COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jones, 2016 ONCA 543

DATE: 20160708

DOCKET: C60011

MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tristan Jones

Appellant

Patrick McCann, for the appellant

Randy Schwartz, for the respondent Her Majesty the Queen
    in Right of Ontario

Nick Devlin, for the respondent Her Majesty the Queen in
    Right of Canada

Susan Chapman and Naomi Greckol-Herlich, for the
    intervener Criminal Lawyers Association

Heard: April 4 and 5, 2016

On appeal from the pre-trial ruling, dated September
    27, 2012, and the convictions entered on September 25, 2013, by Justice Jacqueline
    V. Loignon of the Ontario Court of Justice.

MacPherson J.A.:

A.

Introduction

[1]

The appellant, Tristan Jones, and his co-accused, Jermaine Smith and
    Jafari Waldron, were convicted of several firearms trafficking and drug
    trafficking offences. The appellant was sentenced to five years imprisonment
    on the gun charges and seven months consecutive on the drug charges, less
    credit for 4.7 years of pre-sentence custody.

[2]

The convictions arose from a police investigation in Ottawa into the
    possession and trafficking of firearms. In the course of its investigation, the
    police obtained a production order pursuant to s. 487.012 of Part XV of the
Criminal
    Code
, R.S.C. 1985, c. C-46,
for records and text messages from a cell phone number associated with Waldron.

[3]

The two principal issues on this appeal relate to the production order: (1)
    did the appellant have standing to challenge the production order; and (2) was
    a production order the proper mechanism for obtaining access to the cell phone
    records and text messages? The application judges answers to these two
    questions were No and Yes. On this appeal, the appellant challenges those
    answers.

[4]

This appeal was heard together with
R. v. Marakah
,
    2016 ONCA
542
and
R. v. Smith
, 2016 ONCA 544.
    The court has released three separate sets of reasons in these appeals.

B.

Facts

(1)

The
    parties and events

[5]

In 2009, the Ottawa Police Service initiated Project Lancaster, an
    investigation into the possession and trafficking of firearms in the Ottawa
    area. As part of the investigation, the police obtained a production order
    directed at Bell, Rogers and Telus (the Production Order). The Production
    Order sought, among other things, any incoming or outgoing text messages on a particular
    account associated with Waldron.

[6]

Telus was the only provider to retain historical text messaging
    information, which it provided to the police. Of particular interest was an
    exchange about the potential sale of a handgun between two phones  one associated
    with Waldron and one allegedly used by Jones. Both phones were listed under
    other names.

[7]

Relying in part on this text message exchange, the investigators
    obtained a
Criminal Code
Part VI wiretap authorization (the First
    Authorization) for a number of phones associated with the suspects. Communications
    intercepted under the First Authorization were used to support an additional
    Part VI wiretap authorization (the Second Authorization). Following this,
    search warrants were granted and executed. The searches resulted in Jones
    marijuana trafficking and proceeds of crime charges. The firearm charges were
    brought largely on the basis of the text messages obtained under the Production
    Order.

[8]

The appellant and Waldron challenged the Production Order. They
    contended that if the police wanted to obtain information about their text
    messages from service providers, the proper route was a Part VI authorization,
    not a production order.

[9]

The Crown raised the preliminary issue of standing, arguing that Jones
    had not adduced any evidence of his privacy interest in the records seized.
    Jones argued his privacy interest in the text messages seized was self-evident
    and his standing to challenge the seizure of the messages was virtually
    automatic.

(2)

The
    application judges ruling

[10]

On the s. 8
Charter
application, the Crown challenged the
    appellants standing. The application judge applied the analytic framework set
    out in
R. v. Edwards
, [1996] 1 S.C.R. 128, and concluded that Jones
    and Waldron did not have standing to challenge the Production Order under s. 8
    of the
Charter
. She said:

[31]

vi. The existence of a subjective expectation of privacy

There is no evidence whatsoever of
    any subjective expectation of privacy on the part of either Applicant.

vii. The objective reasonableness of the expectation

There is nothing to suggest from an
    objective standpoint that the Applicants structured their affairs to maintain
    privacy over the cell phone records. If anything, the use of a third party
    demonstrates a willingness to distance and avoid detection or association with
    the records.

Conclusion

In my view, the totality of the
    circumstances do not support that the Applicants Waldron and Jones had a
    reasonable expectation of privacy in relation to the cell phone records
    produced by Telus. Accordingly, I do not find that Waldron and Jones have
    standing with respect to a Section 8 argument in relation to the Telus
    production Order.

[11]

Turning to the challenge of the Production Order, the application judge
    held that a Part VI authorization was not required for two reasons. First, she
    found that she was bound by the trial decision in
R. v. Telus
    Communications Co.
(2011), 105 O.R. (3d) 411 (Sup. Ct.). In that decision,
    the court held that the daily production of text messages to police did not
    constitute an interception of private communications. Second, the application judge
    said, at para. 18, that there is no adequate evidentiary foundation for me to
    rely upon and base any findings.

[12]

The appellant appeals from these components of the application judges
    ruling. He also appeals two of his convictions  count 9 (offer to transfer a firearm)
    and count 42 (possession of the proceeds of crime)  on the basis that they
    were unreasonable verdicts.

C.

Issues

[13]

The issues in this appeal are:

(1)

Did the application judge err by concluding that the appellant did not
    have standing to challenge the Production Order?

(2)

Did the application judge err by upholding the use of a production order
    to obtain phone records from Telus?

(3)

Was the trial judges conviction on count 9 unreasonable?

(4)

Was the trial judges conviction on count 42 unreasonable?

D.

Analysis

(1)

Standing

[14]

The application judge held that the appellant did not have standing to
    challenge the lawfulness of the Production Order.

[15]

Unlike in the companion case
Marakah
, the appellant did not
    testify or lead evidence at his
Charter
application hearing dealing
    with his subjective expectation of privacy. His position was, as described by
    the application judge, that his privacy interest in the text messages seized
    pursuant to the production order is self-evident.

[16]

I do not accept this submission. The Telus account and phone in question
    were in the name of Kurt Gellis, not the appellant. The appellant did not use
    this phone, nor was he alleged to have used it. There was also nothing to
    suggest that Telus was contractually bound to the appellant to keep any of the
    text messages confidential.

[17]

Whether the appellant subjectively had an expectation of privacy is a
    finding of fact, which is owed deference absent a palpable and overriding
    error. In these circumstances, a subjective expectation of privacy is far
    removed from being self-evident. It was open to the application judge on the
    record to find that the appellant had no subjective expectation of privacy. I
    see no palpable and overriding error in her analysis warranting appellate
    intervention.

[18]

Further, for the reasons in the companion case
Marakah
, the application
    judge did not err by finding that the appellant had no reasonable expectation
    of privacy in relation to the cell phone records produced by Telus.

(2)

Production
    order v. Part VI authorization

[19]

My conclusion on standing is dispositive of the grounds of appeal
    relating to the appellants s. 8
Charter
rights. That being said, I
    would also agree with the application judges findings that a Part VI
    authorization is not needed to obtain historical text messages.

(a)

Parties positions

[20]

The appellant contends that previously received text messages fit
    squarely within the definition of intercept and private communications under
    Part VI of the
Criminal Code
, thus requiring a wiretap authorization.
    Though the Supreme Court of Canadas decision in
R. v. TELUS Communications
    Co
., 2013 SCC 16, [2013] 2 S.C.R. 3, only explicitly dealt with the
    interception of prospective text messages, the appellant submits that Abella
    J.s plurality comments
[1]
on the definition of intercept are all encompassing and cannot be restricted
    to undelivered text messages.

[21]

The respondents position is that the appellants interpretation of
    intercept should be rejected as it contradicts the core principles of
    statutory interpretation. Intercept connotes an interference, such as that between
    the origin and destination of a communication. Further, an interception occurs
    while the communication is in progress  it is necessarily prospective. Accordingly,
TELUS
does not assist, as it did not address the seizure of historical
    text messages.

(b)

Part VI of the
Criminal Code

[22]

I begin by noting that the core subject matter of Part VI of the
Criminal
    Code
concerns the interception of private communications. It makes it an
    offence to intercept private communications without statutory or judicial
    authorization. The purpose of Part VI is to protect private communications from
    unauthorized interference by the state:
TELUS
, at para. 35. The
    protection is structured in two ways: protection against the interception of
    private communications (see ss. 184-192) and protection against the use or
    disclosure of intercepted private communications (see s. 193).

[23]

The purpose of limiting police surveillance powers under Part VI was
    explained by La Forest J. in
R. v. Duarte
, [1990] 1 S.C.R. 30, at 43-44:

The rationale for regulating the power of the
    state to record communications that their originator expects will not be
    intercepted by anyone other than the person intended by the originator to
    receive it  has nothing to do with protecting individuals from the threat that
    their interlocutors will divulge communications that are meant to be private.
    No set of laws could immunize us from that risk. Rather, the regulation of
    electronic surveillance protects us from a risk of a different order, i.e., not
    the risk that someone will repeat our words but the much more insidious danger
    inherent in allowing the state, in its unfettered discretion, to record and
    transmit our words.

[24]

In my view, the statutory language and Supreme Court of Canada jurisprudence
    support the conclusion that Part VI applies exclusively to police surveillance
    and not to police searches and seizures generally. To determine whether a
    particular investigative technique constitutes surveillance, thus falling under
    Part VI, it is important to consider the statutory definitions of intercept
    and private communications enumerated in s. 183:

intercept includes listen to, record or acquire a
    communication or acquire the substance, meaning or purport thereof.

private communication means any oral communication, or any
    telecommunication, that is made by an originator who is in Canada or is
    intended by the originator to be received by a person who is in Canada and that
    is made under circumstances in which it is reasonable for the originator to
    expect that it will not be intercepted by any person other than the person
    intended by the originator to receive it, and includes any radio-based
    telephone communication that is treated electronically or otherwise for the
    purpose of preventing intelligible reception by any person other than the
    person intended by the originator to receive it.

[25]

The Crown concedes that text messages constitute private communications.
    I agree. Text messages, whether historical or prospective, clearly meet the
    definition of private communications. They are a telecommunication and it is
    reasonable for the originator to expect that they will not be intercepted. In
    this case, those text messages were also sent and received in Canada.

[26]

Accordingly, this ground of appeal turns on the interpretation of the
    word intercept, and in particular, whether the acquisition of historical text
    messages constitutes an interception. On this point,
TELUS
is not
    helpful. As carefully noted by Justice Abella, the facts before her dealt with
    obtaining prospective rather than historical text messages. As a result, she specifically
    limited the application of her reasons to whether the seizure of prospective
    text messages constitutes an interception:

[15] We have not been asked to determine whether a general
    warrant is available to authorize the production of historical text messages,
    or to consider the operation and validity of the production order provision
    with respect to private communications. Rather, the focus of this appeal is on
    whether the general warrant power in s. 487.01 of the
Code
can
    authorize the
prospective
production of future

text messages
    from a service providers computer. That means that we need not address whether
    the seizure of the text messages would constitute an interception if it were
    authorized after the messages were stored. [Emphasis in original.]

[27]

The meaning of intercept in the context of a Part VI authorization has
    been considered by this court on multiple occasions. Each time, this court has
    explained that intercept applies to prospective communications. I cite two
    recent cases as illustrations.

[28]

In
R. v. Beauchamp
, 2015 ONCA 260, 326 C.C.C. (3d) 280, the
    Court said:

[93] The interception of private communications is an
    investigative technique or tool to record words spoken by various individuals
    The words sought for capture do not exist when the authorization is granted. They
    may never exist or disclose anything of relevance to any offence under
    investigation. By nature, the subject-matter sought  communications about an
    offence  is speculative.

[29]

In
R. v. Nero
, 2016 ONCA 160, [2016] O.J. No. 1027, Watt J.A.
    said:

[116]  [The nature of the subject matter of a wiretap
    authorization is] future communications, not yet in existence, perhaps not even
    in contemplation at the time the authorization is sought or granted. These communications
    may never take place.

[30]

In these decisions, this court placed great weight on the temporal
    aspect of private communications. To fall under Part VI, there needs to be a
    prospective component to the private communications, otherwise the
    communications are not being intercepted. This is because the word intercept suggests
    an interference between the place of origin and the destination of the private
    communication. There is no such interference when obtaining historical text
    messages stored on a phone or a service providers server.

[31]

In
TELUS
, Abella J. essentially found that acquiring
    prospective text messages constituted a surveillance of private communications
    and required a wiretap authorization under Part VI. The difference between the
    case at hand and
TELUS
mirrors the distinction between surveillance and
    searches. Surveillance necessarily deals with prospective communications. On
    the other hand, I would not describe the production of historical text messages
    as surveillance or an interception. It is, quite simply, a search and seizure
    of a historical record of text messages sent and received in the past.

[32]

Further, the determination of whether the text messages in this case
    fall under Part VI does not turn on the type of information seized. Rather, it
    comes down to the specific investigative technique used by the police, and
    whether that technique constitutes an interception of private communications.
    This point was well articulated by Boswell J. in
R. v. Carty
, 2014
    ONSC 212, [2014] O.J. No. 6081:

[62]  In my view, Part VI was intended to govern the use of
    the investigative technique of interception. It was not intended to create a
    special, enhanced privacy interest in personal communications, such that any
    time the police seek access to records in the nature of personal communications
    they require a Part VI authorization. There is nothing about personal
    communications that renders them inherently more intensely private than a great
    deal of other biographical or personal information that may be contained on
    computers or smartphones and which is readily available to the police through
    production orders or search warrants. Banking records, photographs and web
    browsing histories may all contain information of an intensely private nature,
    but there is no dispute that they may be validly obtained through the use of
    non-Part VI authorizations.

[33]

I note that there is jurisprudence from other Canadian courts that is
    similar to the Ontario case law (
Beauchamp
,
Nero
and
Carty
)
    on this point. The most important, in my view, is the recent decision of the
    British Columbia Court of Appeal in
R. v. Belcourt
, 2015 BCCA 126, 322
    C.C.C. (3d) 93. The issue in
Belcourt
was precisely the same as the
    issue in this appeal. For a unanimous court, Kirkpatrick J.A. said:

[45] I readily concede that the acquisition of a text message
    by the police in this interim transit period could constitute an interception
    within the plain meaning of the word. However, this is because the recipient
    has yet to receive the message, and may never receive the message. In stepping
    between a sender and recipient to acquire a message and its content before it
    is received, and when it may never be received, the police are intercepting
    the message in the most literal sense of the word.

[46] The distinctive feature of the police investigation
    discussed above is that they interject themselves in the communication process
    by using an investigative technique that comes between the sender and receiver
    of a message. As I discuss below, and as Moldaver J. observes in his reasons in
Telus
, this is exactly the type of technique that Part VI authorization
    was meant to encompass. This investigative technique, however, is different
    from the case where the police seek to obtain a stored electronic record of a
    text message after it has been sent and received.

[47] The detailed requirements found in Part VI exist to
    address the fact that the evidence sought to be acquired by the police has not
    yet come into existence at the time that the judicial authorization for its
    acquisition is being sought: see
R. v. Finlay
(1985), 23 C.C.C. (3d)
    48 (Ont. C.A.) at 63-64. Indeed, the constitutionality of Part VI derives from
    the safeguards that are imposed by the role of the judge granting the
    authorization, which exist because of the danger that the interception of
    private communications could easily transform into a fishing expedition:
Finlay
78: see also
R. v. Araujou
, [2000] 2 S.C.R. 992 at para. 29. Put
    simply, it is inherent in the nature of Part VI authorization that the
    investigative technique to be utilized by the police is prospective, which
    requires a distinct form of judicial authorization in comparison to other
    search warrant provisions. In my view, applying Part VI to evidence already in
    existence is a misapprehension of the form of authorization provided for in that
    section of the
Code
.

[48] It is a necessary consequence of the very nature of the
    scheme that is set out in Part VI that any retrospective investigation
    technique is outside its ambit. In contrast to the prospective operation of
    Part VI, search warrants, whether part of the
Code
or another Act of
    Parliament, may not be issued in anticipation of an event or situation in the
    future which (if it existed in the present) would justify issuing a search
    warrant: see e.g.,
R. v. Cameron
(1984), 16 C.C.C. (3d) 240 (B.C.C.A.)
    at 242. On this point, it is important to note that the law regarding search
    warrants applies to production orders: see e.g.,
Canadian Broadcasting
    Corp. v. Manitoba (Attorney General)
, (2009), 250 C.C.C. (3d) 61 (Man.
    C.A.).

[49] The requirement that the search warrant only pertain to
    the search and seizure of specified things already in existence is essential to
    the operation of the safeguards inherent in the authorization scheme common to
    s. 487, including s. 487.012 (i.e., that there are reasonable grounds to
    believe that the specified articles to be seized will afford evidence with
    respect to the commission of an offence): see e.g.,
CanadianOxy Chemicals
    Ltd. v. Canada (Attorney General)
, [1999] 1 S.C.R. 743.

[50] As I have said, the acquisition of stored, historical
    communications is not, and cannot be, prospective. As a result, it is outside
    the ambit of Part VI of the
Code
to require that existing
    communications stored in electronic form be authorized under that section. In
    my view, requiring Part VI authorization for acquisitions of evidence already
    in existence is inconsistent with the law of search and seizure in Canada.

[51] A.J.B.s submission, taken to its logical extension, would
    require the police to obtain Part VI authorization for any acquisition of
    private communication in any circumstance, regardless of how far in the past it
    had been made. In my opinion, a fair reading of Justice Abellas reasons [in
Telus
]

does not support such an expansive proposition. As I indicated above, her
    analysis was carefully circumscribed to the question of the prospective
    acquisition of messages, which was, moreover, the principal issue before the
    Court.

[34]

I entirely agree with this analysis and conclusion.

[35]

I make one final comment on this issue. A requirement that the police
    must obtain a Part Vl wiretap authorization in order to acquire historical
    private communications from computers, cell phones and other electronic devices
    would be inconsistent with several leading decisions of the Supreme Court of
    Canada. It would also be a seriously retrogressive step in the administration
    of Canadian criminal justice. On these points, I agree with what the provincial
    Crown says in its factum:

65.     It would be difficult to overstate the profound
    negative consequences for criminal investigations if the appellants position
    were followed and a wiretap authorization came to be required for the
    acquisition of historical private communications from any computer or device. Much
    has been said about the proliferation of computers in modern society and the
    delicate balance the courts must strike between the digital privacy interests
    of the individual and the public interest in allowing police access to relevant
    computer data so they can properly conduct investigations. A rule that requires
    a wiretap authorization whenever the police access historical private
    communications would upset this balance by transforming virtually all searches
    of computers, smartphones and tablets into Part VI authorizations. It would
    also call into doubt the correctness of recent decisions of the Supreme Court
    of Canada in
R. v. Morelli
,
R. v. Vu
, and
R. v. Fearon
,
    which recognize that historical private communications may be seized from
    devices not with a wiretap authorization but with ordinary search warrants or
    through recourse to the warrantless power to search incident to arrest. It is
    difficult to comprehend how these decisions could somehow have overlooked the
    potential application of Part VI. Yet this is the effect of the appellants
    position.

[36]

For these reasons, it is my view that the application judge was correct
    in upholding the use of a production order to enable the police to obtain phone
    records from Telus. A Part VI authorization is not required for the search and
    seizure of historical text messages.

(3)

Unreasonable
    verdicts

[37]

In
    his Notice of Appeal and factum, the appellant challenged his convictions on counts
    9, 18 and 42 as being unreasonable. In oral submissions, he abandoned his
    appeal with respect to count 18.

(a)

Count 9  Offer to Transfer a
    Firearm

[38]

The appellants conviction on count 9 (offer to transfer a firearm) was
    based on evidence that on November 25, 2009 the appellant and the co-accused
    Waldron worked together to transfer a firearm to Shridev Café. Waldron
    confirmed Cafés interest in purchasing a firearm, negotiated the purchase
    price, and arranged to meet Café. The appellant spoke to Waldron in coded
    language about the price they would pay and their profit margin. On February
    10, 2010, a revolver was seized from Cafés residence. The revolver was a
    prohibited weapon in firing condition.

[39]

The evidence supporting count 9 consisted mainly of text messages
    between the appellant and Waldron and between Waldron and Café. There were no
    text messages or other communication between the appellant and Café directly.

[40]

The trial judge supported her conviction of the appellant and the
    co-accused in this fashion:

[99] Based on the communications between Café and Waldron, it
    is clear that the offer made was meant to be genuine given the arrangements
    made to meet. I am satisfied that all the elements of the offence have been
    made out with respect to an offer to traffic in firearms by Jaffari Waldron. With
    respect to Mr. Jones, his actions while not directly with Mr. Café demonstrate
    direct participation in the offence. Indeed, irrespective of their respective
    roles, Waldron and Jones worked together in order to ensure that a product was
    available to be offered to Mr. Café.

[41]

When reviewing whether a conviction was unreasonable, an appellate court
    must consider whether the verdict is one that a properly instructed jury,
    acting judicially, could have rendered. As explained by Watt J.A. in
R. v.
    Smith
, 2016 ONCA 25, [2016] O.J. No. 144:

[75] In cases tried without a jury, the unreasonableness
    analysis required under
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R.
    190, involves scrutiny of the logic of the judges findings of fact or
    inferences drawn from the evidence admitted at trial:
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15, 44. Under this test, an appellate
    court can interfere where a trial judge draws an inference or makes a finding
    of fact that is:

i.

plainly contradicted by the evidence relied upon by the judge for that
    purpose; or

ii.

demonstrably incompatible with evidence that is not otherwise
    contradicted or rejected by the trial judge:
Sinclair
, at para. 16.

[42]

In my view, the high threshold for a finding of unreasonable verdict is
    not met with respect to count 9. The trial judge was entitled to accept the
    expert evidence relating to the meaning of the text messages and draw the
    conclusion that she did about the appellants role.

(b)

Count 42  Possession of the
    Proceeds of Crime

[43]

The appellants conviction on count 42 (possession of the proceeds of
    crime) was based on the evidence relating to the appellants involvement in
    drug trafficking. When the police executed a search warrant at the appellants
    residence, they located $2,595 CAD and $1,060 USD, $1,755 of which was on the
    appellants person.

[44]

The trial judges conclusion on this count was:

[223] Given the conclusion that Jones was trafficking in
    marihuana, given the drugs found in the residence along with the tools of the
    trade, and finally given the amount of cash seized from Mr. Jones specifically,
    it is a reasonable inference that the currency seized was the proceeds of his
    illegal activities.

[45]

I see nothing unreasonable about the inference drawn from this evidence
    by the trial judge.

E.

disposition

[46]

I would dismiss the appeal.

J.C.
    MacPherson J.A.

I
    agree.
J. MacFarland J.A.

H.S. LaForme J.A. (Concurring):

[47]

I agree with my colleague that the application judge did not err by
    upholding the use of a production order and that the convictions on counts 9
    and 42 were not unreasonable. Therefore, for the reasons given by my colleague
    in respect of those three issues, I agree that the appeal should be dismissed.

Released: July 8, 2016 (J.C.M.)

H.S. LaForme
    J.A.

[1]
Justice Abellas reasons were joined by LeBel and Fish JJ. Moldaver J. wrote
    concurring reasons that were joined by Karakatsanis J. Cromwell J. dissented,
    joined by McLachlin C.J.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lessard, 2016 ONCA 596

DATE: 20160727

DOCKET: C57196

Watt, Pepall and Tulloch
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Roy William Lessard

Appellant

Russell Silverstein, duty counsel

Lorna Bolton, for the respondent

Heard: July 13, 2016

On appeal from the conviction entered on May 15, 2013 and
    the sentence imposed on May 15, 2013 by Justice Brian W. Abrams of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

On June 22, 2016 the appellant died. With his death, his appeal from
    conviction abates. It is well-settled that despite this general rule of
    abatement of an appeal on the death of the appellant, an appellate court has a
    discretion to hear the appeal if it is in the interests of justice to do so:
R.
    v. Smith
, [2004] 1 SCR 385.

[2]

A review of the record in this case satisfies us that this appeal raises
    no issue of general importance and reveals no other special circumstances that
    would warrant a departure from the general rule.

[3]

In the result, the appeal abates with the death of the appellant and is
    dismissed.

David
    Watt J.A.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Li, 2016 ONCA 573

DATE: 20160718

DOCKET: C59326

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiaomin Li

Appellant

Timothy E. Breen, for the appellant

Carolyn Otter, for the respondent

Heard: June 1, 2016

On appeal from the convictions entered by Justice G.
    DiTomaso of the Superior Court of Justice, sitting with a jury, on February 14,
    2014.

By the Court:

Overview

[1]

The appellant was convicted of unlawfully producing marihuana and
    possession of marihuana for the purpose of trafficking. She received an 18
    month conditional sentence.

[2]

At trial, her defence was that her conduct was excused by duress, as she
    had participated in the crimes at the behest of Wing Kwan with whom she had
    been involved in a romantic relationship for more than a year. She testified
    that she had been physically, emotionally and sexually abused and that Kwan had
    threatened to kill her and her 18 year- old daughter.

[3]

The appellants ground of appeal is a narrow one: the trial judge erred
    in failing to relate the expert evidence regarding battered spouse syndrome to
    the objective elements of duress.

[4]

At the conclusion of the hearing, the court allowed the appeal, with
    reasons to follow. These are those reasons.

Facts

[5]

In July 2008, police began investigating an outdoor marihuana grow
    operation in Severn Township.  The police subsequently arrested the appellant,
    Wing Kwan, and two others.

[6]

The appellant and Kwan had been in a romantic relationship since the spring
    of 2008.  She said that when she learned that he was working to set up a
    marihuana grow operation, she tried to end her relationship with him. However,
    Kwan became physically abusive towards her and told her that if she left him,
    he would make sure that she never saw her daughter again.

[7]

The appellant then tried to end her relationship with Kwan by avoiding
    him and ignoring his telephone calls. However, Kwan would come to her apartment
    in the middle of the night, physically assault her, threaten her with a knife
    or gun and threaten to harm her daughter. The appellant testified that she was
    too scared to call the police.

[8]

The appellant testified that around 3:00 a.m. on June 23, 2009, Kwan
    woke her up and told her she had to come to the grow operation to act as an
    interpreter. She resisted, and Kwan grabbed her by the throat and started
    breaking things. The appellant then agreed to go. She later told Kwan that she
    wanted to go home, and he threatened to kill her. The appellant worked in the
    fields as directed by Kwan, and was arrested the following day.

[9]

In addition to the appellants testimony, her daughter, Sarah, also
    testified. Sarah testified that she frequently heard Kwan yelling at her
    mother, and that she once saw Kwan with his hands around her mothers neck.
    When she threatened to call the police on Kwan, he threatened to kill her and
    her mother.

[10]

The defence also called Deborah Sinclair, who was qualified to give
    opinion evidence on the dynamics of domestic violence in intimate
    relationships. Sinclairs evidence supported the appellants claim that she was
    a victim of abuse. Additionally, Sinclair addressed the behavioural
    characteristics of someone subject to such abuse, including a failure to seek
    assistance from police or third parties and inconsistent disclosure about the
    abuse.

Analysis

[11]

A trial judges charge is not to be measured against a standard of
    perfection:
R. v. Jacquard
, [1997] 1 S.C.R. 314, and a jury charge
    must be examined as a whole.

[12]

In
R. v. Malott
, [1998] 1 S.C.R. 123, a case dealing with
    self-defence, Major J. stated, at paras. 20 and 21, that the principles of
    battered woman syndrome must be communicated to the jury and the jury should be
    informed of how the expert evidence may be of use.

[13]

The Crown conceded that even though this case involved a claim of duress
    rather than self-defence, the principles had to be communicated to the jury so
    as to assess whether the defence of duress had been made out. That said, the
    Crown argues that the trial judge did so.

[14]

The trial judges jury charge consisted of lengthy summaries of the
    evidence of each witness. This included a summary of the evidence of Sinclair,
    the defence expert.

[15]

That said, while the elements of duress were described and Sinclairs
    testimony was summarized, no effort was made to relate her evidence to the
    legal issues and principles in a manner that would equip the jury to reach its
    verdict. Read as a whole, the charge did not provide the jury with the tools it
    needed to assess the appellants defence.  As a result, the convictions cannot
    stand.

Disposition

[16]

At the close of the Crowns submissions on appeal, the Crown agreed with
    the appellant that if the court allowed the appeal, an appropriate result would
    be an acquittal. The appellant had served her sentence, was facing imminent
    immigration issues, and the judge had accepted the appellants and Sinclairs
    evidence in his sentencing reasons.

[17]

In the circumstances, at the close of oral argument, we allowed the
    appeal, set aside the convictions and entered acquittals on both charges.

Released:

GS                                                    George
    R. Strathy C.J.O.

JUL 18 2016                                     S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Louangrath, 2016 ONCA 550

DATE: 20160708

DOCKET: C59488

Cronk, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khamea Louangrath

Appellant

Samuel Walker, for the appellant

Andreea Baiasu, for the respondent

Heard: January 6, 2016

On appeal from the convictions entered by Justice
    Catherine D. Aiken of the Superior Court of Justice, sitting with a jury, on
    March 4, 2014, and from the sentence imposed on September 23, 2014, with
    reasons reported at 2014 ONSC 2120.

Tulloch J.A.:

A.

introduction

[1]

The main issue in this appeal is whether hearsay evidence that satisfied
    the past recollection recorded traditional exception to the hearsay rule was
    nonetheless so unreliable that it should have been excluded at trial.

[2]

The appellant was involved in an alleyway beating and parking lot assault
    outside The Drink nightclub in Ottawas ByWard Market.

[3]

The head of security for the nightclub, Tim McCarthy, witnessed the
    alleyway beating. He testified about it at trial, but had no present
    recollection of whether the appellant participated in punching and stomping on
    the victims, Mike Morrice and Brad Fradette.

[4]

The trial judge admitted a portion of an incident report McCarthy prepared
    within a few days after the assault under the past recollection recorded
    exception to hearsay. The admitted portion of that report stated that [t]
he Asian guy from Group A also started punching the other guy from
    Group B
. Evidence of McCarthys basis for identifying the appellant as
    the Asian guy was otherwise provided at trial.

[5]

A jury found the appellant guilty of assault causing bodily harm, and
    two counts of forcible seizure for the alleyway beating. The appellant also
    pleaded guilty to one count of simple assault for his participation in the
    parking lot assault. He was acquitted of two counts of robbery. He received a
    global sentence of three-and-a-half years imprisonment, less credit for
    pre-sentence custody.

[6]

The appellant appeals his convictions and sentence. In addition to his
    challenge of the trial judges admission and use of McCarthys recorded
    recollection, he argues that evidence of a phone call from a person identifying
    himself as the appellant and reporting damage to a white pick-up truck the day
    after the beating was mishandled. Finally, he submits that the sentence imposed
    was manifestly unfit and the result of two errors in principle.

[7]

For the reasons that follow, I would dismiss the conviction appeal. I
    would grant leave to appeal sentence, but dismiss the sentence appeal.

B.

background

[8]

The parking lot assault and alleyway beating took place on April 23,
    2011.

[9]

About an hour before the alleyway beating, Morrice was assaulted in the
    parking lot outside The Drink nightclub. Morrice, Fradette, and another friend
    were standing in a parking spot when a white pick-up truck pulled up. The
    driver asked them to move. They refused. The driver got out of the truck,
    punched Morrice in the face, got back in the truck, and parked nearby. Morrice
    and Fradette could not tell how many people were in the white truck, although
    they saw at least one passenger. The appellant pleaded guilty to participating
    in this assault, although he did not specifically admit that he was the driver
    of the truck or the person that punched Morrice in the face.

[10]

The parking lot assault was reported to police, and an officer attended
    the scene. Morrice led him to the white pick-up, where the officer noted that
    it was a white Ford F-150 truck. A vehicle check showed that it was registered
    to Phouthone Louangrath, the appellants brother.

[11]

Sometime after the officer left, the white truck was vandalized.

[12]

Morrice and Fredette went into The Drink nightclub. A short while later,
    they saw a man they identified as the driver of the white pick-up truck enter
    the nightclub with a group of people, some of whom, like the appellant, were
    Asian males.

[13]

The driver pointed out Morrice and Fradette, and the group started
    moving towards them. Morrice and Fradette were then grabbed and pushed towards
    a side exit and out into an alleyway, with their hands pinned behind their
    backs.

[14]

McCarthy, head of security at The Drink, noticed the appellants group
    when they entered, which he referred to as Group A. He recognized two
    individuals from that group as customers who would regularly come to The Drink
    together. One was a white male, and the other an Asian male. McCarthy would go
    on to identify the appellant as this Asian male, whom he referred to as the
    Asian guy, a few months after the assault in a photo line-up.

[15]

Group A also included several bouncers from a nearby nightclub called
    Industry who were wearing their security shirts, and some other individuals
    that McCarthy did not know or recognize. McCarthy also did not know or
    recognize Morrice or Fradette, whom he referred to collectively as Group B.

[16]

Morrice testified that outside in the alleyway the driver of the truck
    started punching him in the face as two other people pinned him against a brick
    wall. Fradette testified that Morrices head was being driven into the brick wall
    as he was repeatedly punched. Fradette was also punched and pushed, ending up
    on the ground in a turtle position, trying to protect his head while being
    stomped on.

[17]

McCarthy followed the groups into the alleyway. He testified that he saw
    the white guy from Group A sucker-punch one of the individuals from Group B.
    Although he had no present recollection at trial, in the statement he prepared
    days after the assault he recorded that the Asian guy then started punching
    the other guy from Group B. He testified that both individuals from Group B
    were then stomped on by five or six members of Group A. According to McCarthy,
    the Industry bouncers were just watching the beating without helping the
    situation.

[18]

McCarthy intervened, the alleyway beating ceased, and the appellants
    group ran down the alleyway towards the Industry nightclub. As they were
    leaving, the appellant apologized to McCarthy, saying something along the lines
    of sorry, but those guys did $3,000 or $4,000 worth of damage to my truck.

[19]

The next day, an individual who identified himself as the appellant
    called police reporting damage to his white pick-up truck, the same truck
    police observed after the parking lot assault, although the caller specified
    that the truck was registered to his brother.

C.

conviction appeal

(1)

The past recollection recorded grounds  McCarthys statement

[20]

As an out-of-court statement that was tendered for the truth of its
    contents, McCarthys statement was hearsay evidence.

[21]

The admission of hearsay evidence is governed by the following framework
    set out by McLachlin C.J.C. in
R. v. Mapara
, 2005 SCC 23, [2005] 1
    S.C.R. 358, at para. 15, and reaffirmed in
R. v. Khelawon
, 2006 SCC 57,
    [2006] 2 S.C.R. 787, at para. 42, and
R. v. Baldree
, 2013 SCC 35, [2013]
    2 S.C.R. 520, at para. 34:

(a) Hearsay evidence is presumptively inadmissible unless it
    falls under an exception to the hearsay rule. The traditional exceptions to the
    hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether
    it is supported by indicia of necessity and reliability, required by the
    principled approach. The exception can be modified as necessary to bring it
    into compliance.

(c) In rare cases, evidence falling within an existing
    exception may be excluded because the indicia of necessity and reliability are
    lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay
    exception, it may still be admitted if indicia of reliability and necessity are
    established on a
voir dire
.

[22]

In this appeal, the appellant concedes that McCarthys statement
    properly fell within the past recollection recorded traditional exception to
    the hearsay rule. And he does not challenge that traditional exception.

[23]

Rather, he argues that this is one of those rare cases in which the
    evidence should have been excluded because threshold reliability was lacking in
    the circumstances of this case. He also argues that there was a risk that the
    jury misused the portion of the admitted statement that was adduced to provide
    narrative context.

[24]

I do not agree, and would dismiss this ground of appeal.

(a)

Facts

[25]

The significance of McCarthys statement is that it was the only
    evidence from McCarthy that the appellant engaged in any of the punching or
    kicking during the alleyway beating, and McCarthy was the only witness that identified
    the Asian male as being the appellant. Unlike McCarthy, neither Morrice nor
    Fradette were shown a photo line-up. They were only able to identify the
    assailant as the driver of the white pick-up truck.

[26]

At trial, the following portion of McCarthys statement was read into
    the record:

I remember seeing the white guy from Group A all
    of a sudden sucker punch one kid from Group B.
The Asian guy from Group A
    also started punching the other guy from Group B.
So the two kids started
    getting stomped by about 5 or 6 guys from Group A. I believe the Industry guys
    were just watching, I don't recollect them actually fighting anybody but they
    weren't helping the situation. [Emphasis added.]

[27]

The underlined sentence was the portion that was admitted as past
    recollection recorded, while the remaining sentences were read to provide
    context for it.

[28]

Although Crown counsel at trial alerted the appellant and the trial
    judge that he may bring an application to admit this hearsay statement, the
    necessity of doing so did not unfold until McCarthys cross-examination and
    re-examination.

[29]

Initially, in examination-in-chief, McCarthy had testified that the
    appellant was punching and stomping one or both of the two individuals and
    was participating in that. But he said he could not remember more specific
    details, such as the angles or who was doing what.

[30]

When cross-examined, however, McCarthy acknowledged that although he
    could visualize the white guy sucker punching one of the individuals, he
    could not picture exactly what the Asian guy was doing. He did recall that
    both men were there for the punching and stomping that occurred. But, at trial
    three years after the incident, he could not remember the appellants specific involvement
    in the beating.

[31]

On re-examination, McCarthy confirmed that he did not have a present
    recollection of the details of the appellants specific participation in the
    beating and was relying on what he had written in his statement. He clarified
    that he could recall the appellant hovering over one of the individuals at the
    end of the assault, and the appellants comment that the assault was in
    retaliation for the damage done to his truck.

[32]

On a
voir dire
to determine the admissibility of the statement as
    past recollection recorded, the following evidence was provided:

·

McCarthy wrote the statement himself within a few days of the
    incident, probably April 24, 2011, which was the next day, but possibly as late
    as April 28, 2011. He testified the events were fresh in his mind at the time.

·

McCarthy had not spoken with his employer about the incident
    before preparing his statement, other than speaking to his manager the night of
    the incident, when he advised that he would prepare a statement.

·

McCarthy was not under the influence of alcohol when he wrote the
    statement or on the night of the incident.

·

As part of his duty as head of security, McCarthy was obliged to prepare
    such statements for his employer on any incident that occurred under his watch.

·

It was company policy to keep such statements so that they would
    be available for the police. McCarthy realized the police might be interested
    in the incident that evening.

·

The original statement that was being tendered, was typed, clear,
    printed on his home computer, and signed.

·

McCarthy testified that when he prepared the statement he was
    being truthful and the details of the events that he included in the statement
    were clear in his mind. He did not include anything in his statement about
    which he was not clear.

[33]

The trial judge found that McCarthys statement satisfied all four
    conditions for admission of past recollection recorded: it was a reliable
    record, it was prepared in a timely manner, McCarthy provided a present voucher
    as to its accuracy, and it was necessary because McCarthy had a current absence
    of memory.

[34]

Defence counsel also challenged the statements admission on the basis
    that its prejudicial effect outweighed its probative value.

[35]

The trial judge disagreed. She found the evidence was highly probative
    as it was from an independent, uninvolved observer, who had a close vantage
    point, and had use of his full faculties at the time of the incident. She held
    that any prejudice that arose from the appellants inability to fully
    cross-examine McCarthy on his observations at the time of the attack could be
    reduced by instructing the jury that this was a lower form of evidence that
    should be given extra scrutiny, an instruction she would later provide.

[36]

The trial judge noted that defence counsel would still be able to
    cross-examine McCarthy on his vantage point and on the composition of the
    appellants group, including how many of the men were of Asian descent, since
    he had a current memory of those aspects of events. Defence counsel was granted
    the right to cross-examine McCarthy again to explore issues of credibility and
    reliability relating to the content of the statement.

(b)

Discussion

[37]

First, I will address the appellants argument that this is a rare case
    in which threshold reliability was not established even though a traditional
    hearsay exception was satisfied. Then, I will explain why I am not persuaded
    that there was any realistic risk of misuse by the jury of the narrative
    portions of the adduced statement.

(i)

Is this a rare case in which threshold reliability was not met by a
    hearsay exception?

[38]

Four particular reliability concerns arise from the unavailability of
    contemporaneous cross-examination in court, namely the inability to test the
    declarants (i) perception, (ii) memory, (iii) narration, and (iv) sincerity:
Khelawon
,
    at para. 2;
Baldree
, at para. 31.

[39]

In
Baldree
, at para. 32, Fish J. briefly elaborated on these
    concerns as follows:

First, the declarant may have
misperceived
the facts to which the hearsay statement relates; second, even
    if correctly perceived, the relevant facts may have been
wrongly
    remembered
; third, the declarant may have narrated the
    relevant facts in an
unintentionally misleading manner
; and finally, the declarant may have
knowingly made
    a false assertion
. [Emphasis in original.]

[40]

The traditional exceptions to hearsay often address these concerns in
    two ways. The first way is to show that there is no real concern about whether
    the statement is true or not because of the circumstances in which it came
    about:
Khelawon
, at para. 62. The second way is to show that no real
    concern arises from the fact that the statement is presented in hearsay form
    because, in the circumstances, its truth and accuracy can nonetheless be
    sufficiently tested:
Khelawon
, at para. 63.

[41]

These two methods for establishing threshold reliability are not
    mutually exclusive, although when the declarant is available for
    cross-examination, the focus is on the second method, which is demonstrating
    that the truth and accuracy of the statement can be sufficiently tested:
R.
    v. Devine
, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22.

[42]

Meeting the requirements of the well-established past recollection
    recorded hearsay exception will generally be conclusive on the admissibility of
    the tendered evidence, without any further consideration of threshold reliability.
    That is because its essential conditions and the declarants availability for
    cross-examination address the hearsay concerns on reliability.

[43]

The essential conditions for the past recollection recorded exception
    were set out in
R. v. Richardson
(2004), 174 O.A.C. 390 (C.A.), by
    OConnor A.C.J.O., at para. 24, as follows:

1. Reliable record: The past recollection must have been
    recorded in a reliable way. This requirement can be broken down into two
    separate considerations: First, it requires the witness to have prepared the
    record personally, or to have reviewed it for accuracy if someone else prepared
    it. Second, the original record must be used if it is available.

2. Timeliness: The record must have been made or reviewed
    within a reasonable time, while the event was sufficiently fresh in the
    witness's mind to be vivid and likely accurate.

3. Absence of memory: At the time the witness testifies, he or
    she must have no memory of the recorded events.

4. Present voucher as to accuracy: The witness, although having
    no memory of the recorded events, must vouch for the accuracy of the assertions
    in the record; in other words, the witness must be able to say that he or she
    was being truthful at the time the assertions were recorded.

[44]

Three of these conditions are grounded in establishing threshold
    reliability  namely, the reliable record, timeliness, and present voucher
    as to accuracy conditions  while the absence of memory condition addresses
    the necessity of using the hearsay evidence. Significantly, for the admission
    of this type of hearsay evidence, the declarant is able to be tested under oath
    through cross-examination about the circumstances under which the recorded statement
    was made, and on the basis upon which he or she vouches that the recording of
    events is accurate.

[45]

Though not equivalent to contemporaneous cross-examination of present
    recollections, meeting those conditions, together with the declarants ability
    to testify about them, assuage the hearsay reliability concerns such that, when
    necessary, this evidence should be admitted. The trial judge should then
    instruct the jury that this is a lower form of evidence that calls for extra
    scrutiny.

[46]

In this case, the past recollection recorded conditions were met, as
    found by the trial judge. The original record that was tendered, which McCarthy
    wrote himself and signed, was a reliable recording that was made while the
    events were fresh in his mind. And McCarthy vouched for its accuracy. He
    testified that he had no doubt that he recorded his statement accurately and
    that he did not include anything in it about which he was not clear at the
    time. The appellant was able to, and did, test McCarthy on these indicators of
    reliability and other aspects of his testimony.

[47]

A finding that the past recollection recorded conditions are met, as
    occurred here, should be determinative of admissibility in virtually all cases.
    As explained in
Mapara,
at para. 30, an approach that requires trial
    judges to scrutinize pieces of hearsay evidence falling under traditional
    exceptions for reliability concerns in every case would undermine the
    efficiency of those exceptions by allowing them to devolve into a case by case
    vetting more resembling the ultimate reliability inquiry that is for the jury,
    than the threshold reliability inquiry relevant to admissibility.

[48]

Here, the appellant argues that this is a rare case because of the
    following concerns that he says are extraneous to the
Richardson
formulation
    of past recollection recorded: (i) the statement was not made under oath; (ii) McCarthys
    statement may have been tainted by his discussions with other parties, since at
    trial McCarthy acknowledged that he spoke to his manager and possibly others
    before he prepared the statement; (iii) the contents of his statement were so
    vague on the identity of the assailant that it was possible he was filling in
    his memory by misidentifying the Asian guy who threw a punch among the other
    Asian males in the group; (iv) it was a chaotic scene in the alley and it was not
    certain McCarthy had a clear vantage point; and (v) the statement the Asian
    guy from Group A also started punching the other guy from Group B was vague in
    terms of who the other guy from Group B was and what started punching meant.

[49]

In my view, the trial judges finding that the evidence satisfied the
    traditional exception was determinative in this case. There were no special
    reliability concerns that called for a second analysis of the admissibility of
    this evidence under the principled approach.

[50]

The first two of the appellants concerns  no oath and possible
    tainting  are taken into consideration by the past recollection recorded
    exception. The reliability concerns emanating from the lack of an oath are
    mitigated by the declarants testimony under oath that he was being truthful
    and accurate at the time the statement was recorded, and by the trial judge
    instructing the jury that such evidence is a lower form of evidence because it
    was not given under oath. In this case, McCarthy did provide such testimony
    under oath and the trial judge did instruct the jury in that fashion. I note
    also that, in this case, the statement had an additional marker of reliability
    since it was prepared under a legal duty in the ordinary course of the
    declarant's employment.

[51]

Concerns about possible tainting are addressed under the timeliness
    condition. Although this condition was titled timeliness in
Richardson
,
    it is also described as the record made when declarants memory sufficiently
    fresh and vivid to be probably accurate:

see S. Casey Hill, David M.
    Tanovich, Louis P. Strezos,
McWilliams Canadian Criminal Evidence
, loose-leaf
    (2016-1), 5th ed. (Toronto: Canada Law Book, 2013) at para. 21:20.20.50.50.

[52]

Relevant factors for making this determination include whether the
    memory may have been tainted, the state of the declarants mental capacity,
    whether the event observed was routine or exceptional, and whether the
    declarant was under the influence of alcohol or drugs:
McWilliams Canadian
    Criminal Evidence
,
ibid
.

[53]

As OConnor A.C.J.O. emphasized in
Richardson
, at para. 27, The
    appropriate length of time will vary with the circumstances of the case. The
    key is whether the events were fresh in the declarants mind.

[54]

The trial judge acknowledged McCarthys evidence about speaking to
    others before preparing his statement, but did not consider it again in her
    analysis of timeliness. In my view, it was unnecessary for her to do so. There
    was no realistic possibility of tainting established by the evidence in this
    case. The trial judge summarized McCarthys evidence as follows:

He was clear that he had not spoken to his employer about the
    events prior to preparing the statement, aside from speaking to the manager of
    The Drink at The Drink on the night [in question, April 23, 2011], because the
    manager happened to be in his office at The Drink at the time. Mr. McCarthy had
    advised the manager that he would prepare a statement describing the events of
    that evening.

[55]

Of note, the appellant was not inhibited by the hearsay nature of the
    statement in this regard. McCarthy had a present recollection surrounding the
    circumstances of the making of the statement. The appellant had the opportunity
    to cross-examine him about any possible tainting. Yet, there was nothing in the
    evidence to suggest that there were any other parties who might have had an
    interest in falsely or unfairly implicating the appellant such that they spoke
    to McCarthy within a couple of days after the assault to influence his
    statement. Nor was there any evidence that suggested McCarthys memory had been
    tainted, or was not otherwise sufficiently fresh and vivid as to be probably
    accurate.

[56]

I am therefore satisfied that this concern was adequately dealt with
    within the
Richardson
framework for the past recollection recorded
    exception.

[57]

The remaining reliability concerns of vagueness and the witness vantage
    point raised by the appellant were all properly left to the jury as questions
    of ultimate reliability. At trial, McCarthy was cross-examined at length on his
    vantage point during the beating. He had a present recollection of where he was
    during this event, which allowed defence counsel to emphasize to the jury that
    he was right in the middle of the commotion and did not have a clear view.

[58]

And, while the statement [t]
he Asian guy from Group A
    also started punching the other guy from Group B, is vague on its own, it was not
    vague when viewed in the context of McCarthys testimony as a whole. Contrary
    to the appellants submissions, the past recollection recorded was not used as
    identification evidence. Rather, it was used to establish that the individual
    that McCarthy identified as the Asian guy physically participated in the
    assault. McCarthys recognition of the appellant was otherwise established.

[59]

McCarthy recognized the Asian guy as a regular
    customer who came in together with the white guy. And he was able to pick him
    out of a photo line-up. McCarthy did not know or recognize anyone else in the
    appellants group other than the Asian guy and the white male duo, as well
    as the Industry bouncers who wore distinctive shirts with the Industry logo.

[60]

On this point, McCarthy had a present recollection
    about his identification of the appellant in contrast to other Asian males in
    his group. This was the subject of cross-examination at trial. Any concern
    about McCarthys ability to distinguish the appellant from others was then
    properly left to the jury to resolve as a matter of ultimate reliability.

[61]

Along the same lines, I do not share the appellants
    concern about the vagueness of who the other guy was and what started
    punching meant. McCarthy had a present recollection of the white guy
    sucker-punching one of the two victims; there were two people in Group B, so the
    other guy was the one who had not been sucker-punched. In the context of the
    evidence as a whole, it was clear that this was Morrice.

[62]

In addition, given that the hearsay was limited to one
    sentence and that the witness had a present recollection about everything else
    surrounding that sentence, it is hard to imagine how the cross-examination
    would have been any different if McCarthy had testified directly about the
    contents of the sentence in question.

[63]

For these reasons, I am of the view that the nature of the admitted past
    recollection recorded evidence did not raise reliability concerns that needed
    to be addressed under the principled approach to hearsay evidence. It was
    properly admitted under the past recollection recorded exception. I would
    dismiss this ground of appeal.

(ii)

Were the narrative portions of McCarthys statement misused?

[64]

The appellant argues in the alternative that the manner in which the
    past recollection recorded statement was addressed at trial created a risk that
    the jury misused that evidence. He notes that portions of the statement that
    were entered were clearly inadmissible. Worse, in his view, these inadmissible
    portions were prior consistent statements that the Crown used to artificially
    enhance McCarthys credibility.

[65]

While the Crowns submissions on this point appear to have been based on
    a misunderstanding of what exactly was the admitted past recollection recorded,
    I would reject this ground because I do not believe that the appellant was
    prejudiced by the Crowns submissions.

[66]

As noted earlier, the admitted past recollection recorded was just the
    one sentence about the appellant punching one of the victims. The surrounding
    sentences were then read in as narrative to provide context for that sentence,
    without objection from defence counsel.

[67]

Since McCarthy had a present recollection of the events in those
    statements, and testified accordingly, the narrative sentences from his
    statement were not admissible for the truth of their contents. For ease of
    reference, I have reproduced the portion of the statement that was read in at
    trial, numbered the sentences and underlined the impugned portions:

(1)
I remember seeing the white guy
    from Group A all of a sudden sucker punch one kid from Group B.
(2)
The
    Asian guy from Group A also started punching the other guy from Group B.

(3) So the two kids started getting stomped by about 5 or 6
    guys from Group A.

(4) I believe the Industry
    guys were just watching, I don't recollect them actually fighting anybody but
    they weren't helping the situation.

[68]

In his submissions, Crown counsel drew it to the attention of the jury
    that because McCarthy did not remember the details of his statement anymore, this
    piece of evidence required extra scrutiny. He advised the jury that one way of
    giving evidence extra scrutiny is to look for corroboration from other
    evidence. He then went through each of the four statements that were read in,
    and pointed out any corroboration for them provided by other witnesses at trial.
    This was despite the fact that McCarthy actually did have a present
    recollection of the narrative sentences, and thus they did not require extra
    scrutiny. Defence counsel offered no objection to these submissions at trial.

[69]

For the first sentence, Crown counsel pointed out that there was no
    corroboration. He then highlighted, on the actual past recollection recorded
    sentence, that both Morrice and Fradette testified that the appellant punched
    Morrice, although they did so by identifying him as the driver of the white
    pick-up truck. Crown counsel explained to the jury how McCarthy was not just
    identifying any Asian guy, but rather had recognized him as the Asian guy who
    was part of a pair including the white male. On the third and fourth
    sentences, Crown counsel noted that Morrice and Fradette testified that there
    were a number of people involved and accepted defence counsels suggestion that
    some people were just standing at the sidelines.

[70]

While it was technically improper to treat those narrative statements as
    admissible for the truth of their contents, given that McCarthy actually
    testified accordingly, there was no prejudice to the appellant in that regard.

[71]

Importantly, the narrative statements were never compared to McCarthys
    testimony at trial. This was not a case in which the narrative statements were
    used as a prior consistent statement to bolster the credibility of the witness
    in-court testimony on the same evidence.

[72]

Nor did the Crown make any rising tide lifts all boats type of
    argument suggesting that the corroboration of the narrative sentences raised
    the reliability of the past recollection recorded sentence. Rather, the Crown
    sought to offer corroboration individually for all the specific details it
    appears to have mistakenly thought called for extra scrutiny. Based on my
    reading of Crown counsels submissions, I am satisfied that no such misuse
    would have occurred.

[73]

Of course, it would have been preferable for Crown counsel to identify
    the specific passage that required extra scrutiny and address any corroboration
    of the other passages separately. Arguably though, the effect of counsels
    submissions was to suggest that the jury ought to treat the evidence from the
    narrative statements with more caution than was actually due.

[74]

In my view, as a whole, the manner in which the past recollection
    recorded evidence was addressed at trial would not have led the jury to misuse
    it. I would dismiss this ground of appeal.

(2)

The phone call evidence ground

[75]

The appellant submits that the recorded phone call to police the day
    after the alleyway beating, which purported to connect the appellant to the
    white truck, was also mishandled by the trial judge.

[76]

He says that the jury was not properly instructed on the procedure set
    out in
R. v. Evans
, [1993] 3 S.C.R. 653, which calls for the trier of
    fact to first determine whether the statement was made by the accused before
    making any use of that evidence. Had the jury been properly instructed, he
    submits, it is not inevitable that they would have concluded that the appellant
    did in fact make that call. In turn, the phone call evidence would have been
    inadmissible hearsay, and the jury may well have come to a different verdict.

[77]

I disagree. The jury was properly instructed on this evidence and, in
    any event, the identity of the appellant was clear and effectively conceded by
    defence counsel.

(a)

Facts

[78]

The significance of the phone call evidence is that, as noted above,
    Morrice and Fradette identified Morrices assailant in the alleyway beating as
    the driver of the white pick-up truck from earlier that night. This provided an
    alternate route for the jury to identify the appellant, apart from McCarthys
    evidence.

[79]

That phone call took place the day after the assaults, when the Ottawa
    police service non-emergency line received a call from a person identifying
    himself as Khamea Louangrath, the appellant.

[80]

The person provided the same address, date of birth, as well as cell
    phone and home phone numbers as those of the appellant. The purpose of the call,
    he said, was to report the damage done to a white Ford F-150 pickup truck at
    St. Patrick and Cumberland, which is three blocks away from where the truck was
    parked after the parking lot assault.

[81]

The caller indicated that he had only noticed the damage the day after
    parking the vehicle downtown the night before. He also provided the licence
    plate number and added that he had been downtown the night before when he had
    had too much to drink. He explained that he had not wanted to drive home so he
    left the truck there overnight. Specifically, he said that he went to a bar at
    11:30 p.m. the night before and only got back to the truck to find it damaged
    at 12:30 p.m. the next day, just a few minutes before the call.

[82]

The caller then described the damage in some detail, stating that it
    looked like the truck had been scratched, kicked, and hit with a rock, but that
    he did not know who would want to damage his truck. He added that he needed a
    police report number, as requested by his insurance company.

[83]

Within a few minutes, the operator called back to seek clarification
    about the registered owner of the vehicle. The caller again identified himself
    as Khamea Louangrath and stated that the truck was registered under his brothers
    name, whose first name he correctly spelled as Phouthone. He said that he did
    not have his brothers date of birth. Ministry of Transportation records
    confirmed the information provided in the call, including the appellants date
    of birth and address, and the fact that the vehicle in question was a 2008 Ford
    pick-up truck registered to Phouthone Louangrath, who lived at the same address
    as the appellant.

[84]

At trial, in closing submissions before the jury, defence counsel stated
    that, while this was for the jury to determine, the evidence suggested that it
    was the appellant who made the call to Ottawa police reporting damage to the
    truck. Defence counsel argued that the fact that the appellant called the
    police pointed to his innocence, in the sense that someone anticipating
    criminal charges would not volunteer to call the police about a car that was
    not even registered to him, and give them all their correct information.

(b)

Discussion

[85]

The procedure in
Evans
is employed only in situations where there
    is some doubt as to the identity of the declarant who is purported to have made
    the out- of-court statement and some evidence to permit the issue to be put to
    the jury. For those cases, Sopinka J. in
Evans
, at pp. 668-69, set out a
    two-pronged analysis to be followed:

First, a preliminary determination must be made as to whether,
    on the basis of evidence admissible against the accused, the Crown has
    established on a balance of probabilities that the statement is that of the accused.

If this threshold is met, the trier of fact should then
    consider the contents of the statement along with other evidence to determine
    the issue of innocence or guilt.

While the contents of the statement may only be considered for
    the limited purpose to which I have referred above in the first stage, in the
    second stage the contents are evidence of the truth of the assertions contained
    therein.

[86]

In this case, I am satisfied that the trial judge correctly charged the
    jury on the phone call evidence. Although she did not set out both prongs of
    the
Evans
procedure when first discussing the phone call evidence, her
    charge as a whole  functionally instructed the jury on how they should approach
    this evidence.

[87]

First, under the heading videotape and audiotape recordings and
    transcripts, the trial judge instructed the jury that it was for them to
    decide whether or not the person who identified himself in the telephone
    conversation as Khamea Louangrath was one and the same person as the accused.

[88]

Shortly thereafter, under the heading out of court utterances and
    statements of Khamea Louangrath, the trial judge repeated that it was for the
    jury to determine whether the appellant had made any out-of-court statement.
    Then, she instructed the jury that unless you decide that Mr. Louangrath made
    a particular remark or statement, you must not consider it as evidence that
    supports a finding of guilt.

[89]

As noted above, defence counsel effectively conceded that the appellant
    made this phone call when he told the jury that the evidence suggested that he
    had. It is not surprising that he made no objection to the jury charge.

[90]

Nor is it surprising that he would agree that the evidence suggested the
    appellant made the call. The evidence was overwhelming on this point. The caller
    provided not only the appellants correct name, birth date, address, and
    telephone numbers, but also a specific and accurate description of the truck,
    which included the exact model, year and edition, as well as the correct
    spelling of the trucks registered owners name, who was the appellants
    brother. The caller also explained the circumstances that precipitated his call,
    which were that he had been out at a bar in the area the night before and was
    reporting the damages for insurance purposes.

[91]

I would not give effect to this ground.

D.

SENTENCE APPEAL

[92]

The appellant submits that the trial judge made two errors in principle
    when determining the appropriate sentence, and that, in any event, the
    three-and-a-half year sentence imposed was manifestly unfit. While I would
    grant leave to appeal sentence, I would reject the appellants three grounds of
    appeal on sentence, and dismiss the sentence appeal.

[93]

First, the appellant argues that the trial judge placed undue emphasis
    on Morrices traumatic brain injury that resulted from the appellants assault.
    This purported undue emphasis included noting that, because of the permanent
    brain damage, Morrice had reduced cognitive ability, diminished academic and
    work opportunities, and experienced anxiety and depression. Although the
    appellant conceded that he caused the traumatic brain injury, the trial judges
    emphasis on it and the injuries that derived from it was unfair, he says,
    because the injuries were neither an intended nor foreseeable result of the
    attack.

[94]

I disagree. The appellant repeatedly punched Morrice in the head while
    he was in a defenceless position, causing his head to snap back and hit a brick
    wall. He hit him hard enough that his jaw broke in two places, requiring two
    surgeries, and that the jaw be wired shut for six weeks. The appellant intended
    to assault Morrice, and the injuries caused by that assault were entirely
    within the scope of harm foreseeable at the time of the offence. In my view, it
    would have been unreasonable to conclude otherwise. The trial judge was acting
    well within the bounds of her discretion to emphasize the consequences of the
    assault to the extent that she did.

[95]

Second, the appellant argues that the trial judge erred in principle by failing
    to consider sentencing authorities when imposing sentence. That is because she
    merely listed the relevant jurisprudence submitted to her and stated that she
    had reviewed all of these authorities. The trial judges failure to
    meaningfully engage with analogous cases, he submits, violated the parity
    principle. In his view, the trial judges reasons ought to have demonstrated
    that she grappled with the parity principle in a meaningful way by comparing
    the cases that she had listed to the case at hand.

[96]

I am unable to agree with this submission.

[97]

Sentencing is a highly individualized exercise whose primary aim is to
    craft a punishment that is proportionate to the gravity of the particular offence
    and the degree of responsibility of the particular offender. While parity of
    sentences is an established principle of sentencing and a desirable objective, one
    that guides a sentencing judges exercise of her broad discretion, it is
    subordinate to the fundamental principle of proportionality:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 2, 54.

[98]

It follows that sentencing precedents alone  either individually or
    through the establishment of sentencing ranges  cannot conclusively determine
    the appropriate sentence in a given case. Rather, the sentences imposed on
    similar offenders for similar offences committed in similar circumstances, from
    which sentencing ranges are derived, provide historical portraits for the use
    of sentencing judges:
Lacasse
, at para. 57. To appreciate those
    portraits, however, does not demand an in-depth comparative analysis in every
    case.

[99]

Here, the trial judge heard the parties submissions on relevant
    authorities, acknowledged considering them, noted the importance of the parity
    principle, yet recognized that she needed to craft a sentence that was
    individualized to the gravity of the offences and degree of responsibility of
    this offender. She was not required to demonstrate further that she considered
    the parity principle by comparing those sentencing authorities to the case at
    hand in her reasons. There was no error in principle in this regard.

[100]

Third, the
    appellant submits that even if this court finds no error in principle, his
    sentence was manifestly unfit and should thus be overturned.

[101]

In my view, the
    three-and-a-half year global sentence imposed was not manifestly unfit. The
    appellant had a high degree of moral blameworthiness for committing these very
    serious offences of assault causing bodily harm, two forcible seizures, and common
    assault. Although the appellant was only 23 years old at the time of the
    offences, was a productive member of the community, had family support, and
    expressed remorse and assumed responsibility for his actions at the sentencing
    hearing, the following factors amply support the trial judges disposition:

 This was a vigilante crime of revenge;

 The appellant led a group of men in intimidating, seizing and
    attacking Morrice and Fradette;

 The forcible seizure and the attack were premeditated;

 The appellant punched Morrice when he could not defend
    himself as his arms were being held by the appellants accomplices;

 Despite Morrices head repeatedly hitting a brick wall, the
    appellant did not stop punching him in the head;

 Morrice suffered significant injuries, including permanent
    impairment of some of his brain functions; and

 The appellant was serving a conditional sentence when he committed
    the present offences.

[102]

The sentences
    recently affirmed by this court in
R. v. Brouillard
, 2016 ONCA 342, a case
    with circumstances similar to this one, support that the sentence imposed in
    this case was not manifestly unfit.

[103]

In that case,
    Brouillard and his co-accused Tang were convicted of aggravated assault after each
    struck a defenceless victim in the head once after escorting him outside of a
    bar, causing a traumatic brain injury. Brouillard was sentenced to
    three-and-a-half years imprisonment, and Tang to three years imprisonment.

[104]

Brouillard and
    Tang were convicted of aggravated assault, and I note that the appellant
    complains that the trial judge overly relied on sentencing precedents that
    featured convictions for aggravated assault, when the appellant was convicted
    of assault causing bodily harm, a lesser offence.

[105]

In my view, when
    an accused is convicted of assault causing bodily harm that results in serious
    injuries, the two offences are highly analogous. That is because aggravated
    assault and assault causing bodily harm have the same essential elements and
    differ only in the nature of the injury caused by the assault  namely, aggravated
    assault specifically requires a wounding, maiming, disfigurement or
    endangerment of life: see e.g.
R. v. Palombi
, 2007 ONCA 486, 222 C.C.C.
    (3d) 528, at para. 39.

[106]

Since I conclude
    that the trial judge did not err in principle or impose a manifestly unfit
    sentence, I would accordingly not interfere with the sentence imposed.

E.

DISPOSITION

[107]

For these
    reasons I would dismiss the conviction appeal. I would grant leave to appeal
    sentence, but dismiss the sentence appeal.

Released: July 8, 2016 (E.A.C.)

M. Tulloch J.A.

I agree. E.A. Cronk J.A.

I agree. R.G. Juriansz J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.K., 2016 ONCA 589

DATE: 20160725

DOCKET: C56170

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. K.

Appellant

M. K., acting in person

Diana Lumba, for the appellant

Michael Bernstein, for the respondent

Heard: July 13, 2016

On appeal from the conviction entered on April 2, 2012
    and the sentence imposed on September 27, 2012 by Justice Robert J. Smith of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant, now 54 years old, was convicted of several sexual
    offences in connection with a single complainant who was then between 13 and 19
    years of age. The conduct included kissing, fondling, and partial intercourse.
    The appellant was in a position of trust in relation to the complainant.

[2]

The case for the Crown consisted of the testimony of the complainant.
    The appellant testified on his own behalf. He denied the conduct in which the
    complainant said he had engaged. He also adduced the evidence of the
    complainants mother and her brother. To some extent, at least, the evidence of
    those two witnesses supported the testimony of the appellant. The trial judge
    rejected their evidence, in part at least due to bias, a calculated effort to
    assist in the exculpation of the appellant.

[3]

The appellant contends that his conviction is flawed by several errors
    in the reasoning process the trial judge followed to reach his conclusion that
    the Crown had proven the appellants guilt beyond a reasonable doubt. He also
    says that the sentence imposed  7 years less credit of 250 days for time spent
    in pre-disposition custody  reflects error.

The Appeal against Conviction

[4]

To take first the appeal from conviction.

[5]

The appellant says that the trial judge erred:

i.

in approaching the case as a credibility contest between the complainants
    assertions and the appellants denial, rather than by faithful adherence to the
    principles of
R. v. W.(D.)
, [1991] 1 SCR 742;

ii.

by placing undue emphasis on the evidence of the appellants controlling
    nature and a note made by the complainant in her math book  If anything
    happens to me its because of my step-dad  in reaching his conclusion of
    guilt;

iii.

in reversing the burden of proof by relying on the disbelief of two
    defence witnesses of the complainants testimony to reject their evidence adduced
    in support of the defence;

iv.

by making impermissible use of the complainants good character adduced
    in a cross-examination of defence witnesses; and

v.

in rejecting the appellants testimony in part because it was difficult
    to follow.

[6]

We are not prepared to interfere with the findings of guilt on any basis
    advanced, whether considered individually or cumulatively.

[7]

To begin, at the outset, the conclusion and at least once during the
    course of his reasons, the trial judge made explicit reference to the decision
    in
W.(D.).
He expressly stated that the trial was
not
a
    credibility contest. He considered the credibility of each witness who
    testified, found the complainant worthy of belief and the defence witnesses at
    once incredible and their evidence unreliable. The mere fact that the trial
    judge reviewed the evidence of the complainant and the defence witnesses
    consecutively does not establish that he considered the case a credibility
    contest in view of his express statements to the contrary.

[8]

The assignment of weight to the evidence of witnesses who testify in a
    criminal trial is for the trial judge to determine. We do not retry cases. We
    do not recalibrate the weight assigned to evidence at one remove from the trial
    process. Reading the reasons of the trial judge as a whole, in a functional way
    as we are required to do, we are unable to say that the trial judge applied any
    improper principle in his assessment or misapprehended the evidence adduced at
    trial. Further, we observe that at least two of the items of evidence about
    which the appellant claims misuse were adduced by defence counsel at trial.

[9]

In connection with the additional grounds suggested by the appellant
    himself, we are unable to see any substance in them. The majority envisage the
    introduction of fresh evidence. All fail on the basis of at least two of the
Palmer
criteria.

The Appeal from Sentence

[10]

The appeal from sentence was but faintly pressed. We are satisfied that
    the sentence imposed was entirely fit. It falls within the appropriate range
    and reflects no error in principle or disproportionate emphasis on any relevant
    sentencing objective, principle or factor.

Conclusion

[11]

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

David Watt J.A.

S.E. Pepall J.A.

M. Tulloch J.A.