mr. Carpenter himself told the police he did not
    remember being in an altercation with the applicant because both of them were intoxicated.

[39]

The Crown does not address this ground in any
    detail on this application, except to note that the trial judge could accept
    all, none, or some of the evidence and that his overall assessment of the
    evidence is entitled to deference.

[40]

I agree that this will be a challenging ground
    of appeal. It is at best weakly arguable.

[41]

Third, on the sentence appeal, the applicant
    asserts that the trial judge erred by relying on aggravating sentencing factors
    that were unsupported by the evidence. The applicant says that there was no
    evidence that the applicant used a kitchen knife or any other specific
    implement to stab Mr. Carpenter, nor any evidence of peril to Mr. Carpenters
    life. The Crown responds that all these evidentiary findings were open to the
    trial judge on the evidence.

[42]

Fourth, the applicant also asserts on the
    sentence appeal that the trial judge erred by failing to apply the totality
    principle, and thus the cumulative sentence exceeded the applicants overall
    culpability. Because this was the applicants first penitentiary sentence, he
    says the trial judge should have imposed the shortest possible sentence to
    achieve the relevant sentencing objectives, and that, in totality, a sentence
    of seven years and seven months was unduly long and harsh. He says the sentence
    should be reduced to 5 years and 1 month. In response, the Crown says that the
    sentences for each offence were on the low end and that the cumulative sentence
    respected the totality principle given the applicants very violent rampage.

[43]

These grounds again face an uphill battle, but they
    are arguable. In particular, the submission that the trial judge failed to
    advert to or apply the totality principle has a foundation in the reasons for
    sentence, because this principle is not mentioned.

[44]

In conclusion, my preliminary assessment is that
    while some grounds of appeal are stronger than others, cumulatively they clearly
    surpass the not frivolous threshold.

Balancing the public interest in
    enforceability and reviewability

[45]

In conducting a final balancing of the
    enforceability and reviewability interests, public confidence is measured through
    the eyes of a reasonable member of the public, someone who is thoughtful,
    dispassionate, informed of the circumstances of the case and respectful of
    societys fundamental values:
Oland
, at para. 47. Anticipated delay
    in deciding an appeal, relative to the length of the sentence, is also a
    consideration, so as to ensure that the reviewability interest remains
    meaningful:
Oland
, at para. 48.

[46]

The applicant highlighted the COVID-19 pandemic
    and the lack of addiction counselling services currently available at his
    institution. This court has accepted that the COVID-19 pandemic is a factor
    that may be considered as part of the public interest criterion: see e.g.
R.
    v. Kazman
, 2020 ONCA 251, at paras. 17-21;
R. v. Omitiran
, 2020
    ONCA 261, at para. 26; and
R. v. Jesso
, 2020 ONCA 280, at para. 36.
    The weight to be given to this factor depends on the circumstances of each
    case. Unlike in
Kazman
, this applicant is 38 years old and there is no
    evidence he has underlying health conditions that would place him in a group
    particularly vulnerable to COVID-19: see
Kazman
, at para. 17.

[47]

Here, the Crown accepts that, because of the
    pandemic, addiction counselling is currently restricted in detention centres, but
    adds that this is also so in the community. There is, however, evidence before
    me that the Addiction Treatment Centre in Huntsville remains open, with
    modifications to its services. The applicant may therefore have greater access
    to addiction support in the community. Although I have considered this as a
    relevant factor under the public confidence criterion, it is by no means
    decisive. Its absence would not alter my conclusion that the public interest in
    reviewability outweighs the interest in enforceability, nor would its presence have
    been sufficient to outweigh more serious residual public safety concerns than
    those I have found here.

[48]

As to the balancing of the enforceability and
    reviewability interests, the Crown submits that in this case the need for
    enforceability is paramount for maintenance of the publics confidence in the
    administration of justice.

[49]

I respectfully disagree. The enforceability
    interest is somewhat weaker than urged by the Crown, given the lack of flight
    risk and the substantially reduced public safety risks, as highlighted by the
    correctional authorities themselves. The reviewability interest is also somewhat
    stronger than urged by the Crown.

[50]

I am also mindful of the anticipated delay in
    deciding the appeal relative to what remains to be served of the sentence. The applicant
    has already served three years and five months of his sentence  the entire
    sentence for the firearms conviction or the aggravated assault. He was eligible
    for parole on May 1, 2020 and expects to have a parole hearing in August 2020. The
    applicant only recently perfected his appeal and I understand the parties will
    be contacting the court soon to seek a hearing date. This is not a case where bail
    pending appeal is sought at the beginning of a long sentence, which may engage
    a different balance between reviewability and enforceability.

[51]

In the circumstances, I conclude that the public
    interest in reviewability outweighs the enforceability interest. The applicant
    has established that his detention is not necessary in the public interest,
    measured through the eyes of a reasonable member of the public who is
    thoughtful, dispassionate, informed of the circumstances of the case, and
    respectful of societys fundamental values.

D.

Disposition

[52]

For these reasons, I grant the application for
    bail pending appeal.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Soriano, 2020 ONCA 276

DATE: 20200501

DOCKET: C67910

Doherty, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alann Soriano

Appellant

Jeffrey Fisher
, for the appellant

Michael Fawcett, for the respondent

Heard: in writing

On appeal from the sentence imposed on September
    19, 2019 by Justice Richard H. K. Schwarzl of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant seeks leave to appeal from a sentence
    imposed for four counts of breach of probation. The Crown proceeded by
    indictment so that the maximum sentence available was four years for that
    offence. The sentencing judge imposed a global sentence of 23.5 months
    incarceration followed by probation for three years, after taking into account
    170 days of actual pretrial custody.

[2]

The appellant submits that the sentence was
    demonstrably unfit having regard to the nature of the offence and further that
    the sentencing judge violated the jump principle by imposing a sentence so
    substantially longer than previous sentences imposed on the appellant for
    similar offences.

Nature of the Offence

[3]

The appellant was bound by two probation orders
    prohibiting him from contacting or physically approaching his former spouse, the
    son he had with her, or her current partner. On March 10, 2019, the appellant
    called his former spouses phone approximately a dozen times over several
    minutes. He insisted he wanted to see his son. When the appellant was told he
    was not allowed to come over, he cursed and said that he did not care about the
    order and that he was coming to their home.

Criminal Record of the Appellant

[4]

The appellant was convicted of assault, assault
    with a weapon, and uttering a threat some 12 years before the present sentence
    was imposed. Most significantly, since 2015 he had been convicted 12 times for
    breach of probation for violating no-contact or physical distance orders in
    relation to these same persons.

Reasons of the Sentencing Judge

[5]

The defence position was that time served of 170
    days actual pretrial custody would be an appropriate sentence. The Crown sought
    a sentence of 18-24 months in addition to pretrial custody.

[6]

The sentencing judge noted that the appellant
    acknowledged that he had an alcohol problem but denied drug addiction or mental
    health difficulties, referred to in a psychiatric report. Because the report
    was contested, the sentencing judge indicated that he would not place much
    weight on it. He noted further that the offence itself was not particularly
    egregious in isolation, amounting to a series of phone calls made to his former
    spouses home. Most significant for the purposes of sentencing was his
    conclusion that the appellant was incorrigible, and that there was nothing that
    any court could do or say to stop him from violating the orders. He noted that
    the victims were living in a state of perpetual fear and terror, not knowing
    when and where Alann Soriano is going to show up and, if he does, what is he
    going to say and what is he going to do. He found that the appellant had no
    insight into his behaviour or the reasons for it, and that the risk of
    re-offence was extremely high. He concluded that the sentence had to focus on
    specific deterrence of the appellant, and denunciation of this effective
    terrorizing of your ex-wife and your son. He indicated that he was obligated
    to try and protect the people who have been subject to your non-stop harassment
    for the last four years and that all he could do was separate you from
    society as long as possible in an effort to try to give these people some
    relief for that period of time.

Analysis

[7]

This court will not vary a sentence unless it is
    demonstrably unfit or the sentencing judge made an error that affected the
    sentence imposed: see
R. v. Friesen
, 2020 SCC 9, at paras. 25-29.

[8]

A sentence that is demonstrably unfit is
    clearly excessive or clearly unreasonable. Given the appellants
    incorrigible behaviour, we cannot say that the sentence was clearly excessive.
    The psychiatric report says nothing to attenuate the trial judges conclusion
    that the risk of re-offence was extremely high. The longest previous
    sentence imposed on the appellant amounted to 312 days, including pretrial
    custody. That was not sufficient to deter the appellant. It was reasonable for
    the sentencing judge to conclude that the time had come for a significantly
    longer sentence to protect the victims and attempt to deter the appellant from
    reoffending: see
R. v. Blake
, 2016 ONCA 508;
R. v. Simeunovich
,
    2019 ONCA 856.

[9]

We see no basis to intervene. Leave to appeal
    sentence is granted but the appeal is dismissed.

Doherty
    J.A.

Janet
    Simmons J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Rabi v.
    University of Toronto, 2020 ONCA 305

DATE: 20200521

DOCKET: C67362

Doherty, Juriansz and Paciocco
    JJ.A.

BETWEEN

Lakshmikanth Kishor Rabi

Applicant (Appellant)

and

The University of Toronto

Respondent (Respondent)

M. Olanyi Parsons and Christopher
    Breton, for the appellant

Robert A. Centa and Emily Home, for the
    respondent

Heard: In writing

On appeal from the order of Justice Shaun
    OBrien of the Superior Court of Justice, dated July 17, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant,
    Lakshmikanth Kishor Rabi, seeks to set aside the decision to deny his
    application for an interlocutory injunction to prevent enforcement by the
    respondent, The University of Toronto (the University), of a Trespass Notice
    that is impeding the completion of Mr. Rabis studies and putting his student
    visa status at risk. He sought the interlocutory injunction pending a
    proceeding before the Human Rights Tribunal of Ontario (the Tribunal). The
    appellant contends that the application judge committed palpable and overriding
    errors in her assessment of the evidence, misapplied the test for interlocutory
    injunctions, and arrived at an unreasonable decision in finding that the balance
    of convenience favoured the respondent. For reasons that follow, we would
    dismiss Mr. Rabis appeal.

BACKGROUND FACTS

[2]

On May 5, 2017, Mr.
    Rabi, a student enrolled at the University, attended at the university Health
    and Wellness Centre. As the result of events that transpired during his visit,
    the on-call psychiatrist, Dr. Soraya Mumtaz, formed the opinion that Mr. Rabi
    posed a threat to himself and others. As a result, Mr. Rabi was immediately
    involuntary committed for psychiatric review in the Centre for Addiction and
    Mental Health (CAMH). Four days later, on May 9, 2017, the respondent issued
    a Trespass Notice to Mr. Rabi, which is the subject of this appeal.

[3]

Mr. Rabi, who was
    released from CAMH 18 days later after voluntarily extending his stay, denies
    that he posed a danger to anyone, then or now. He contends that confusion over
    the contents of a note he wrote as well as cultural misunderstanding led to his
    benign expressions of frustration being interpreted as threats, and that
    comments he made about past ruminations of suicide and the suicide of another
    were misconstrued and mistakenly treated as current suicidal ideation. He also
    claims that the accounts of events offered by the attending registered nurse,
    Dr. Mumtaz, and campus police who attended on May 5, 2017, are inaccurate and
    exaggerated. He notes, as well, that the comments he did make to Dr. Mumtaz
    were made while he was emotional, exhausted, and being pressingly
    interrogated.

[4]

The letter containing
    the Trespass Notice invited Mr. Rabi to furnish, for consideration, any
    information that he wished to have considered. It affirmed that the Trespass Notice
    would not be rescinded until the University is satisfied that he do[es] not
    pose a threat to the health and safety of others and sought Mr. Rabis
    consent to undergo a psychiatric risk assessment by a qualified expert who
    will report to the University.

[5]

Mr. Rabi furnished the
    university with a letter from his treating physician at CAMH, Dr. Ofer Agid,
    dated June 13, 2017, which said in relevant part:

During the state in the in-patient unit (May 5
th
to May 23
rd
) the patient was not offered any type of medical
    treatment and was fully cooperative with the psychiatric observation.

At this point he does not require psychopharmacological
    treatment. The assessment conducted today, reveals that he is not at any risk
    to self or others.

[6]

The University did not
    find Dr. Agids letter to be adequate to allay its concerns. Mr. Rabi contends
    that this position is unreasonable and insists that the Trespass Notice should
    be rescinded on the strength of the letter. Accordingly, he has not consented
    to a psychiatric risk assessment. Extensive correspondence between the parties
    did not resolve the impasse.

[7]

On February 28, 2018,
    Mr. Rabi initiated a court application alleging that the University breached
    its contractual and fiduciary duties in its dealings with him. On May 4, 2018,
    he filed a complaint with the Tribunal. On May 23, 2019, he amended his
    application, adding a request for an interlocutory injunction restraining the
    University from enforcing the Trespass Notice.

[8]

On July 17, 2019, the
    application judge dismissed the application in its entirety.

ISSUES

[9]

Mr. Rabi appeals only
    the denial of the interlocutory injunction. No issue was taken with the decision
    of the application judge to exercise her jurisdiction and hear an application
    for an interlocutory injunction relating to a complaint before the Tribunal,
    notwithstanding that the Tribunal also has jurisdiction to order the interim
    relief requested and would arguably have been in a better position to determine
    its suitability: see e.g.,
Nelson et al. v. Her
    Majesty the Queen in Right of Ontario et al
.
,
    2019 ONSC 5415, at para. 21; Robert J. Sharpe,
Injunctions
    and Specific Performance
,
    loose-leaf (2019-Rel. 28), (Toronto: Thomson-Reuters, 2019) at para. 3.990. The
    issues he raises can be organized as follows:

A.

Did the application judge commit palpable and overriding errors?

B.

Did the application judge err in the application of the legal test
    for an interlocutory injunction?

C.

Did the application judge unreasonably conclude that the balance of
    convenience favoured denying the interlocutory injunction?

ANALYSIS

A.

DID THE APPLICATION JUDGE COMMIT PALPABLE AND OVERRIDING ERRORS?

[10]

Mr. Rabi argues that
    the application judge made unreasonable factual determinations relating to the
    cogency of the medical notes relied upon by the University, and that she
    unreasonably relied upon her finding that the threats implicated University
    staff, when this was not a basis for issuing the Trespass Notice. Mr. Rabi also
    argues that she committed a palpable and overriding error by misapprehending
    evidence relating to the finding of compromise by the University, and in
    identifying the basis for the opinion expressed in the letter from Dr. Agid.
    Mr. Rabi argues, as well, that the application judge ignored his medical
    evidence.

[11]

None of these alleged
    errors occurred, nor have any other errors of fact or errors of mixed fact and
    law been successfully identified.

[12]

Mr. Rabis argument
    that it was unreasonable for the application judge to rely on the medical notes
    as an accurate account of the events of May 5, 2017 rests in his claim that she
    failed to appreciate the discrepancies in the medical notes. Most
    significantly, the medical notes of the registered nurse record that Mr. Rabi
    wrote on a notepad that if he had a rifle, he would shoot something. In his
    medical notes, Dr. Mumtaz recorded that the note Mr. Rabi wrote stated, that
    he wanted to kill someone (no name) and that he was good with a rifle. Mr.
    Rabi argues that this error made its way into the Form 1 application.

[13]

The application judge
    committed no palpable and overriding error in her treatment of these medical
    notes. She explained why she found them reliable. Specifically, they were
    taken contemporaneously and were taken by health care practitioners. This
    determination was for her to make.

[14]

It is also clear that
    she was not misled by any imprecision there may have been in Dr. Mumtazs
    medical note about what Mr. Rabi had written. She accepted Mr. Rabis position
    that the note he wrote said that he wanted to shoot something. Her conclusion
    that there was evidence that Mr. Rabi wished to shoot someone was not based
    on evidence about the note, but on things Mr. Rabi is recorded as having said
    to the registered nurse and Dr. Mumtaz. This includes comments attributed to
    Mr. Rabi that he wanted to shoot someone at random, as a sniper shooting at people
    who happened to be around, and that either [he] dies or someone else will.
    The registered nurses medical notes also record Mr. Rabi explaining that in
    his note he wrote something instead of somebody because writing somebody
    would have been incriminating.  Mr. Rabi has demonstrated no errors by the
    application judge relating to the medical notes.

[15]

Nor did the application
    judge commit a palpable and overriding error by relying on what Mr. Rabi claims
    is an irrelevant finding that his threats were linked to animosity against University
    staff. We do not accept Mr. Rabis contention that the University did not rely
    on this consideration when issuing the Trespass Notice. The letter containing
    the Trespass Notice in fact describes the risk the University perceived Mr.
    Rabi to pose in the University community, a community that obviously includes
    University staff. Moreover, University records put before the application judge
    bore out Mr. Rabis animosity to staff members. It is an entirely reasonable
    inference that the University was mindful of this when issuing the Trespass
    Notice. No palpable error occurred.

[16]

In any event, even if
    mistaken, the application judges findings relating to animosity against University
    staff would not amount to an overriding error. Given the evidence before the
    application judge that Mr. Rabi threatened to shoot people randomly as a sniper
    would, the seriousness of the threats made would not be materially diminished
    if not directed at University staff, or if not fueled by animosity against University
    staff.

[17]

We also reject the
    submission that the application judge misapprehended the evidence by noting an
    offer of compromise by the University, when the University was, in fact,
    insisting on a psychiatric risk assessment. The Trespass Notice itself invited
    Mr. Rabi to provide other information, distinct from the request that Mr. Rabi
    consent to a psychiatric risk assessment. In its letter of September 14, 2017,
    while re-asserting its belief that a psychiatric risk assessment remains
    necessary and appropriate, the University said that it undertakes to consider
    any medical reports touching on the subject of risk to its community, that
    refers to the position taken by Dr. Agid and supplements or updates it with
    cogent and comprehensive medical evidence.  There was therefore clear evidence
    of an offer to compromise on the record. The fact that the Universitys
    repeatedly called for a psychiatric risk assessment does not alter this fact.

[18]

Nor did the application
    judge misapprehend the evidence by describing the June 13, 2017 letter of Dr.
    Agid as being based on an assessment that day. The letter says this
    expressly. There is simply no basis for inferring that the application judge
    failed to appreciate that Mr. Rabi had been at CAMH for 18 days.

[19]

In any event, even if
    it had been wrong to note that the letter was based on an assessment that
    day, such an error would not be overriding. What mattered was the application
    judges conclusion that Dr. Agids extremely brief letter of opinion did not
    provide sufficient assurance of Mr. Rabis health and safety, a decision
    supported by Universitys evidence from Dr. Lisa Ramshaw that Dr. Agids letter
    of June 13, 3017, was inadequate, and not a violence risk assessment. The
    application judge noted that Dr. Agids letter gave no indication of the
    information he had been provided, said nothing about the nature of tests or
    assessments undertaken, and did not offer an assessment of future risk. Whether
    Dr. Agids conclusion was an assessment of Mr. Rabis risk that day or a more
    general assessment based on a larger body of information would not have altered
    the shortcomings identified by the application judge.

[20]

Mr. Rabis submission
    that the application judge disregarded the medical evidence he provided fares
    no better. As the prior paragraph makes plain, the application judge considered
    this evidence but found it to be wanting. Mr. Rabis arguments that it was
    unreasonable for the application judge not to assign weight to Dr. Agids
    letter amounts to no more than an effort to reargue the case before us and must
    be rejected.

B.

DID THE APPLICATION JUDGE ERR IN THE APPLICATION OF THE LEGAL TEST
    FOR AN INTERLOCUTORY INJUNCTION?

[21]

The application judge
    correctly set out the legal test for an interlocutory injunction from
RJR-MacDonald v. Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334. This test
    requires the applicant to demonstrate that the interests of justice call for a
    stay by showing: (1) that there is a serious issue to be tried; (2) that he
    will suffer irreparable harm if the injunction is refused, and (3) the balance
    of convenience favours the injunction.

[22]

Mr. Rabi does not take
    issue with the articulation of the test, nor with the application judges
    findings that there was a serious issue to be tried, and that he will suffer
    irreparable harm if the injunction is denied. He argues that the application
    judge erred in law in applying the test by not conducting a fluid, not rigid,
    analysis of the elements and by giving disproportionate emphasis to her
    finding that the balance of convenience favoured the University. On this latter
    point, he argues that the strength of the first two components of the test
    should have overcome any deficiency in the last.

[23]

The University does not
    contest that in determining whether a stay is in the interests of justice, an
    application judge is entitled to consider the relative weight of the three
    components of the test, or that a strength in one area may offset the weakness
    in another. However, the University argues that Brown J. made clear in
R. v. Canadian Broadcasting Corporation
, 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12, that
    an interlocutory injunction must satisfy each of the three elements of [the]
    test. Since the application judge found that the third component was not met
    that the balance of convenience instead favoured the University  this was not
    a case for the kind of fluid assessment that Mr. Rabi calls for.

[24]

We need not determine
    whether the
dictum
in
R. v. Canadian
    Broadcast Corporation
has
    the significance the University ascribes to it, such that no matter how strong
    the applicants case is, or how serious the irreparable harm may be, an
    interlocutory injunction may not issue if the balance of convenience favours
    the respondent. (See e.g., Robert J. Sharpe,
Injunctions
    and Specific Performance
,
    at para 2.540). We need not explore this question because we are satisfied that
    the application judge considered the weight of each component of the test and
    was satisfied that this was not a case where, in all the circumstances, the
    strength of the factors that favoured Mr. Rabi could sustain Mr. Rabis
    application.

[25]

In particular, she
    found the serious issue to be tried arose from Dr. Agids opinion, an opinion
    whose deficiencies she described. And she clearly tempered her finding that Mr.
    Rabi had demonstrated irreparable harm by noting that he took two years to seek
    the injunction. It would not be accurate to suggest that she found the first
    two factors favouring Mr. Rabi to be strong.

[26]

Then, when describing
    the balance of convenience, the application judge said that the impact of providing
    updated medical information to the University on Mr. Rabi was less significant
    than the impact of the injunction on the University and gave an explanation that
    we are about to describe that made that determination decisive.

[27]

Put simply, the
    application judges evaluation of the relative strength of each component of
    the test leaves no room for a finding that she failed to conduct a fluid
    assessment or gave undue weight to the balance of convenience. Even if Mr.
    Rabis claimed errors amount to errors of law, the application judge committed
    neither of them.

C.

DID THE APPLICATION JUDGE UNREASONABLY CONCLUDE THAT THE BALANCE OF
    CONVENIENCE FAVOURED DENYING THE INTERLOCUTORY INJUNCTION?

[28]

There is no basis for
    impugning the reasonableness of the application judges finding that the
    balance of convenience favoured the University. Her reasons were clear,
    grounded in the evidence, and compelling. In particular, she noted the very
    serious threats that had been demonstrated to the university community, the
    concerning context in which Mr. Rabis threats were made, and the absence of
    sufficient assurances of Mr. Rabis mental health. On the other side, she
    reasoned that, if he did not pose the threat apprehended, the harm to Mr. Rabi
    could be overcome by the inconvenience and loss of privacy that securing
    adequate medical information would entail. The application judges conclusion
    that, on balance, the balance of convenience favoured the university was
    entirely reasonable.

CONCLUSION

[29]

The appeal is
    dismissed. If either party is seeking costs, the Universitys bill of costs,
    supported by written submission of no more than three pages, shall be submitted
    by May 28, 2020. Mr. Rabis costs submissions shall be submitted by June 2,
    2020 and shall also consist of a bill of costs and no more than three pages of
    written submissions. If Mr. Rabi seeks costs, the University will be entitled
    to provide two further pages, in response, by June 5, 2020.

Doherty
    J.A.

R.G.
    Juriansz J.A.

David
    M. Paciocco J.A.