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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. J.E., 2018 ONCA 1049

DATE: 20181218

DOCKET: C65794

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.E.

Appellant

Margaret Bojanowska, for the appellant

Andrew Hotke, for the respondent

Heard and released orally: December 11, 2018

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for
    assault and sexual assault.  The incidents occurred between the appellant and
    his girlfriend, who was pregnant. It was alleged that the appellant punched the
    complainant in the stomach on one occasion and then a month or two later forced
    sexual intercourse on her.

[2]

On the assault offence, the trial judge rejected
    the appellants explanation that the contact was accidental.  He was entitled
    to reach that conclusion on the evidence.

[3]

In terms of the sexual assault, this was
    inherently a credibility case.  The trial judge found that the complainants
    evidence regarding the sexual assault was confirmed by a witness, D.R., whom
    the trial judge believed.

[4]

Duty counsel raises concerns about the trial
    judges credibility conclusions regarding D.R. and asserted inadequacies in the
    reasons related to those conclusions.  While we accept that the trial judge
    might have given more detail in support of his conclusion that he believed
    D.R., the fact is that the trial judge heard and saw the witness and was in the
    best position to assess his evidence.  It is also of some importance that
    D.R.s evidence was essentially consistent on the central issue with the
    evidence of the complainant.

[5]

Determinations of credibility are inherently
    discretionary and absent a palpable and overriding error this court should not
    interfere.  No such palpable and overriding error is shown here.  Indeed as the
    Supreme Court of Canada said in
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    SCR 788, at para. 26: Rarely will deficiencies in the trial judges
    credibility analysis as expressed in the reasons for judgment merit
    intervention on appeal.

[6]

In the end result, the reasons adequately
    explain why a conviction was made.  The appeal is dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

I.V.B. Nordheimer 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. J.R., 2018 ONCA 1070

DATE: 20181220

DOCKET: C64626

Feldman, MacPherson and Nordheimer J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.R.

Appellant

Delmar Doucette, for the appellant

Lorna Bolton, for the respondent

Heard and released orally: December 12, 2018

APPEAL BOOK ENDORSEMENT

[1]

Both the appellant and his common law spouse were given conditions on
    their sentences under s. 743.2.1 of the
Criminal Code
, prohibiting
    each of them from communicating with the other while each is in custody.

[2]

K.S. is subject to a six year sentence while the appellant received nine
    years, eleven months and fifteen days after pre-sentence custody.

[3]

The appellant seeks a variation of the order imposed on him to allow him
    to communicate with K.S. now or at least after she is released. The trial judge
    anticipated the possibility of a future adjustment to this term of the
    sentence.

[4]

We are persuaded that it is appropriate to vary the order at this stage
    to allow the appellant to communicate with K.S., if she initiates communication
    with him after she is released, but while he is still in custody. Order
    accordingly.


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. J.W.M., 2018 ONCA 983

DATE: 20181205

DOCKET: C64709

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.M.

Appellant

Ian Carter, for the appellant

J. Sandy Tse, for the respondent

Heard and released orally: November 8, 2018

On appeal from the conviction entered on November 3, 2017
    by Justice Robert G. Selkirk of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario Court of Justice, the
    appellant was convicted on a single count of voyeurism.

[2]

The case for the Crown at trial was that during a camping trip with his
    children, the appellant is alleged to have utilized the video recording
    capacity of his cellphone to record the complainant changing into her bathing
    suit before going swimming. For his part the appellant denied having
    intentionally engaged in any such video recording.

[3]

On appeal, the appellant advanced two submissions in his factum focusing
    upon the reasons for judgment of the trial judge. In oral argument the
    appellant did not pursue the submission that the trial judge failed to properly
    apply the principles of
R. v. W.(D.)
, [1991] 1 S.C.R. 742. The oral
    submissions focused on a single bullet point in the trial judges reasons for
    judgment which the appellant says is flawed by speculation.

[4]

We are not persuaded that this ground of appeal warrants our
    intervention. On a reading of the trial judges comprehensive reasons as a
    whole, we are satisfied that what the impugned passage is pointing out is that
    to engage the video recording capacity of the cellphone, the appellant had to
    follow a series of three steps.

[5]

To determine whether this claim of error warrants our intervention, it
    is critical to appreciate that prior to the impugned passage, the trial judge
    had already found:

i.

that on two occasions immediately before the complainant entered the
    tent to change into her bathing suit, the appellant had plugged in his
    cellphone in the tent to charge it;

ii.

that immediately after the complainant had changed into her bathing suit,
    the appellant returned to the tent, removed his cellphone and immediately went
    to the washroom facilities where he remained for a period of minutes;

iii.

that the period for which the cellphone was charged was about three minutes;

iv.

that the charging of the phone was a pretext to get the phone into the
    tent;

v.

that the positioning of the phone was intentional so that its video
    recording function was propped up and pointed towards the centre of the tent
    where the complainant would be changing; and

vi.

that this happened on two occasions.

[6]

In light of these findings and his correct statement of the steps
    necessary to engage the video recording function of the cellphone, we see no
    reversible error in the impugned paragraph.

[7]

As we read the trial judges reasons in this paragraph, we are satisfied
    that it was the accumulation of steps that satisfied the trial judge that this
    conduct was intentional, not accidental. Even if one accepts in the abstract
    that one or other of the necessary steps could have occurred accidentally, his
    finding that the screen had to be swiped was well-supported by the evidence,
    and combined with his previous findings, proved the intentional nature of the
    recording beyond a reasonable doubt.

[8]

For these reasons, the appeal is dismissed.

David Watt J.A.

K. van Rensburg J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jiang, 2018 ONCA 1081

DATE: 20181227

DOCKET: C62742

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chunqi Jiang

Appellant

Delmar Doucette, Andrew Furgiuele and Zahra Shariff, for
    the appellant

Milan Rupic and Rebecca Schwartz, for the respondent

Heard: December 4, 2018

On appeal from the conviction entered by Justice Gisele
    M. Miller of the Superior Court of Justice on June 26, 2014, sitting with a
    jury, and from the sentence imposed on August 29, 2014.

Pardu J.A.:

[1]

Chunqi Jiang appeals from his conviction for
    second degree murder. The Crown failed to disclose relevant evidence until
    partway through the appellants cross-examination. These were records relating
    to the appellants mothers health, which were relevant to the appellants defence
    that his mother killed the victim. Whether she was relatively robust or quite
    infirm had a bearing on the likelihood that she, rather than the appellant, was
    the killer. The mother died as a result of cardiac arrhythmia several weeks
    after the death of the victim in this case.

Mistrial application

[2]

The appellant applied for a mistrial after learning of the
    Crowns failure to disclose.
The trial judge concluded that
    there had been a serious breach of s. 7 of the
Canadian Charter of
    Rights and Freedoms
caused by the late disclosure of the
    medical records:

[66] I am satisfied that actual prejudice has
    been shown in respect [to] the fact that counsel for Mr. Jiang were unable, as
    a result of the late disclosure, to address in examination in chief of Mr.
    Jiang, the contents of the medical records and his awareness of the various
    health issues of Fen Gen Zhang that are apparent in the records.

[67] The conduct of the Crown in holding back
    the medical records until after Mr. Jiang was giving testimony and had
    completed examination in chief is a serious breach of Mr. Jiangs right to
    disclosure.

[3]

At the hearing of the mistrial application, the
    trial judge heard from Dr. Pickup, a forensic pathologist, about the
    significance of the medical records as they related to the mothers physical
    abilities. She understood Dr. Pickup to have testified at that time that the mother
    may well have been capable of inflicting the injuries sustained by the victim. On
    that basis, expecting that Dr. Pickup would testify to the same effect at the
    trial, she dismissed the application, concluding that any unfairness from the
    failure to disclose the evidence could be neutralized before the jury. Dr.
    Pickup however changed his evidence before the jury to say that it was beyond
    his competence as a forensic pathologist to express an opinion about the
    mothers physical abilities.

Arguments on appeal

[4]

The appellant and the Crown agree on the test to
    determine whether an appellant is entitled to a new trial as a result of
    non-disclosure by the Crown, derived from
R. v. Dixon
, [1998] 1 S.C.R. 244,
and
R. v. Skinner
, [1998] 1
    S.C.R. 298
. An appellant is entitled to a new
    trial if he demonstrates that there is a
reasonable
    possibility
the non-disclosure affected the outcome at
    trial or the overall fairness of the trial process:
Dixon
,

at paras. 31-35. A
    trial is unfair if it is
reasonably possible
that disclosure [of the undisclosed item] would have had an impact
    on the conduct of the defence at trial:
Skinner
, at para. 12.

[5]

The Crown submits that the non-disclosure
    ultimately enured to the appellants benefit because of the way the trial
    unfolded and that the trial judges decision to refuse the mistrial application
    was correct. He submits that it was the Crown, rather than the defence, who
    lost credit with the jury and that by the end of the trial the non-disclosure
    meant nothing as Crown counsel conceded that the mother would have been
    physically capable of inflicting the fatal injuries.

[6]

The appellant submits that his defence would
    have been conducted differently had the medical records been disclosed before
    his examination in chief. He would have introduced the evidence about his
    mothers health in his own examination in chief, had he known it would be an
    issue, thus blunting the ability of the Crown to suggest he was deliberately
    concealing the real state of her health. The appellant also submits that the
    manner in which the Crown cross-examined him about his mothers health, before
    the records were disclosed, undermined his credibility in the eyes of the jury,
    and that this was compounded by the Crowns closing address. He also submits
    that there is a reasonable possibility that the non-disclosure affected the
    outcome of the trial.

The events leading to the non-disclosure

[7]

Since there will be a new trial, I confine my
    review of the facts to the skeletal essentials required to deal with the
    grounds of appeal advanced.

[8]

The following chronology describes the Crowns
    acquisition of the medical records, the failure to disclose them and the cross-examination
    by the Crown that alerted the defence to the non-disclosure:

·

Tuesday June 3
:
    Crown counsel received the mothers OHIP records and sent them to Dr. Pickup
    but did not disclose them to the defence

·

Friday June 6
:
    Crown counsel received the mothers medical records and sent them to Dr. Pickup
    but did not disclose them to the defence

·

Saturday June 7
:
    the family doctor told the officer in charge that the mother had been
    relatively healthy

·

Monday June 9, at 01
:
14
: Dr. Pickup sent an email note to Crown counsel  in
    which he said, among other things, that the mother had had an exercise stress
    echocardiogram for her heart in December 2011 and appeared to perform
    satisfactorily

·

During the interval June
    9-
13
: Dr. Pickup did
    not tell Crown counsel that the mother was very sick or that she had died of a
    heart attack

·

Monday June 9
:
defence counsel started her direct examination of the
    appellant

·

Wednesday June 11
:
defence counsel concluded her direct examination of the
    appellant; and Crown counsel began his cross-examination of the appellant

·

The Crowns cross-examination of the appellant
    led his counsel to suspect that medical records had not been disclosed

[9]

In the course of his cross-examination of the
    appellant, the trial Crown first elicited evidence that the appellant was
    capable of physical labour and was stronger than the victim. The Crown then
    embarked on the following line of questioning:

Q. And your mother was very sick; wasnt she,
    sick physically at the time?

A. Why are you -- based on what are you saying
    my mother was very ill?

Q. Based on your mothers medical records,
    sir. Im going to suggest to you -- well based on her post-mortem she died of a
    massive heart attack with 90 percent of her coronary artery blocked, are you
    aware of that?

A. I have never heard of that.

Q. All right. You -- your mother -- did you
    take your mother to a doctor in December of 2011 because she had -- she was
    experiencing chest pains?

A. I remember we just went to our family
    doctor to have a check up, thats all. But I dont remember the doctor ever
    mention to me that theres a huge issue regarding my mothers health.

Q. She -- she was -- she had to go to an
    Echocardiogram because of fears about her poor heart, right.

MS. INTERPRETER: Interpreter doesnt know how
    to translate Echocardiogram.

MR. McGUIRE: I dont know, a test that people
    get in order to check whether their heart is not working properly.

MS. INTERPRETER: Okay. Thank you.

A. I remember she mentioned those kinds of
    things to me.

MR. McGUIRE: Q. Cause you had the .

A. But she was also very clear to me that she
    said she was only doing that under the doctors suggestion and she also said
    its not exactly for her it is to benefit the doctor.

Q. Okay. So thats -- are you seriously
    saying, sir, that no one has ever told you that your mother died of massive
    heart attack on September the 9th. No one has ever said that to you?

MS. WELLS: Thats actually not accurate based
    on the medical evidence that we have. So if my friend is going to put something
    to my client, he should do it accurately.

MR. McGUIRE: All right.

MS. WELLS: Knowing the information that we from
    the doctor.

MR. McGUIRE: That she died of a 90 percent
    blocked coronary artery. Nobody ever told you that? I think thats a heart
    attack but maybe Im wrong.

MS. WELLS: Its not.

MR. McGUIRE: All right.

A. I have never heard of that until today I
    dont know how my mother passed away. All I see was the location where my
    mother passed away there seem to be a pool of blood.

MR. McGUIRE: Q. Do you see those photos.

A. These photos with blood was taken by my
    friend.

Q. Do you see the photograph on screen here
    says -- this is your mom right here, this is her name, Fen Gen Jhang, correct?

A. Yes.

Q. It says dissolve one tablet under the
    tongue when having chest pain every five minutes as needed or three times. If
    no relief go to an emergency room. Are you aware that your mother was taking
    pills every five minutes for chest pains, sir?

THE COURT: If needed

MR. McGUIRE: If needed.

MS. WELLS: Your Honour, I have an objection to
    some of this cause it would appear that the -- the Crown may have medical
    records that the defence doesnt. So Im going to ask to address something in
    the absence of the jury.

THE COURT: Okay. Well ask the jury to step
    out.

[10]

Contrary to what was suggested in cross-examination,
    the mother did not die of a heart attack but of a sudden cardiac arrhythmia which
    might not have earlier interfered with her ability to carry out normal physical
    activities. The mothers family doctor reported to the officer in charge on
    June 7 that the mother had been relatively healthy but had medical issues
    pertaining to her heart and anxiety about her relocation to Canada.

[11]

Dr. Pickup had reviewed her medical records and
    reported to the trial Crown on June 9 that the mother had undergone an exercise
    stress echo on December 19, 2011 and had appeared to perform satisfactorily. Contrary
    to the suggestions put by the trial Crown, Dr. Pickup did not report that the
    mother was very sick, or sick physically.

[12]

On the mistrial application, Dr. Pickup
    testified as follows:

Q. All right. Now in terms of just your review
    the ladys -- this ladys health records, the ones that -- that you received,
    can you advise Her Honour as to what -- first of all in -- in the course of
    your -- youre a pathologist and youre also a forensic pathologist, is that
    correct?

A. Yes.

Q. Are you -- is part of your duties and
    responsibilities from time to time reviewing health records to -- and forming
    opinions with respect to them?

A. Yes.

Q. Do you feel qualified to be able to look at
    these records and offer an opinion with respect to what theyre about?

A. Yes.

Q. All right. And whats -- whats -- what did
    you -- what did you glean from your review of her records?

A. From the review of the medical records
    supplied, which are from the family doctor here in Canada there are basically
    four things that I gleaned from them. Number one is that she had high -- high
    blood pressure or hypertension and it was controlled with medication. So there
    are a number of reports here where her blood pressure is actually normal, but
    shes taking medication for it. She has changes in her retina, which is the --
    the back of the eye that helps us to see that are a characteristic of longstanding
    hypertension or high blood pressure. She had decreased bone mineral density to
    the point that she was diagnosed with something called osteopenia, which is the
    stage before osteoporosis.

Q. Is that -- is that an unusual finding in
    somebody of her age?

A. Actually, no, most menopausal women will
    have some degree of osteopenia.

Q. Okay.

A. And because she had gone to her doctor on a
    few occasions complaining of chest pain or numbness in her arm, her doctor
    rightly so sent her for a stress test and the stress test that was performed
    was normal.

Q. It was what?

A. Normal.

Q. Okay. Is that -- is that your assessment of
    -- of her medical records?

A. Yes.

Q. All right. And -- and just in that regard, with
    that -- with your review of her medical records and your conduct of the
    post-mortem examination, are you able one way or the other to express an
    opinion about whether this woman would be capable of I guess committing the
    offence that -- with respect to the -- the lady who you -- the other lady you
    autopsied, Ms. Liu? Can you say one way or the other?

A. No.

Q. And -- and -- and explain that, why not?

A. Because people with significant coronary
    artery disease can live their lives and not know that they have significant
    coronary arteries until one day for reasons that are really unknown, their
    heart may spontaneously go into an abnormal rhythm.

[13]

The trial judge reasonably interpreted this evidence
    as evidence that Ms Zhang may well have been physically capable of inflicting
    the injuries to [the victim] and held at para. 71 of her reasons for decision
    on the mistrial application that this was important evidence which effectively
    neutralized the prejudicial impact of questions posed to the appellant by the
    Crown relating to the medical records.

[14]

At trial, however, Dr. Pickup testified as
    follows:

Q. Okay. Now in terms of your ability as a
    forensic pathologist, I mean maybe we have ideas of what you can actually say
    in court and what you cant say, but are you able to say, as a forensic
    pathologist, one way or the other, whether this woman would be physically capable
    of inflicting the injuries that you saw on -- on Guang Hua Liu?

A. No, thats really not a question for a
    forensic pathologist to answer.

Q. Okay. You cant -- you cant assist in that
    regard?

A. No.

Q. One way or the other?

A. No.

[15]

In his closing submissions to the jury the trial
    Crown referred to the mothers health issues:

Ms. Wells in her argument said Im going to
    suggest to you that she was physical incapable. Certainly not, she had two arms
    and two legs, I guess shes theoretically capable of doing this. But the reason
    we brought out the health information, both from her autopsy, health records, putting
    it together was to show you a factor that is involved in this. A factor that is
    just as relevant as their relative heights, just as relevant as their relative
    age, just as relevant as their relative -- as their relative build, the fact
    that this woman had health issues, full stop. It was led before you just so you
    would have a complete picture, so you would not be under any illusions as to
    what her state of health was. Youve heard that evidence, you decide. I submit
    its a relevant factor and thats for you to decide.

Analysis

[16]

I am satisfied that there is a reasonable
    possibility that the non-disclosure affected the overall fairness of the trial
    process. The appellant was left stumbling in front of the jury to respond to
    factual assertions that were contradicted to some extent by the medical records
    which had not been disclosed. The clear inference suggested by the questions is
    that the mother was very ill and could not have killed the victim, that this
    was apparent to the appellant and that his testimony was not credible. Had
    defence counsel been made aware of the issues raised by the medical reports, it
    is likely she would have canvassed the mothers health issues in greater depth
    in examination in chief. This unfairness was compounded by the trial Crowns closing
    address suggesting that the medical evidence was led so you would not be under
    any illusions as to what her state of health was. This was a return to the
    theme expressed in the Crowns cross-examination of the appellant about his
    mothers health.

[17]

Just as in
R. v. LAT
(1993)
,
14 O.R.
    (3d) 378 (C.A.),
the late disclosure of the medical records
    adversely affected defence counsels ability to deal with credibility issues at
    trial.

[18]

This in itself is sufficient to require a new
    trial. However, there is also a reasonable possibility that the medical records
    could support an argument that the mother was physically capable of inflicting
    the wounds on the victim. In cross-examination Dr. Pickup went so far as to say
    there was nothing in the records that said the mother was incapable of
    inflicting the fatal wounds. I do not read the trial Crowns closing
    submissions as a concession that the mother was so capable. Rather, the Crown
    was attempting to make a virtue of its tardy disclosure of the records.

[19]

There is also a reasonable possibility that the
    non-disclosure had an impact on the outcome of the trial. Here there was a
    suggestion that the mother had some animus towards the victim because the
    victim had stolen precious jewelry from the mother. Because of the mothers
    antipathy towards the victim, and her presence in the home at the time of the
    killing, the mothers role in the killing, if any, was a live issue before the
    jury.

[20]

I would accordingly allow the appeal and direct
    a new trial. It is not necessary to deal with the sentence appeal.

G. Pardu J.A.

I agree C.W.
    Hourigan J.A.

I agree Harvison
    Young J.A.

Released: December 27, 2018

GP


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson-Lee, 2018 ONCA 1012

DATE: 20181211

DOCKET: C54611

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Troy Johnson-Lee

Appellant

Lance Beechener and Eva Taché-Green, for the appellant

David Finley and Davin Garg, for the respondent

Heard: October 30, 2018

On appeal from the convictions entered on May 23, 2009 by
    Justice Bruce Glass of the Superior Court of Justice, sitting with a jury.

Paciocco
    J.A.:

[1]

On September 1, 2006, an altercation between two groups flared up in a
    bar. When the bar closed, the two groups met outside. Orin Felix, from one of
    the groups, was fatally stabbed behind a library that was across from the bar. Only
    moments before, Trevor Hunter, another member of the same group, had been stabbed
    in the neck in the bar parking lot. Troy Johnson-Lee, who was with the other
    group, was convicted by jury of second degree murder in the death of Mr. Felix,
    and of attempting to murder Mr. Hunter.

[2]

Mr. Johnson-Lee appeals those convictions claiming that the trial judge
    erred in his instructions to the jury regarding post-offence conduct, and in
    a corrective instruction he provided to the jury.

[3]

I would dismiss his appeal for the reasons that follow.

POST-OFFENCE CONDUCT

[4]

Although circumstantial evidence confirming identification testimony
    provides a formidable case against Mr. Johnson-Lee, post-offence conduct evidence
    played a large role in his prosecution. Evidence was presented that: in his
    initial police statement he provided a false alibi involving his nieces mother,
    Ashley Owen (the Ashley Owen alibi); he lied about the jewelry he was wearing
    on September 1, 2006; and he destroyed the shirt he had been wearing at the bar
    before attempting to pass off to the police a different shirt as the one he wore
    to the bar.

[5]

Mr. Johnson-Lee argues that the trial judge erred in his jury instructions
    relating to this evidence.

[6]

Mr. Johnson-Lee also testified that he was with Latoya Dejonge at around
    the time Mr. Hunter was stabbed, a claim that Ms. Dejonge contradicted in reply
    evidence. During the trial, this was not identified by anyone as post-offence
    conduct but Mr. Johnson-Lee contends that, in the circumstances, the trial
    judge erred by failing to instruct the jury to refrain from using Ms. Dejonges
    contradiction of his claim as post-offence conduct relevant to his guilt.

[7]

I will address each of Mr. Johnson-Lees post-offence conduct grounds of
    appeal, in turn.

(1)

The No Probative Value Limiting Instruction

[8]

First, Mr. Johnson-Lee argues that the trial judge erred by failing to
    give a limiting instruction that the post-offence conduct had no probative
    value. During the trial, Mr. Johnson-Lee testified and admitted to having
    assaulted Mr. Felix before another man, Anthony Bailey, unexpectedly brandished
    a knife and stabbed Mr. Felix. Mr. Johnson-Lee contends that, given this
    admission, the post-offence conduct that the Crown relied on to confirm Mr.
    Johnson-Lees involvement in the offences charged is equally explained as an
    attempt by Mr. Johnson-Lee to avoid being implicated in the admitted assault. Because
    the post-offence conduct can be equally explained on this basis, a no
    probative value limiting instruction should have been given to the jury, as
    required by
R. v. Arcangioli
, [1994] 1 S.C.R. 129.

[9]

He also argues that even if his evasive conduct is not equally explained
    by the admitted assault, his evasive conduct is equally consistent with
    involvement in either the stabbing of Mr. Hunter or the stabbing of Mr. Felix.
    Since it was open to the jury to reject the Crown theory that one person committed
    both stabbings, this ambiguity denudes the evidence of probative value as proof
    of guilt by Mr. Johnson-Lee on either charge.

[10]

I
    do not agree with either submission. I will begin with the latter argument.

[11]

The
    Crown theory was that Mr. Johnson-Lee committed both offences. There was an
    evidentiary foundation for that theory. The admittedly false Ashley Owen alibi,
    in particular, was post-offence conduct evidence relevant to both offences. I
    do not accept, in these circumstances, that the possibility that different
    people committed the two offences undermines the probative value of proof that
    Mr. Johnson-Lee took evasive action to distance himself from those offences, particularly
    when the bulk of the eyewitness testimony supported the theory that one person
    committed the two offences.

[12]

The
    first no probative value argument is no more persuasive. Although there will
    be uncommon situations where post-offence conduct is ambiguous enough to have
    no probative value, a no probative value limiting instruction is not required
    where a jury can reasonably infer that the post-offence conduct is more
    consistent with the offence charged
: R. v. S.B.1
,

2018 ONCA
    807, at para. 72. This is the case here. The post-offence conduct was not as
    simple as spontaneous flight from a larger altercation where someone stabbed
    the victim, as it was in
Arcangioli
. The evasive conduct here occurred
    after Mr. Johnson-Lee was aware that the police were investigating a homicide and
    attempted homicide, and could therefore be logically linked to that investigation.
    Moreover, the elaborate measures Mr. Johnson-Lee is alleged to have taken are
    out of proportion to culpability for the admitted assault. In these
    circumstances a no probative value instruction would have been an error.

(2)

The Absence of an Alternative Explanation Instruction

[13]

Mr.
    Johnson-Lee also contends that the trial judge erred by failing to give a
    cautionary instruction to the jury about the danger in not considering
    alternative explanations for the post-offence conduct.

[14]

In
    my view, there was no need in this case for a boiler-plate caution to the jury
    to consider alternative explanations. Mr. Johnson-Lee testified, providing straight-forward,
    specific explanations for his post-offence conduct. The trial judge instructed the
    jury to consider these explanations. At best, a generic instruction to consider
    alternative explanations would have been redundant. At worst, it could be seen
    as an invitation to consider explanations inconsistent with Mr. Johnson-Lees
    testimony, by implication casting doubt on his evidence.

(3)

The Absence of an Instruction to avoid Circular Reasoning

[15]

Mr.
    Johnson-Lee also contends that a cautionary instruction should have been given,
    warning the jury not to use the post-offence conduct to leap to a conclusion of
    guilt. A jury will use post-offence conduct to leap to a conclusion of guilt where
    it examines the post-offence conduct in isolation, infers from it that the
    accused is acting as a guilty person would, and then uses the inference that
    the accused is acting as a guilty person would as proof of guilt. Reasoning in
    this way is circular. The concern is that the inference will drive the
    conclusion before all of the evidence is considered. The trial judge gave no cautionary
    instruction to avoid reasoning in this way.

[16]

Mr.
    Johnson-Lee argues that this error was exacerbated because the trial judge also
    misdirected the jury as in
R. v. Hall
, 2010 ONCA 724, 263 C.C.C. (3d)
    5, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 499, by using
    language that actually invited the prohibited circular reasoning. The trial
    judges words do largely track the impugned passage in
Hall
. Specifically,
    the trial judge said:

If you find that Troy Johnson-Lee fabricated, in other words,
    made up that version with respect to Ashley Owen because he was aware that he
    did what is alleged, you may take that finding into account, along with the
    rest of the evidence, in deciding whether Crown counsel has proven the guilt of
    Troy Johnson-Lee beyond a reasonable doubt.

[17]

The
    concern is that this kind of direction can be read as inviting the jury to
    reason in a circular fashion by using a finding of fabrication to draw an
    inference of consciousness of guilt  in this case that Mr. Johnson-Lee was
    aware that he did what was alleged  and only
then,
    after drawing that inference,
to go on to look at the rest of the
    evidence.

[18]

While
    the jury charge was not optimal, a jury charge must be viewed functionally when
    appealed:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at pp. 320-21. When
    this is done, in my view no reversible error occurred.

[19]

It
    is convenient to begin with my conclusion that despite similarities in language
    between the impugned instruction that was provided in this case and the instruction
    in
Hall
, no
Hall
error occurred here.

[20]

As
    Watt J.A. pointed out in
R. v. Saleh
, 2015 ONCA 23, 319 C.C.C. (3d)
    373, at para. 242, even the impugned passage in
Hall
correctly
    communicates that before the post-offence conduct evidence is relied upon, it
    must support the inference that the accused acted as he did because he was
    conscious of his guilt. In other words, it describes the inference that is a
    prerequisite to using the post-offence conduct evidence as proof of guilt, even
    when considered along with all other evidence. In my view, when the impugned
    passage in this case is considered, in context, that is what the jury would
    take from it. The jury would see it as an instruction about the prerequisite
    inference, not as an invitation to draw that inference before considering other
    evidence.

[21]

First,
    immediately after the impugned passage the trial judge told the jury that if
    they were unable to find that Mr. Johnson-Lee made up the alibi because he was
    aware that he did what is alleged, they were not entitled to use this evidence
    as proof of guilt. When this passage and the impugned passage are taken
    together, clear emphasis is being given to the inference to be drawn, not the
    order in which reasoning should occur.

[22]

In
    addition, this jury was instructed to decide the case after you have considered
    the evidence with your fellow jurors and applied the law. They were told the
    presumption of innocence stays throughout the case and that the Crown had the
    burden of proof [f]rom start to finish, and that they should decide Mr.
    Johnson-Lees guilt at the end of the case, after considering all the
    evidence. They were told to consider  all the evidence presented during the
    trial, that it was their duty to consider all of the evidence, and that it was
    their job  to decide what conclusions you will reach based upon the evidence
    as a whole, both direct and circumstantial.

[23]

In
    this context, when the impugned passage is viewed functionally, the jury would
    not have treated it as an invitation to engage in the prohibited, circular
    reasoning. No
Hall
error occurred.

[24]

Nor,
    was the failure by the trial judge to provide an explicit caution to the jury
    to avoid circular reasoning fatal. As indicated, the charge as a whole
    emphasized the jurys obligation to consider the evidence as a whole before
    inferring guilt.

[25]

Moreover,
    the proper inference available to the jury was simple and obvious, reducing the
    risk that the evidence would be used improperly. The only contested issue in
    the case was identity. The trial judges instruction to consider whether Mr.
    Johnson-Lee fabricated the alibi because he was aware that he did what is alleged
    would have been understood by the jury, in that context, as referring to his identity
    as the assailant. The jury would have understood that they were being invited
    to infer that Mr. Johnson-Lee made up the alibi to hide his involvement.

[26]

Finally,
    defence counsel made no objection to the instruction given. This may well have
    been a tactical decision to avoid inviting attention to the inculpatory
    inferences that the elaborate attempts by Mr. Johnson-Lee to distance himself
    from the investigation invited. I would not give effect to this ground of
    appeal.

(4)

The Failure to Correct the Concocted Alibi Submission

[27]

Mr.
    Johnson-Lee argues that the trial judge erred by failing to correct the Crowns
    improper closing submission that Mr. Johnson-Lee concocted his testimony
    that he was with Ms. Dejonge outside of the bar.

[28]

The
    context is important to this ground of appeal.

[29]

During
    the trial, Mr. Johnson-Lee testified and acknowledged that the Ashley Owen
    alibi that he provided to the police was false. In his testimony he offered a
    new account of how he got to, and ultimately left the bar.

[30]

He
    said that a woman named Latoya, his friend Ryan Daleys girlfriend, drove him
    to the bar in a blue Honda Accord. Mr. Daley and Daniel Allen were also in the
    car. When the bar closed, he exited the bar with this same group, along with Mr.
    Bailey. He, Ms. Dejonge and Mr. Daley turned left and stood on the sidewalk
    about five feet from the door, while Mr. Bailey and Mr. Allen went right.

[31]

Other
    friends joined Mr. Johnson-Lee while Ms. Dejonge remained standing beside him.
    While members of that group were talking amongst themselves, a scuffle broke
    out in the parking lot. The parking lot was next to the sidewalk where Mr. Johnson-Lees
    group was standing.

[32]

Mr.
    Johnson-Lee was watching the parking lot fight. Mr. Bailey was involved, and
    appeared to strike someone in the head with a bottle. Mr. Bailey then ran with other
    young men across the street to the library. At that point, Mr. Johnson-Lee
    decided to follow Mr. Bailey, and began to fight with Mr. Felix. Others joined
    in.

[33]

After
    Mr. Johnson-Lee was distracted from the fight, Mr. Bailey suddenly stabbed Mr.
    Felix and then chased Mr. Felix while brandishing a knife. Mr. Johnson-Lee
    testified that he then ran back to the parking lot and climbed into Ms.
    Dejonges blue Honda Accord and she drove him and several others back home. He
    learned later that Mr. Felix had died.

[34]

When
    Crown counsel cross-examined Mr. Johnson-Lee, she sought further details about
    Mr. Johnson-Lees time with Ms. Dejonge. However, she never challenged Mr.
    Johnson-Lees claim about being with Ms. Dejonge on the night in question.

[35]

Despite
    this, the Crown called Ms. Dejonge as a reply witness. Ms. Dejonge testified
    that she walked to and from the bar that night, did not own or have access to a
    blue Honda Accord, was not Mr. Daleys girlfriend, did not know Mr. Johnson-Lee,
    had not driven him or his friends anywhere, and had not been with Mr.
    Johnson-Lee outside of the bar after it closed.

[36]

During
    her closing address to the jury, Crown counsel placed great significance on Ms.
    Dejonges contradictions of Mr. Johnson-Lees testimony. She said it was proof
    that Mr. Johnson-Lee concocted a false story based on the security camera
    videos, in which Ms. Dejonge could be seen at the bar with Mr. Daley. Crown
    counsel then said with respect to Mr. Johnson-Lees evidence about Ms. Dejonge:
    Mr. Johnson-Lee is providing yet another false alibi like he did when he told
    the police that he was with Ashley Owen at the bar that night.

[37]

Shortly
    after, Crown counsel alluded again to the Ashley Owen lie that he told  to
    cover up for his own crimes. Crown counsel then stated that Mr. Johnson-Lee
    had two years to come up with the testimony he gave, including his testimony
    about Ms. Dejonge. She went on to urge that this was not a minor lie, but a
    significant one:

I mentioned it right at the beginning of this closing, she is
    the new alibi. She is purportedly one of [the] people standing outside of the
    bar chit-chatting for ten minutes while Trevor Hunter is getting killed. Sorry,
    stabbed. While Trevor Hunter is getting stabbed he is there with her. Shes
    more than just a ride to the bar. This is more than just a simple lie, ladies
    and gentlemen. This is a new concocted alibi. Thats what this is.

[38]

Mr.
    Johnson-Lee urges that by referring to Ms. Dejonge as the new concocted alibi
    and by equating Ms. Dejonges contradiction of Mr. Johnson-Lees testimony with
    the false Ashley Owen alibi, Crown counsel was inviting the jury to infer that,
    like he did with the false Ashley Owen alibi, Mr. Johnson-Lee concocted his
    testimony regarding Ms. Dejonge in order to hide his guilt of the offences
    charged. In other words, Crown counsel was asking the jury to use it as proof
    of guilt.

[39]

There
    is no question that although she did not say this overtly, Crown counsels
    comments left the suggestion that Mr. Johnson-Lees testimony regarding Ms. Dejonge
    could be used as proof of his guilt. In my view, it was not so much the use of
    the phrase concocted alibi, as it was her remark that this is more than just
    a simple lie and her comparison of Mr. Johnson-Lees testimony regarding Ms.
    Dejonge to the false Ashley Owen alibi, which was available as proof of guilt.

[40]

Yet,
    Mr. Johnson-Lee contends that the law would not permit his testimony regarding
    Ms. Dejonge to be used as post-offence conduct in this way. He argues that it
    is not appropriate to infer that the accused has concocted a story to hide
    his guilt, unless there is independent evidence of fabrication:
R. v.
    OConnor
(2002), 62 O.R. (3d) 263 (C.A.). He maintains that since there is
    no independent evidence that he fabricated his account about being with Ms.
    Dejonge, the invitation extended by Crown counsel to the jury to use Ms.
    Dejonges contradiction of his testimony as proof of guilt was contrary to law.
    He submits that the trial judge was obliged to instruct the jury that they were
    not to use his testimony regarding Ms. Dejonge as post-offence conduct
    indicative of guilt, and the trial judge erred by failing to do so.

[41]

I
    do not agree that Mr. Johnson-Lees testimony regarding Ms. Dejonge is
    incapable in law of supporting an appropriate post-offence conduct inference. The
    admonition in
OConnor
to refrain from inferring guilt from
    disbelieved evidence absent independent confirmation of fabrication is not a
    technical corroboration requirement. It is a safeguard, calling for independent
    and meaningful support for a finding of concoction before an inference of guilt
    is invited to be drawn from disbelieved exculpatory evidence. In the
    circumstances here, that standard was met.

[42]

First,
    there was a solid foundation linked directly to Mr. Johnson-Lees testimony for
    disbelieving what he was claiming: Ms. Dejonge flatly contradicted Mr.
    Johnson-Lees assertion that he was with her when Mr. Hunters stabbing would
    have occurred. Independent of that, this was also a new exculpatory account by
    Mr. Johnson-Lee about where he was at the time of Mr. Hunters stabbing,
    offered in place of an exposed, prior false alibi about where he was at the
    time of Mr. Hunters stabbing. Finally, by its nature, if Mr. Johnson-Lees testimony
    regarding Ms. Dejonge was a lie, it was an exculpatory lie, entirely capable of
    supporting a logical inference that he told this lie conscious of his guilt in
    order to avoid being implicated in Mr. Hunters stabbing. In my view, these
    features together amount to sufficient independent confirmation that Mr.
    Johnson-Lees testimony regarding Ms. Dejonge was fabricated to avoid guilt. This
    satisfies the
OConnor
principles.

[43]

Of
    course, before inviting an inference of guilt from what it believes to be post-offence
    conduct evidence, the Crown should first pass its intention by the trial judge
    for a ruling that the evidence is admissible for that purpose. This should have
    happened here, but did not. In the absence of such a ruling, Mr. Johnson-Lees
    testimony regarding Ms. Dejonge was not properly available as proof of guilt.  However,
    even though the trial judge failed to directly instruct the jury not to use
    this evidence to draw an inference of guilt, this is not a case where the jury
    was apt to do so.

[44]

It
    is important to recognize that Crown counsel did not expressly invite the
    prohibited inference. The risk at play was that the jury would infer from what
    the Crown said that it could do so. In this context, what the trial judge did
    say was sufficient to remove that risk.

[45]

Specifically,
    when he summarized the position of the Crown, the trial judge stated that the
    Crowns position was that Ms. Dejonges contradiction of Mr. Johnson-Lees
    account meant that [h]is version deserves no weight whatsoever. This is a
    permissible inference about credibility rather than an impermissible inference
    of guilt. In contrast, when the trial judge instructed the jury on the Ashley
    Owen alibi he told them it could be used as post-offence conduct evidence
    supporting an inference of guilt. In my view, the jury would not have missed
    the contrast.

[46]

For
    these reasons, as well as the failure by defence counsel to object to the
    absence of a warning, I would dismiss this ground of appeal.

THE CORRECTIVE INSTRUCTION

[47]

Defence
    counsel argued that Mr. Johnson-Lee was being truthful about Ms. Dejonge and therefore
    suggested that Ms. Dejonge was lying when she claimed that she did not know him.
    To advance this position defence counsel challenged the jury to ask itself how Mr.
    Johnson-Lee could have known that Ms. Dejonges name was Latoya, if he was
    lying and she was telling the truth. Defence counsel had no evidentiary basis
    for suggesting that the only way Mr. Johnson-Lee could have known Ms. Dejonges
    name was through his prior familiarity with her, yet she asked the jury to draw
    that inference.

[48]

Crown
    counsel, aware that Ms. Dejonges name was included in the disclosure provided
    to Mr. Johnson-Lee long before the trial, argued that defence counsel had
    misled the jury by suggesting that Mr. Johnson-Lee had no other way of knowing
    her name than having previously known her. Defence counsel checked and
    confirmed to the court that a statement from Ms. Dejonge was in fact included
    in the disclosure.

[49]

However,
    defence counsel assured the trial judge, from the bar, that neither she nor Mr.
    Johnson-Lee had seen Ms. Dejonges statement in the disclosure material before
    he testified.

[50]

The
    Crown was prepared to accept this as true but argued that the defence
    submission still required correction because it was nonetheless misleading. There
    are other places where Mr. Johnson-Lee could have learned Ms. Dejonges name,
    including at the bar when she was with Mr. Johnson-Lees friend Mr. Daley. Crown
    counsel offered to draw this to the jurys attention in her submissions in
    order to remedy the misleading impression defence counsel had left.

[51]

The
    trial judge nonetheless concluded that, given Ms. Dejonges name was in the
    disclosure, there was a possibility that Mr. Johnson-Lee could have learned her
    name that way. The jury should know this. He decided ultimately that he would
    correct the problem himself. He issued a corrective instruction directing the
    jury that it was an agreed fact that Troy Johnson-Lee has been in the possession
    of Latoya Dejonges statement for more than a year in his disclosure package.

[52]

The
    Crown then made her closing submissions to the jury. She brought up the
    disclosure that had been made, and argued: And thats the other way he could
    have known the name. Make no mistake.

[53]

Mr.
    Johnson-Lee claims that the trial judges corrective instruction was unfair and
    prejudicial, undermining the fairness of the trial and thereby causing a
    miscarriage of justice. He urges that not only did the correction go farther
    than required, it created the misleading impression that Mr. Johnson-Lee had
    personally viewed the disclosure. He argues that this undermined the integrity
    of defence counsel in the eyes of the jury. They could not fail to conclude that
    she had urged them to find that there was no way Mr. Johnson-Lee could have known
    the name Latoya other than through prior familiarity, even though she knew that
    Mr. Johnson-Lee had access to Ms. Dejonges name through disclosure.

[54]

Mr.
    Johnson-Lee argues that the unfairness of the corrective instruction was aggravated
    because the Crown violated the rule in
Browne v. Dunn
(1893), 6 R. 87
    (H.L.) by not confronting Mr. Johnson-Lee with Ms. Dejonges claim that she was
    not with him and did not know him.

[55]

In
    support of the unfairness submission, Mr. Johnson-Lee has also brought an
    application to admit fresh evidence confirming that Mr. Johnson-Lee had not
    learned Ms. Dejonges name from the disclosure. He told his trial lawyer about Ms.
    Dejonge before the disclosure was received.

[56]

Finally,
    Mr. Johnson-Lee argues that it was an error of law for the trial judge to
    invite the jury to infer that Mr. Johnson-Lee tailored his evidence to the
    Crown disclosure.

[57]

It
    is convenient to consider the arguments by first addressing the
Browne v.
    Dunn
submission, the fresh evidence, and the error of law submission. I
    will begin with the latter.

(1)

The Error of Law Submission

[58]

It
    is generally improper for a prosecutor to suggest either during
    cross-examination, or in closing remarks, that the testimony of the accused has
    been scripted using disclosure:
R. v. Bouhsass
(2002), 62 O.R. (3d)
    103 (C.A.), at para. 12;
R. v. Peavoy
(1997), 34 O.R. (3d) 620 (C.A.),
    at p. 625. Permitting this would convert a constitutional right into a trap,
    and raise concerns about the right to silence:
R. v. John
,

2016
    ONCA 615,

133 O.R. (3d) 360,

at paras. 60-61, leave to appeal
    to S.C.C. refused, [2017] S.C.C.A. No. 101.

[59]

However,
    questions relating to disclosure are not always prohibited. In
R. v. White
(1999), 42 O.R. (3d) 760 (C.A.), for example, the manner in which the accused
    testified raised the possibility that the jury would use phone records admitted
    into evidence as confirming his testimony. Cross-examination showing that the
    accused had access to those phone records through disclosure before testifying
    was therefore appropriate. No allegation of tailoring was being made. The
    cross-examination was designed to expose a source of knowledge that had fallen
    into issue.

[60]

Even
    though this case involves submissions and not cross-examination, it is similar.
    Here the disclosure was not mentioned to suggest that Mr. Johnson-Lee tailored
    his evidence to fit the disclosure. It was referred to for the much more benign
    purpose of identifying an alternative source of relevant information for Mr.
    Johnson-Lee. While this purpose, on its own, may not always justify referring
    to disclosure, in this case it was defence counsel who made Mr. Johnson-Lees
    knowledge of the name Latoya an issue. Mr. Johnson-Lee is hardly in a position
    to complain that information he made relevant by the tactics his counsel
    employed was relied upon.

[61]

No
    legal rule was violated in this case.

(2)

The
Browne v. Dunn
Submission

[62]

In
    my view,
Browne v. Dunn
was violated when the Crown failed to confront
    Mr. Johnson-Lee with Ms. Dejonges claims that she was not with him outside of
    the bar, did not drive him there or back, and did not even know him. This violation
    raises concerns about the propriety of the Crown calling Ms. Dejonge as a reply
    witness.

[63]

Yet
    no
Browne v. Dunn
objection was raised by Mr. Johnson-Lees trial
    counsel, and no objection was made to Ms. Dejonge testifying in reply. Mr. Johnson-Lee
    does not now raise these as independent grounds of appeal. He does argue,
    however, that the Crowns failure to confront him in cross-examination with Ms.
    Dejonges claims aggravated the unfairness of the corrective instruction
    because Mr. Johnson-Lee was left with no opportunity to respond.

[64]

In
    my view, the failure to comply with
Browne v. Dunn
had no bearing on
    the corrective instruction. The issue of how Mr. Johnson-Lee could have learned
    Ms. Dejonges name came up for the first time during the closing submissions of
    defence counsel, after Mr. Johnson-Lees cross-examination was completed. There
    is no reasoned basis for believing that, had Mr. Johnson-Lee been confronted
    with Ms. Dejonges claims while he was testifying this would have led Mr.
    Johnson-Lee to explain that he had not learned her name from the disclosure.

(3)

The Fresh Evidence

[65]

The
    fairness of the exercise of a trial judges discretion in providing a
    corrective instruction is to be evaluated based on the information available to
    the trial judge at the time. The fact that it proved to be the case that Mr.
    Johnson-Lee knew Ms. Dejonges name before disclosure was received adds little
    in examining the fairness of the trial judges decision, since that fact was
    not known to the trial judge when he exercised his discretion.

[66]

Moreover,
    it is important not to lose sight of the context when considering the effect of
    this fresh evidence. Defence counsel invited the jury to accept its speculative
    inference that Mr. Johnson-Lees prior familiarity with Ms. Dejonge was the only
    possible source of his knowledge of her first name. The trial judges
    corrective instruction was offered to remove the unfairness of that invitation
    by showing another possible source of information. It was not offered as proof
    of how Mr. Johnson-Lee actually learned her name. Showing now that Mr.
    Johnson-Lee did not actually learn Ms. Dejonges name from the disclosure does
    not change the fact that, at the time of the trial, it was possible that he had
    learned her name from the disclosure.

[67]

In
    my view, the fresh evidence adds little.

(4)

Did the Trial Judges Exercise of Discretion Render the Trial Unfair?

[68]

A
    trial judges discretion to give a corrective instruction is to be given
    deference. In evaluating the choice the trial judge made, it is important to
    bear in mind that, although he was entitled to do so, the trial judge was not bound
    to accept defence counsels assurance from the bar that neither she nor Mr.
    Johnson-Lee had seen the disclosure. As I have already indicated, on the
    information before the trial judge, defence counsel had challenged the jury
    with the speculative suggestion that the only way Mr. Johnson-Lee could have
    known Ms. Dejonges name was prior familiarity, when the Crown had in fact furnished
    Mr. Johnson-Lee, through his lawyer, with disclosure that contained Ms. Dejonges
    name.

[69]

In
    my view, however, the trial judge should not have used the possibility that Mr.
    Johnson-Lee had learned Ms. Dejonges name from disclosure to neutralize
    defence counsels invitation to the jury to speculate. Doing so created the
    risk that the credibility of defence counsel would be damaged in the eyes of
    the jury. I agree with Mr. Johnson-Lee on this point. The jurors might well have
    concluded that they were being manipulated through defence counsels suggestion
    that Mr. Johnson-Lee could only have learned Ms. Dejonges name from prior
    familiarity, even though defence counsel knew full-well that he could have
    obtained the name from disclosure. The trial judge did not have to engage this
    risk. He could simply have told the jury to disregard the defence submission
    because it was not grounded in evidence. Or he could have left it to the Crown
    to point out the common sense possibility that Mr. Johnson-Lee learned Ms.
    Dejonges name while at the bar.

[70]

I
    also agree that the wording of the corrective instruction went beyond what was
    agreed. Defence counsel admitted Ms. Dejonges name was in the disclosure. She
    did not admit that Mr. Johnson-Lee had seen that disclosure. Indeed, she denied
    he had, and there was no proof that he had. Yet the wording of the corrective
    instruction was apt to suggest to the jury that Mr. Johnson-Lee had personally seen
    this material. This impression would have been made worse by Crown counsels
    submission, when inviting the jury to consider disclosure as a possible source
    of his knowledge, that they should [m]ake no mistake.

[71]

For
    those reasons, the exercise of the trial judges discretion was unfortunate.
    The material question, however, is whether it rendered the trial unfair. If an
    error deprives the accused of a fair trial, it constitutes a miscarriage of
    justice within the meaning of s. 686(1)(
a
)(iii) and a reversible
    error will have occurred
: R. v. Arradi,

2003
    SCC 23, [2003] 1 S.C.R. 280,
at para. 39.

[72]

A
    court of appeal should carefully weigh the whole of the circumstances of the
    case in determining whether the trial has been rendered unfair:
R. v. Khan,

2001

SCC

86,
[
2001
] 3 S.C.R. 823, at para. 72. However, the trial cannot be
    held to a standard of perfection, provided it remains fair in reality and in
    appearance:
Khan
, at para. 72.

[73]

There
    is no limit on the particular type of error that will constitute a miscarriage
    of justice:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541;
Khan,
at para. 74
.
    An error or misconduct that could well have affected the jurys assessment of
    guilt or innocence will suffice:
Reference re Milgaard (Can.)
,
    [1992] 1 S.C.R. 866, at p. 873. So, too, will conduct that is so egregious so
    as to bring the administration of justice into disrepute or to lead reasonable
    people to believe that the appearance of justice ha[s] been undermined:
R.
    v. Spiers
,
2012 ONCA 798
, 113 O.R. (3d) 1, at
    para. 27. These are the relevant fair trial inquiries for consideration in this
    case. Applying those considerations, no miscarriage of justice can be found.

[74]

First,
    it is clear, in my view, that this episode would have had no impact on the jury
    verdict reached. Even though this was an identification evidence case
    prosecuted in the absence of line-up identifications, the case against Mr.
    Johnson-Lee was formidable. Credible and reliable eyewitnesses to the stabbings
    offered discerning descriptions of the stabber of each victim that fit only Mr.
    Johnson-Lee amongst all of the people in the bar where the confrontation began.
    Any points of distinction were negligible. There was evidence that Mr.
    Johnson-Lee had been involved in that earlier confrontation, and, prior to the
    stabbings, had expressed regret that he had not broken a bottle over the head
    of one of the members of the victims group. He had Mr. Felixs blood on his
    pants and the forensic examination of the knife, while not supporting the Crowns
    case, could not rule out the Crowns theory. Mr. Johnson-Lees credibility did
    not bear up to the evidence in the case, and he concocted the Ashley Owen alibi
    for both stabbings. There was evidence that he concocted a lie about his
    appearance and actively attempted to mislead the police about the shirt he was
    wearing. In this context, there is no realistic possibility that the outcome of
    this case turned on the jurys belief that Mr. Johnson-Lee learned the name
    Latoya from disclosure. Nor is there any basis for believing that his
    conviction could be related to distrust of defence counsels submissions that may
    have been caused by the corrective instruction. Beyond any peradventure, Mr.
    Johnson-Lee was convicted because of the legitimate force of the evidence.

[75]

Nor
    was the conduct of the trial judge sufficiently egregious, or its consequences
    to Mr. Johnson-Lee sufficiently prejudicial, to bring the administration of
    justice into disrepute or to undermine the appearance of justice. The trial
    judge made an unfortunate judgment call late in the trial in response to an
    unfortunate tactical choice made by defence counsel, in an otherwise fairly
    conducted trial. And while the trial judges choice had the undesirable effect
    of discrediting defence counsel, this was an isolated incident brought about in
    an attempt to correct counsels own indiscretion, and its effect was tempered
    by the appearance that she had joined in making the correction.

[76]

In
    my view, the trial was not rendered unfair by the unfortunate corrective instruction,
    and there was no miscarriage of justice.

CONCLUSION

[77]

I
    would dismiss the appeal.

Released: December 11, 2018 (J.C.M.)

David M. Paciocco J.A.

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

I agree. B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jones, 2018 ONCA 1032

DATE: 20181213

DOCKET: C62506

Hoy A.C.J.O., Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Jones

Appellant

R. Craig Bottomley and Mayleah Quenneville, for the
    appellant

Jennifer Epstein, for the respondent

Heard and released orally: December 4, 2018

On appeal from the conviction entered on October 29, 2015
    and the sentence imposed on October 29, 2015 by Justice Paul H. Reinhardt of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant, who was self-represented throughout the proceedings
    below, pled guilty to one count of fraud under $5,000. Before he volunteered
    that he wished to plead guilty, he had spoken to two duty counsel and discussed
    his situation with his father.

[2]

The appellant admitted that he had attended at the Ontario Ministry of
    Transportation and obtained a false drivers licence under the name Roy Page.
    That licence was presented to police after two separate car crashes, both of
    which led to Roy Page being charged with careless driving. While the
    appellant admitted that he had obtained the Roy Page drivers licence, he
    denied that he was the driver in the two car crashes.

[3]

The appellant now appeals his conviction and seeks leave to appeal his sentence.
    He argues:

1.

the trial judge erred by accepting his guilty plea, as it was not
    informed;

2.

the trial judge erred in entering a conviction for fraud under $5,000,
    as the facts admitted in the guilty plea proceedings did not establish any
    risk of loss or deprivation, which is a necessary element of the offence;

3.

the trial judge provided inadequate assistance to the appellant as a
    self-represented litigant, in relation to his decision to plead guilty;

4.

the trial judge erred in imposing a suspended sentence and in not
    granting the appellant a conditional discharge; and

5.

the trial judges reasons on sentencing were insufficient.

[4]

We reject these arguments.

[5]

The trial judge ensured the plea was informed. The trial judge explained
    the plea process to the appellant; ensured the appellant understood he would be
    giving up a bundle of rights; and ensured the appellant understood that the
    trial judge could disagree with the Crowns and the appellants respective
    submissions on sentencing and impose his own sentence. The appellant indicated
    that he understood.

[6]

Contrary to the appellants submission, the risk of loss or deprivation
    element of the offence of fraud under $5,000 is made out in these
    circumstances. It is clear that there is a monetary cost to the Ministry in producing
    and issuing a drivers licence.

[7]

We are also satisfied that the trial judge provided reasonable
    assistance to the appellant. Once the appellant indicated that he wished to
    plead guilty, the trial judge explained the fraud charge in plain language,
    reminded the appellant that if he went to trial he would have the opportunity
    to speak to a lawyer and call a witness another day, and allowed the appellants
    father to ask questions on his behalf. Moreover, on appeal, the appellant does
    not indicate how the alleged lack of assistance rendered the proceedings
    unfair.

[8]

Finally, viewed in the context of the sentencing submissions, it is
    clear that even though the trial judge accepted that the evidence led on
    sentencing did not establish that the appellant was the driver in the two car
    crashes, the fact that the fraudulently obtained licence was subsequently used
    in two instances requiring police involvement was a central factor in the trial
    judges decision not to grant a conditional discharge. The appellants last
    minute guilty plea, on the third scheduled trial date, and the impact that a
    criminal record would have on the appellant, did not outweigh this central
    factor.

[9]

Given the importance of maintaining the integrity of the public
    licencing system, the trial judges decision to impose a suspended sentence is
    entitled to deference. We are not persuaded that there is any basis to
    interfere.

[10]

Accordingly,
    the appeal is dismissed and leave to appeal sentence is granted, but the appeal
    from sentence is dismissed.

Alexandra Hoy
    A.C.J.O.

K. Feldman J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lee, 2018 ONCA 1067

DATE: 20181221

DOCKET: C62473

Juriansz, Benotto and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Junior Lee

Appellant

Jeffery Couse, for the appellant

Marie Comiskey, for the respondent

Heard: December 17, 2018

On appeal from the conviction entered on April 7, 2015 by
    Justice John R. McCarthy of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking under s. 5(2) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. His girlfriend Bailey McKanick was also found guilty.

[2]

The police obtained information from three confidential informants that
    the appellant and McKanick were trafficking cocaine from the appellants car in
    the Barrie area. The police conducted surveillance to corroborate these tips.
    In particular, the police orchestrated an undercover purchase of cocaine from
    the appellant using specific bank notes, the serial numbers of which they
    recorded.

[3]

On October 23, 2012, at about 11:15 p.m., the police stopped the car
    that the appellant was driving, with McKanick as a passenger. The police boxed
    the appellants car in. He was forcefully extracted from the car. Some blows
    were used to subdue the appellant and to facilitate his arrest.

[4]

A search of the appellant at roadside found 4.3 grams of marijuana in
    his sock. The police also looked down the back of the appellants pants to
    determine whether he had a weapon. He did not. At the police station, strip
    searches were authorized for both the appellant and McKanick. During the strip
    search of the appellant, he was naked for approximately one minute. Nothing was
    found. McKanick remained completely naked for about five minutes. The search
    yielded an ounce of cocaine, which had been secreted in her vagina.

[5]

The police obtained a warrant to search the appellants apartment in
    Toronto at 88 Park Lawn Road, Apartment #1611 (Park Lawn). The police
    discovered 700 grams of powder cocaine, 700 grams of crack cocaine, and $1,200
    in Canadian currency, including the three bills used during the undercover
    purchase.

[6]

At trial, the appellant brought applications under ss. 7, 8, 9, 10(a)
    and 12 of the
Charter
as a result of the police conduct during the
    take down and his strip search at the police station. The trial judge found
    that none of the appellants rights had been violated. The trial judge found
    that the strip search of McKanick violated her s. 8 rights of the
Charter
but declined to exclude the evidence under s. 24(2): see
R. v. McKanick
,
    2015 ONSC 2128.

[7]

Although the appellant challenges all of the trial judges findings on
    the
Charter

application, he focused his submissions on the
    validity of the search of his apartment. He argues that the Information to
    Obtain (ITO) contained insufficient grounds to authorize the search of his
    apartment. He submits that the issuing justice essentially acted on the
    assumption that, because the appellant was a drug dealer, the police were
    entitled to search his apartment. The appellant also argues that the trial
    judge should have excised from the ITO any reference to the cocaine found secreted
    on Ms. McKanicks person following her illegal strip search.

[8]

On appeal, the respondent argued that, even when reference to the fruits
    of the McKanick search is excised from the ITO, there was still a sufficient
    basis to authorize the warrant.

[9]

Despite Mr. Couses helpful submissions, we are satisfied that, even
    with the McKanick search excised, there was a sufficient basis to obtain the
    warrant to search Park Lawn.

[10]

On
    the night of the takedown, the appellant and Ms. McKanick were observed in the
    appellants car in the Barrie area. The police observed three drug transactions.
    After the final transaction, the car was driven back to Park Lawn. Using a key
    fob, the appellant drove into the underground parking lot. He emerged hours
    later, having changed his clothes. After searching Ministry of Transportation
    databases, the police learned that Park Lawn was the appellants mailing
    address. The police subsequently confirmed with building management that the
    appellant lived in Unit 1611.

[11]

Mr.
    Couse argues that there was no reasonable basis for the issuing justice to be
    satisfied that the cocaine discovered on Ms. McKanick originated from the
    apartment. However, the police were searching for more than just the cocaine.
    The ITO specified the following items: Cocaine, Packaging, Currency including
    and not limited to Canadian $20 bills bearing [3 serial numbers], Debt List,
    Scales and Telecommunication Devices. In short, the police wished to search
    for evidence of the appellants drug trafficking activities.

[12]

In
    our view, there was a sufficient basis to authorize this search, even though
    the ITO did not contain an opinion from the affiant about the typical behaviour
    of alleged drug dealers, in terms of where they keep their money, supplies, and
    tools of the trade. Significantly, the fact that the appellant returned to his
    home after conducting three drug transactions and then went out again,
    differently attired, tied his drug trafficking activities to Park Lawn.

[13]

We
    would dismiss this ground of appeal.

[14]

The
    appellant also argues that the combined breaches of the other rights asserted
    by the appellant warranted a stay of proceedings under s. 24(1) of the
Charter
.
    In making this argument, Mr. Couse acknowledges the high threshold that must be
    met to obtain this remedy.

[15]

We
    are not persuaded that the trial judge erred in his findings of fact, nor in
    his overall assessment of this evidence. The search of the appellant at
    roadside was fleeting and benign. His strip search at the police station was
    not perfect, in terms of its compliance with the guidelines set out in
R.
    v. Golden
, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101. He should not
    have been left completely naked at all. However, in the circumstances of this
    case, it was a minor deviation. Moreover, we see no inconsistency between this
    finding and the trial judges finding that McKanicks search amounted to a
    violation of s. 8. There was compelling evidence that Ms. McKanick was very distressed
    by the circumstances of her strip search. She was left naked for much longer
    than the appellant. Focusing on the time that it took, the trial judge did not
    err in finding that it was not a minor deviation from the
Golden

guidelines.

[16]

Lastly,
    the appellant argues that the trial judge erred in failing to find that the
    conduct of the police in effecting the take down infringed his
Charter

rights. He claims that the approach of the police was heavy-handed in the
    extreme and that the police were unnecessarily rough with him upon arrest. The
    trial judge made specific findings of fact on each aspect of this claim. He did
    so without the benefit of any evidence from the appellant. The appellant has
    failed to demonstrate why these findings should be disturbed on appeal.

[17]

The
    appeal is dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ledinek, 2018 ONCA 1017

DATE: 20181211

DOCKET: C65369

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gaddiel Ledinek

Appellant

Eva Tache-Green, for the appellant

Caitlin Sharawy, for the respondent

Heard: December 5, 2018

On appeal from the sentence imposed by Justice Michael
    Penny of the Superior Court of Justice on February 23, 2018.

REASONS FOR DECISION

[1]

The appellant was sentenced to 45 months for
    possession of a loaded prohibited firearm, and 12 months consecutive for breach
    of the order prohibiting him from possession of a firearm, before credit for
    presentence custody. The appellant submits that the sentencing judge erred by
    disregarding the principles of totality and parity, engaged in double counting,
    ignored relevant mitigating factors and misapprehended important evidence. He
    submits that the sentence imposed was unfit and must be varied on appeal by
    reducing the sentence by six months.

[2]

We do not agree.

[3]

In May 2016, the appellant was in possession of
    a loaded, semi-automatic handgun in the backseat of a vehicle travelling north
    on highway 400. There were four other people in the car.

[4]

He had previous convictions for similar
    offences, and was subject to a prohibition order made in September 2012 barring
    him from possession of any firearm or ammunition. In September 2012 he was
    convicted of the following offences:

1.

Commission of an offence for a criminal
    organization

2.

Possession of a Schedule I substance for the
    purpose of trafficking

3.

Two counts of possession of a firearm

4.

Aggravated assault

5.

Robbery (3 charges)

6.

Possession of a firearm contrary to a
    prohibition order

7.

Failure to comply with an undertaking (3
    charges)

[5]

The appellant was 20 years old at the time of
    the offences that are the subject of this sentence appeal. He pleaded guilty in
    Superior Court on the eve of the trial.

[6]

The Crown took the position that an appropriate
    sentence would be four years for possession followed by one year consecutive
    for breach of the firearm prohibition. The defence submitted that three years
    for possession followed by six months for the breach of the prohibition order
    would be appropriate.

[7]

The appellant alleges that the trial judge erred
    by treating the breach of the prohibition order as an aggravating factor on the
    sentence for possession of the firearm and by imposing a consecutive sentence
    for the breach of the prohibition order. We do not agree. The appellants
    breach of the prohibition order was inescapably part of the narrative of events
    leading to the appellants convictions. The sentencing judge expressly
    cautioned himself that where consecutive sentences are imposed, the combined sentence
    should not be unduly long or harsh.

[8]

The global sentence imposed was well within the
    range of sentences imposed for similar offenders, guilty of similar offences.

[9]

The appellant also submits that the trial judge
    erred by failing to consider two certificates he had earned while in
    presentence custody. The first was for completing a ten-hour anti-criminal
    thinking workshop, and the second for a ten-hour cognitive skills workshop. The
    trial judge did not mention these in his sentencing decision and was not
    obliged to. No submissions were made about the significance of the certificates.
    The sentencing judge did consider the appellants prospects for rehabilitation,
    and was aware of the certificates. These would have not had any impact on the
    ultimate sentence imposed, given the limited information about them.

[10]

Finally the appellant submits that the trial
    judge erred by failing to give him enhanced credit to reflect the conditions of
    pretrial custody. The sentencing judge credited the appellant with 31 months
    and 20 days pretrial custody, amounting to 1.5 times the actual pretrial
    custody of 21 months and three days. The defence proposed a further three-month
    credit arguing that the conditions of presentence custody were unusually harsh.

[11]

The sentencing judge rejected this request at
    paras. 30-33 of his reasons,

The lockdown
    records from both Maplehurst and TEDC are not remotely comparable to the
    lockdown records before the court in cases relied on by the defence such as
R.
    v. Nsiah
, 2017 ONSC 769,
R. v. Holman
, 2017 ONCJ 727 and
R. v. Bedward
,
    2016 ONSC 939. Full lockdowns, where services are suspended, were relatively
    few during the period of Mr. Ledineks pre-sentence custody at both
    institutions. At TEDC, services are, in any event, provided during many lockdowns,
    albeit on a more restricted protocol.

Mr. Ledinek also
    complains of inadequate medical treatment during his pre-sentence custody. The
    records, however, do not seem to bear that out. There is no documentary
    evidence of serious delays in receiving care but there is evidence that, on
    several occasions, Mr. Ledinek declined to attend appointments that had been
    scheduled for him. Unlike the case of
R. v. Ohamu
, 2017 ONCJ 10, there is no evidence of a pre-existing, serious
    mental health issue. The health records indicate Mr. Ledineks issues are
    associated primarily with the fact of his incarceration.

While the triple
    bunking at TEDC is a concern, it is mitigated somewhat by evidence that Mr.
    Ledinek declined to move to a double bunk situation. While he no doubt had his
    reasons, the evidence is there was an option offered.

I am unable to conclude that Mr. Ledineks
    circumstances rise to the level of harshness required to warrant
additional
credit for pre-sentence custody.

[12]

In
R. v. Duncan
,
    2016 ONCA 754, at para. 6, this court held that particularly harsh presentence
    incarceration conditions can provide mitigation apart from and beyond the 1.5
    credit referred to in s. 719(3.1) and that sentencing courts should consider
    both the conditions of the presentence incarceration and the impact of those
    conditions on the accused.

[13]

A courts decision as to the credit, if any, to
    be granted to account for harsh presentence custodial conditions is a
    discretionary one to which deference is owed. Here the sentencing judge considered
    both the conditions and their impact on the appellant. We are not persuaded
    that there is any basis to intervene.

[14]

The sentence imposed was fit.

[15]

Accordingly, the appeal is dismissed.

C.W. Hourigan J.A.

G. Pardu J.A.

Harvison Young J.A.