COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Green, 2015 ONCA 579

DATE: 20150824

DOCKET:
C54449

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

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Green

Appellant

Jonathan Dawe and Michael Dineen, for the appellant

Susan Magotiaux, for the respondent

Heard:  May 19, 2015

On appeal from the convictions entered by Justice Thomas
    A. Bielby of the Superior Court of Justice, sitting without a jury, on
    September 20, 2010.

Doherty J.A.:

I

[1]

The appellant was convicted of various firearms offences and possession
    of marihuana.  The charges arose out of the execution of a search warrant at
    the appellants residence in Brampton, Ontario.  The police found and seized approximately
    200 grams of marihuana from a bureau in the dining room and a loaded
    semi-automatic pistol hidden in the fireplace in the living room.

[2]

On a pretrial motion, the appellant unsuccessfully moved to exclude the
    marihuana and gun from evidence pursuant to s. 24(2) of the
Charter
.
    The trial proceeded on an Agreed Statement of Facts in which the appellant
    admitted possession of the guns and the drugs.  The trial judge convicted on
    all charges.  Some of the firearm-related convictions were stayed.

[3]

The appellant appeals from his convictions.  He renews his claim that
    the search of his residence was unconstitutional and that the evidence should
    have been excluded under s. 24(2).  He advances two grounds of appeal:

·

The information to obtain the search warrant (ITO) as redacted
    did not provide a basis upon which a justice could conclude that there were
    reasonable and probable grounds to believe there was a gun in the residence;
    and

·

The trial judge erred in refusing to permit cross-examination of
    the ITO affiant in support of the appellants contention that the warrant
    should not have been granted.

[4]

I would dismiss the appeal for the reasons that follow.

II

the challenge to the search warrant at trial

[5]

The search warrant was granted largely on the basis of information
    provided to the police by a confidential informant.  Without that information,
    a warrant could not have been granted.

[6]

Appendix B of the ITO made extensive reference to information provided
    by the confidential informant to Constable Sills, who had in turn passed that
    information on to Constable Adams, the affiant of the ITO.  The ITO also
    contained an Appendix C, setting out all information that may compromise the
    informants confidentiality.

[7]

At trial, the Crown relied on an edited version of the ITO.  Appendix
    B contained many redactions and Appendix C was entirely removed.  The
    redactions and the removal of Appendix C were justified as necessary to protect
    the identity of the confidential informant.

[8]

The appellant alleged at trial that the search warrant should not have
    been granted and that the subsequent search of his residence and seizure of the
    gun and drugs contravened his rights under s. 8 of the
Charter
.  The
    appellant claimed that the evidence should be excluded under s. 24(2).

[9]

Counsel for the appellant brought a motion seeking disclosure of the confidential
    informants police file in support of the s. 8 motion.  Counsel argued that
    given the centrality of the information provided by the confidential informant
    to the granting of the warrant, the right to full answer and defence required
    that the defence be given information about the confidential informants
    history with the police to the extent possible without disclosing the confidential
    informants identity. Counsel did not suggest that the appellant was entitled
    to any information that might identify the confidential informant.  Counsel
    invited the trial judge to examine and edit the police file to protect the confidential
    informants identity.  The Crown argued that disclosure of any of the contents
    of the file risked exposing the identity of the confidential informant.

[10]

The
    trial judge concluded that the innocence at stake exception to the informer privilege
    was not engaged and that it would be virtually impossible for him to edit the
    contents of the file in a way that would ensure the protection of the confidential
    informants identity.  The trial judge declined to examine the file or to order
    any part of the file produced to the defence: 2010 ONSC 2907, [2010] O.J. No.
    6237. This ruling is not appealed.

[11]

The
    appellant next sought to cross-examine the affiant of the ITO.  Counsel
    identified specific areas of the affidavit on which she sought to cross-examine
    the affiant.  The trial judge refused to allow cross-examination: [2010] O.J.
    No. 6238.  This ruling is challenged on appeal.

[12]

The
    appellant ultimately argued that the redacted version of the ITO could not, on
    its face, provide a basis upon which a justice could be satisfied that there
    were reasonable and probable grounds to issue the warrant.  Counsel advanced
    several specific arguments in support of this contention.  The trial judge
    rejected those arguments. This ruling is challenged on appeal.

III

the grounds of appeal

[13]

The
    ruling refusing cross-examination of the affiant came before the ruling that
    the redacted ITO provided a basis upon which the warrant could issue.  I will,
    however, address the two grounds of appeal in the order in which counsel
    advanced them.

A.

Did the redacted ITO provide a basis upon which a warrant could
    issue?

[14]

The
    trial judge concluded that the redacted ITO contained sufficiently credible and
    reliable evidence to justify a finding that there were reasonable and probable
    grounds to believe that there was a handgun in the appellants residence.  He
    said, at para. 71:

While the ITO could have been better drafted and contained
    further or more precise information, I have concluded that even the redacted
    ITO provides sufficient information to justify the authorization of the
    warrant.

[15]

R.
    v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168, instructs that when
    information relied on comes from a confidential informant, the court, in
    considering the adequacy of the information, must have regard to:

·

Information relevant to the credibility or reliability of the confidential
    informant;

·

The degree to which the information is compelling or cogent; and

·

The degree to which the confidential informants information is
    confirmed or supported in material matters by credible independent information.

These factors do not each form a separate test; rather,
    the reliability of the confidential informants information is assessed by
    looking at the totality of the circumstances.

[16]

The
    trial judge applied these principles.  He concluded that while the ITO provided
    little information that could enhance the credibility of the confidential
    informant, the confidential informants information was compelling principally
    because it was based on firsthand observations.  Finally, the trial judge held
    that the confidential informants information was confirmed in significant ways
    by information provided from independent sources.

[17]

The
    appellant contends that the trial judge erred in finding that the confidential
    informants information was compelling.  He submits that the trial judge went
    beyond the information provided in the redacted ITO by holding that the confidential
    informants assertion that the appellant had a semi-automatic handgun in his
    residence was based on firsthand observation and not merely rumour, hearsay or
    gossip.  He further argues that even if the trial judge could find that the
    information was based on the confidential informants observations, there was
    no evidence about the currency of those observations, and therefore no
    reasonable and probable grounds to believe that there was a handgun in the
    appellants residence at the time of the search warrant application.  Lastly,
    the appellant submits that the trial judge wrongly held that certain
    information was potentially confirmatory, and overstated the confirmatory value
    of other information.

[18]

In
    considering the appellants submissions, the ITO must be read as a whole in a
    common sense manner and having regard to its author.  Police officers are not
    wordsmiths and the ITO is not to be parsed as though produced by a meticulous
    solicitor: see e.g.
R. v. Chan
, [1998] O.J. No. 4536 (C.A.), at para.
    4.  No doubt, this ITO, like most, could have been more felicitously drawn and
    organized.  Those failings do not, however, mean that the ITO as redacted did
    not provide sufficient grounds for the issuance of the warrant.  I address each
    of the appellants three complaints bearing in mind the need to read the
    document as a whole in a common sense manner.

(i)

Did the trial judge err in reading the ITO as including the claim that
    the confidential informant had seen the appellant in possession of the handgun?

[19]

Paragraph 1 of Appendix B of the redacted ITO under the heading
    Investigation refers to a conversation between Constable Sills and the
    affiant of the ITO.  The affiant sets out several pieces of information which
    he says he learned as a result of that conversation.  The information includes
    the assertion that Marvin [i.e. the appellant] was in possession of a semi automatic
    pistol.  Viewed in isolation, para. 1 does not indicate the source of
    Constable Sillss information, and assuming that information came from the confidential
    informant, para. 1 does not indicate the source of the confidential informants
    information.  On its own, para. 1 could not justify the conclusion that the confidential
    informant had seen the appellant in possession of a handgun.

[20]

Paragraph
    1 does not, however, stand alone.  Under the heading Reasonable grounds to
    believe the offence has been committed, the affiant states:

On January 11
th
, 2008, I spoke to Constable SILLS #2830
    who received information from a confidential informant indicating that a male
    named Marvin, who was later identified as Michael GREEN  October 10
th
,
    1957, was in possession of a semi automatic handgun at his residence located at
    189 Queen Street East in the City of Brampton.  The C/I has knowledge that
    Michael GREEN hosts after hours parties on the weekend and the C/I has been in
    attendance [redacted] in the past.

The C.I. indicated that the after hours parties have attracted
    people who are sometimes armed with firearms.  As such, the suspect [the
    appellant] has acquired a gun [redacted].

Within the last [redacted] Michael GREEN was observed to be in
    possession of a semi-automatic handgun within the residence of 189 Queen Street
    East in the City of Brampton.

[21]

Later
    in the ITO under the heading Grounds to believe that the items to be seized
    are at the place to be searched, the affiant asserts:

The C/I has provided police with information about a male named
    Michael GREEN.

The C/I has [redacted] seen Michael GREEN in possession of a
    semi-automatic handgun.

Michael GREEN hosts after hours parties on the weekends, at
    his residence, which have attracted people armed with firearms, as well as
    street gang members from Brampton, Mississauga and Toronto.  Michael GREEN has
    acquired a gun according to the C/I. [redacted].

He stores the handgun within his residence [redacted].

[22]

Under
    the heading Conclusion, the affiant alleges:

The C/I provided Constable Jeromie SILLS #2830 information
    pertaining to a male party by the name of Michael GREEN.  GREEN organizes an
    after hours party at his residence and has [redacted] acquired a gun.

The C/I was able to identify [redacted] the firearm.  The C/I
    was able to refer to the firearm as a semi automatic pistol.

The C/I was able to identify the [redacted].  This information
    goes beyond mere suspicion that the suspect is in possession of a gun.

The C/I was able to state to Constable SILLS #2830 that
    [redacted] has seen the gun within the last [redacted] within the residence at
    189 Queen Street East, Brampton.  The information is believed to be both
    current and accurate.

[23]

Reading
    the ITO as a whole, it was reasonably open to the interpretation that Constable
    Sills told the affiant on January 11, 2008 that the confidential informant had
    told him that he had seen the person who resided at 189 Queen Street East in
    Brampton in possession of a semi-automatic handgun while both were in the
    residence.  It was equally open to the interpretation that Constable Sills told
    the affiant that the confidential informant had explained that the individual
    had the handgun for personal protection because some of the people who attended
    his after-hours parties carried and used firearms while in his home.  I do not
    think the trial judge speculated about material that had been redacted from the
    ITO.  He simply read the redacted ITO as a whole.

(ii)

Did the trial judge err in failing to hold that the information provided
    by the confidential informant did not provide reasonable grounds to believe
    that there was a handgun in the appellants residence when the police applied
    for a search warrant?

[24]

There
    is no direct evidence in the redacted ITO as to when the confidential informant
    saw the handgun in the appellants possession.  However, the information
    provided by the confidential informant indicated that the appellant had the gun
    for protection from those who brought guns to his parties.  This was accompanied
    by information in the ITO from the Peel Regional Police Service databank that revealed
    there had been several past incidents at parties at the appellants residence
    in which guns had been produced and used by attendees.  In at least one
    incident, attendees had threatened the appellant with guns.  One gun-related
    incident had occurred only a week before the application for the search
    warrant.

[25]

It
    was open to the trial judge to conclude that the issuing justice could
    reasonably infer from the information in the ITO that the appellant had a gun
    in his residence for protection against persons who attended his parties while
    armed.  The trial judge could further conclude that the issuing justice could
    reasonably find that as the appellant continued to host the same kinds of
    parties, his perceived need to keep a gun in his residence for protection
    continued as of the time of the search warrant application: see
R. v.
    Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81-84.

(iii)

Did
    the trial judge err in concluding that the information provided by the confidential
    informant was confirmed by independent information?

[26]

The
    trial judge dealt with the extent to which the confidential informants
    information was confirmed or corroborated at some length.  The appellant is
    correct in his assertion that the trial judge erred in characterizing the
    information that the appellant did not have a licence for any handgun as
    confirmatory of the confidential informants information.  This error was,
    however, minor when placed beside the substantial body of information that was
    confirmatory of the confidential informants information.

[27]

The
    confidential informant described the person who was in possession of the
    handgun as residing at 189 Queen Street East, Brampton, with his girlfriend.
    The appellant resided at that address with his girlfriend.  The appellant
    described the person as going by the names Marvin and Nervous.  Information
    in the ITO independent of the confidential informant confirmed that the
    appellant used the street name Nervous.

[28]

More
    importantly, evidence independent of the confidential informant confirmed the confidential
    informants information that the appellant operated after-hours parties at 189
    Queen Street East in Brampton, and that some attendees at those parties brought
    guns and used those guns to threaten others  including the appellant.  This
    independent information was capable of confirming the confidential informants
    information that he had attended those parties and seen the appellant with a
    gun he kept to protect himself against those who came to the parties armed.

[29]

There
    was no independent evidence directly putting a gun in the possession of the
    appellant.  However, confirmatory evidence need not go that far:
R. v.
    Caissey
, 2008 SCC 65, [2008] 3 S.C.R. 451, affg 2007 ABCA 380, 227 C.C.C.
    (3d) 322, at para. 25.  The entirety of the evidence referred to in the ITO
    independent of the confidential informant offered confirmation of the confidential
    informants information that the appellant had a gun to protect himself from
    armed and dangerous people who attended his after-hours parties.

[30]

I
    would not interfere with the trial judges holding that the redacted ITO
    provided a basis upon which the search warrant could issue.

B.

Did the trial judge err in refusing leave to cross-examine the
    ITO affiant?

[31]

An
    accused who seeks to cross-examine the affiant of an ITO in aid of a motion to
    exclude evidence obtained as a result of the execution of a search warrant must
    obtain leave from the trial judge.  In deciding whether to grant leave, the
    trial judge will have regard to various competing interests, including the
    accuseds right to make full answer and defence, the Crown and the courts obligation
    to protect the identity of confidential informants, and the courts obligation
    to make effective use of limited judicial resources by avoiding unnecessary and
    time-consuming proceedings.  In
R. v. Garofoli
, [1990] 2 S.C.R. 1421,
    at p. 1465, Sopinka J. articulated an approach which balanced those competing
    interests.  He held that cross-examination of the affiant should be allowed
    where:

[T]he trial judge is satisfied that the cross-examination is
    necessary to enable the accused to make full answer and defence.
A basis must be shown
    by the accused for the view that the cross-examination will elicit testimony
    tending to discredit the existence of one of the preconditions to the
    authorization, as for example the existence of reasonable and probable grounds.
[Emphasis added.]

[32]

In
R. v. Pires
;
R. v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343,
    the Court confirmed the
Garofoli
approach in the context of a
Charter
challenge.  Charron J. emphasized the relatively narrow focus of the
Garofoli
inquiry, at para. 40:

[T]he
Garofoli
leave requirement is simply a means of
    weeding out unnecessary proceedings on the basis that they are unlikely to
    assist in the determination of the relevant issues.  The reason that the test
    will generally leave just a narrow window for cross-examination is not because
    the test is onerous  it is because there is just a narrow basis upon which an
    authorization can be set aside. Hence, in
determining whether cross-examination should be
    permitted, counsel and the reviewing judge must remain strictly focussed on the
    question to be determined on a Garofoli review  whether there is a basis upon
    which the authorizing judge could grant the order
.
If the proposed
    cross-examination is not likely to assist in the determination of this
    question, it should not be permitted
.
However, if the
    proposed cross-examination falls within the narrow confines of this review, it
    is not necessary for the defence to go further and demonstrate that the
    cross-examination will be successful in discrediting one or more of the
    statutory preconditions for the authorization.  Such a strict standard was
    rejected in
Garofoli
.  A reasonable likelihood that it will assist the
    court to determine a material issue is all that must be shown. [Emphasis
    added.]

[33]

Garofoli
and
Pires
were wiretap cases.  However, the same approach is apposite
    when search warrants are challenged:  see
Sadikov,
at paras. 39-41;
R.
    v. Greaves-Bissesarsingh
,
2014
    ONSC 4900, 314 C.C.C. (3d) 493;
R. v. Daniels
,
2014 ONSC 6542.

[34]

Cross-examination
    of the affiant will be allowed when the trial judge is satisfied that there is
    a reasonable likelihood that the proposed cross-examination will assist in
    determining whether the necessary grounds existed for the issuance of the
    search warrant.  The focus is on the reasonableness and honesty of the
    affiants belief as to the existence of the requisite grounds, and not on the
    ultimate accuracy of the information relied on by the affiant:
Pires
,
    at paras. 41-43;
Sadikov,
at para. 40.

[35]

Motions
    to cross-examine affiants most often target specific, factual allegations in
    the ITO that are central to the existence of the reasonable grounds necessary
    to justify the granting of the warrant.  The accused on the motion to
    cross-examine, either by reference to other parts of the ITO, or extraneous
    evidence (often material provided by Crown disclosure) attempts to demonstrate
    that there is a reasonable likelihood that cross-examination of the affiant on
    certain parts of the ITO will undermine the grounds upon which the warrant
    was granted: see
Pires
,
at paras. 68-69. Cross-examination may undermine the grounds set out in the
    ITO either by contradicting information in the ITO or by adding information
    that was not in the ITO.  In either case, the honesty and/or reasonableness of
    the affiants grounds for believing that the warrant should issue are the
    ultimate target of the cross-examination.

[36]

Sometimes
    the motion to cross-examine the affiant is made on a wider basis.  An accused
    may argue that the ITO contains statements that are deliberately misleading and
    sufficiently significant to place the credibility of the entire ITO in issue.
Pires
,
at para. 63, holds that if there is a
    reasonable basis to believe that an affiant has deliberately attempted to mislead
    the authorizing judge in some part of the ITO, cross-examination should
    generally be allowed.

[37]

Counsel
    for the appellant seek to expand the grounds upon which cross-examination of
    the affiant can be allowed.  They submit that when the attack on the warrant is
    premised on an alleged breach of s. 8 of the
Charter
and the motion to
    exclude the evidence is brought under s. 24(2), factors relevant to the s.
    24(2) analysis can justify cross-examination of the affiant even though the
    accused cannot justify cross-examination on any issues relevant to the validity
    of the warrant.

[38]

On
    this approach, cross-examination of the affiant would be allowed if there was a
    reasonable likelihood that the cross-examination would produce evidence that
    could assist the accused in the s. 24(2) analysis as to the admissibility of
    the evidence.  For example, evidence of a single misstatement in the ITO might
    provide a basis upon which an accused could successfully argue that there was a
    reasonable likelihood that further cross-examination would reveal other
    examples of carelessness in the affiants preparation of the ITO. In turn, this
    carelessness could figure in a trial judges assessment of the seriousness of
    the police misconduct under s. 24(2), the first of the three factors identified
    in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[39]

This
    argument was not made before the trial judge and I would be inclined to reject
    it on that basis alone.  However, I would also reject the argument on its
    merits.
Garofoli
and
Pires
speak to the possibility of
    cross-examination going to the basis upon which the authorizing judge could
    grant the order.  Section 24(2) considerations have nothing to do with the
    basis upon which a justice could grant the warrant.

[40]

Counsel
    correctly point out that
Garofoli
and
Pires
were wiretap
    cases and the evidence was subject to its own set of statutory exclusionary
    rules.  Under those rules, non-compliance with the preconditions to the
    granting of the warrant required exclusion of the evidence obtained as a result
    of the warrant.  In that sense, the inquiries described in
Garofoli
and
Pires
addressed the ultimate admissibility of the evidence.

[41]

Cross-examination
    on issues relevant to s. 24(2) goes well beyond considerations relevant to the
    validity of the warrant.  Cross-examination on s. 24(2) issues at a point in
    time when the accused has not shown any basis upon which to challenge the
    validity of the warrant is at odds with the judicial economy rationale
    underlying
Garofoli
and
Pires
.  An expansion of the grounds
    upon which an affiant may be cross-examined to include issues relevant to s.
    24(2) when those issues are entirely irrelevant to the proceedings, absent a
    finding that the warrant should not have been granted, is not an effective and
    efficient use of judicial resources.  Expanding the ambit of cross-examination
    of the affiant to encompass issues relevant to s. 24(2) when there is no basis
    to permit cross-examination on the validity of the warrant itself, is in
    reality an attempt to justify cross-examination for one purpose  to establish
    grounds to exclude under s. 24(2)  in the hope that the cross-examination will
    uncover a basis upon which to attack the validity of the warrant, demonstrate a
    breach of s. 8, and thereby make s. 24(2) relevant.  This approach seems to put
    the proverbial cart before the horse.

[42]

While
    I do not accept that the potential relevance of cross-examination to s. 24(2)
    is a stand-alone ground for permitting cross-examination of the affiant, I
    would not foreclose a trial judge from exercising her discretion to allow
    cross-examination on matters relevant to s. 24(2) if the trial judge was
    satisfied that there was a basis to cross-examine the affiant on matters
    relevant to the validity of the warrant.  Trial judges must be given wide
    latitude in controlling the specifics of any cross-examination that may be
    allowed.  Depending on the issues raised and the nature of the
    cross-examination sought, it may be an effective use of judicial resources to
    allow cross-examination on issues relevant to s. 24(2) at the same time as the
    affiant is cross-examined on matters relevant to the validity of the warrant.
    In other circumstances, a trial judge may deem it appropriate to address only
    the matters related to s. 8,  leaving potential cross-examination on s. 24(2)
    to be addressed when and if the trial judge finds a s. 8 breach.

[43]

Counsel
    for the appellant relied primarily on the relevance of the proposed
    cross-examination to s. 24(2) issues to support the claim that the trial judge
    should have allowed cross-examination of the affiant on the specific areas
    identified by trial counsel.  Counsel candidly acknowledged that cross-examination
    in respect of some of those matters had little or no relevance to the validity
    of the warrant.  I agree with that concession.  As I would hold that s. 24(2)
    issues do not provide a gateway to cross-examination of the affiant, I will
    address only those areas of potential cross-examination that could go to the
    validity of the warrant.

[44]

Counsel
    for the appellant submit that the trial judge erred in refusing to permit
    cross-examination of the affiant on matters relevant to the credibility and/or
    reliability of the information provided by the confidential informant.  Counsel
    submit that this cross-examination would have gone to the validity of the
    warrant and was properly the subject of cross-examination even on a narrow
    reading of
Garofoli
and
Pires
.

[45]

Counsel
    point to three areas in which they sought to cross-examine the affiant.  First,
    the affiant says nothing in the ITO about the confidential informants motive
    for assisting the police.  Counsel argue that cross-examination of the affiant
    concerning his knowledge, if any, of the confidential informants motive and
    his reasons for not including any reference to that motive in his affidavit,
    assuming he was aware of one, could well impact on the affiants credibility
    and/or the reasonableness of his reliance on information provided by the confidential
    informant.

[46]

Second,
    counsel refer to the affiants description of the prior assistance to the
    police provided by the confidential informant.  The affiant stated that the
    confidential informant had provided information in the past and that the
    information had been accura[te].  There is no elaboration or explanation
    offered.  Counsel submit that cross-examination of the affiant could well
    disclose whether the affiant had any real basis upon which to describe the confidential
    informant as having provided accurate information.

[47]

Third,
    counsel point to the affiants description of the confidential informants
    criminal record as not involving crimes of deception.  Counsel contend that
    cross-examination of the affiant could bring clarity to the vague phrase used
    by the affiant and might well provide insight into the affiants candor and the
    reasonableness of his belief in the truthfulness of information coming from the
    confidential informant.

[48]

The
    trial judge ultimately declined to allow cross-examination on any of the areas
    relevant to the confidential informants reliability or credibility.  He was
    properly concerned about permitting cross-examination on matters that might
    identify the confidential informant.  In concluding that none of the proposed
    areas of cross-examination that were relevant to the confidential informants
    reliability or credibility justified cross-examination, the trial judge focused
    on whether there was reason to question the accuracy of any of those parts of
    the ITO.

[49]

There
    is merit in the submissions made by counsel for the appellant.  The affiants
    belief in the truth of the information that purportedly came from the confidential
    informant was crucial to the existence of reasonable grounds for the warrant.
    Steps taken by the affiant to inquire into the confidential informants
    reliability and credibility and what he did and did not know about matters
    relevant to the confidential informants credibility were germane to the
    affiants belief that reasonable grounds existed for the warrant.

[50]

It
    may be that a carefully controlled cross-examination of the affiant would have
    allowed counsel for the accused at trial to explore at least to some degree the
    three areas outlined above without risking identification of the confidential
    informant.  For example, cross-examination of the affiant as to his knowledge
    of the confidential informants motive for assisting the police, apart entirely
    from what that motive may have been, could, depending on the answers,
    negatively impact on the affiants credibility or the reasonableness of his
    belief in the information provided by the confidential informant.  It is not
    apparent to me how that kind of focused questioning could have risked
    identifying the confidential informant.

[51]

Some
    might describe my hypothetical cross-examination of the affiant as a fishing
    expedition.  It is hard, however, to know what additional information an
    accused could possibly produce to support the claim to cross-examine the
    affiant on his knowledge of the confidential informants motives for
    co-operating with the police.  The affiant chose to say nothing about the confidential
    informants motives in the ITO.  One can safely assume that a confidential
    informant has a motive for co-operating with the police.  Putting these two
    factors together seems to me to be enough to justify cross-examination of the
    affiant as to his knowledge of the confidential informants motives as long as
    that cross-examination does not risk identifying the confidential informant.

[52]

In
    the end however, what I may or may not have done had the motion to
    cross-examine been before me is not determinative of the appeal.  A trial
    judges ruling permitting or refusing cross-examination of the affiant is an
    exercise of the trial judges discretion.  This court must defer to the trial
    judge absent demonstration that the discretion was not exercised judicially:
Pires,
at paras. 46-47.

[53]

The
    appellant has not convinced me that the trial judges refusal to permit
    cross-examination in the three areas described above falls outside the proper
    exercise of his judicial discretion.  It was open to the trial judge to
    conclude, in the absence of any material extraneous to the ITO itself, and
    having regard to the entirety of the ITO, that there was not a reasonable
    likelihood that cross-examination of the affiant on the areas set out above was
    likely to assist the court in determining whether the warrant should have
    issued.  In this respect, I think it is significant that the grounds advanced
    in this ITO in support of the warrant emphasized the cogency of the confidential
    informants information and the presence of independent confirmation of that
    evidence.  As noted by the trial judge, there was very little in the ITO to
    support the credibility of the confidential informant.  The three areas of
    potential cross-examination outlined above would not have affected either the
    cogency of the information provided by the confidential informant or the
    presence of independent confirmatory evidence.  The trial judge was also
    entitled, as he did, to give weight to the need to protect the identity of the confidential
    informant in determining whether to permit cross-examination: see
Pires
,

paras. 33 and 36.

[54]

Some
    judges may, in the exercise of their discretion, have permitted limited
    cross-examination of the affiant on the three areas described above.  I count
    myself in that group.  I cannot, however, say that the trial judge failed to
    exercise his discretion judicially in choosing the more cautious course and
    refusing cross-examination.

IV

conclusion

[55]

I
    would dismiss the appeal.

RELEASED:   AH  AUG 24 2015

Doherty J.A.

I agree Alexandra Hoy A.C.J.O.

I agree M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Harp, 2015 ONCA 589

DATE: 20150828

DOCKET: C60469

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Lindsay Harp

Applicant/Appellant

Robert Sheppard, for the appellant

Randy Schwartz, for the respondent

Heard: August 24, 2015

On appeal from the sentence imposed on January 29, 2015
    by Justice Wayne G. Rabley of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant acknowledges that his sentence is not demonstrably unfit.
    Nonetheless he submits that the sentencing judge made two errors in principle.
    First, he failed to take into account
Gladue
principles; and second he
    failed to apply the jump principle.

[2]

On the appellants first submission, even if the sentencing judge did
    not sufficiently consider
Gladue
principles, the sentence he imposed is
    still fit. The appellant has a very long criminal record, which includes many
    offences of violence and many property related offences. He has shown no regard
    for community based sanctions. Indeed, he committed these offences while bound
    by a probation order. And his conduct itself put a police officer at risk of
    harm.

[3]

We note that the sentencing judge was aware of the appellants aboriginal
    background, and that counsel did not put before the court any detailed
    information about the appellants aboriginal circumstances.

[4]

On the appellants second submission we agree with the Crown that the
    jump principle does not serve to reduce the appellants sentence. As Mr.
    Schwartz pointed out this was a measured, not a crushing increase in the
    appellants previous sentences, as he had received sentences of 6-9 months for previous
    property offences, and a 15 month sentence for a crime of violence, extortion.

[5]

For these reasons, though leave to appeal sentence is granted,
    the sentence appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.M.,
    2015 ONCA 582

DATE: 20150827

DOCKET: C57329

Feldman, Simmons and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Appellant

K.M., acting in person

Christine Bartlett-Hughes, for the respondent

Mark Halfyard, appearing as duty counsel

Heard: March 9, 2015

On appeal from the conviction entered on March 1, 2013
    and the sentence imposed on June 20, 2013 by Justice Meredith Donohue of the Superior
    Court of Justice, sitting without a jury.

Juriansz J.A.:

[1]

This in-person appeal came before the Court at the inmate sitting on
    March 9, 2015. The appellant was charged that he sexually assaulted and
    physically assaulted the complainant on April 26, 2010. The complainant is the
    mother of the appellants daughter. At the trial, the complainant testified she
    could not recall the incident that she had described in her statement to the
    police and about which she had testified at the preliminary inquiry. A
voir
    dire
was held and the trial judge allowed the Crowns application to admit
    the complainants testimony at the preliminary inquiry for the truth of its
    contents, but did not admit her statement to the police. The appellant was
    convicted on both charges and sentenced to two years in the penitentiary. He
    appeals the conviction for sexual assault.

[2]

Duty counsel on behalf of the appellant submitted that the trial judge
    committed two errors:

1.

The trial judge used the complainants demeanour while recanting to
    support the appellants guilt, rather than considering the inability to assess
    demeanour at the preliminary inquiry as reducing the weight to be given to the
    hearsay statements.

2.

In concluding that the Crown had proven the case beyond a reasonable
    doubt, the trial judge improperly relied on the complainants demeanour at
    trial when recanting her testimony from the preliminary inquiry.

[3]

At the hearing on March 9, 2015, the panel indicated it was unable to
    assess these arguments without the full trial transcript. The panel instructed that
    the full trial transcript be obtained and the parties file supplemental written
    submissions. The filing of those submissions was completed on July 29, 2015.

(1)

Use of the complainants demeanour while recanting the preliminary
    inquiry testimony

[4]

The trial judge was entitled to consider the demeanour of the
    complainant when assessing her testimony at trial that she could no longer
    recall what happened on April 26, 2010. The trial judge was entitled to consider
    the complainants demeanour at trial in determining whether her professed
    failure to recall stemmed from her stated wish to reconcile with the appellant.
    This was significant because at trial the complainant did not testify the
    events did not transpire as described in her preliminary inquiry testimony.
    Rather, in explaining her inability to recall, she gave evidence that could be
    taken to suggest the incidents occurred. For example, she testified that she
    wanted everybody to put this behind, so we can move, move on from this, that
    when she gave her police statement she spoke about what happened, and that
    the incident was an isolated thing that got blown pretty much out of
    proportion.

[5]

I am not persuaded that the trial judge erred in the way she considered
    the complainants demeanour at trial.

(2)

Reliance on the evidence taken during the
voir dire
in
    determining the ultimate reliability of the complainants preliminary inquiry
    evidence

[6]

In her testimony at the trial proper, the complainant testified that she
    had no recollection of the events. However, during the
voir dire
she
    testified that she had told the truth at the preliminary inquiry. She said she would
    rather have the charges dropped, because [she had] forgiven [the appellant] for
    whats happened. In her analysis, the trial judge relied on the complainants testimony
    she had told the truth at the preliminary inquiry. Duty counsel points out that
    the Crown and the defence did not explicitly agree that the evidence given on
    the
voir dire
should be admitted as part of the evidence of the trial
    and submits that the trial judge erred by relying on evidence given at the
voir
    dire
.

[7]

I do not agree. The transcript makes evident that the parties proceeded
    on the tacit understanding that they intended that the evidence given at the
voir
    dire
would be admitted at trial. It is evident because defence counsel
    made extensive reference to the
voir dire
evidence in his closing
    submissions. In fact, it seems to me that defence counsel, in his
    cross-examination of the complainant at trial, had the complainant adopt her
    evidence given on the
voir dire
. He asked her: the answers youve
    given over the past few days[,] are they the truth? Read in context, it seems
    clear to me that the answers given by the complainant on the
voir dire
were within the ambit of his question. The complainant answered yes.

[8]

The trial judge did not err by proceeding on the basis that defence
    counsel had tacitly agreed the
voir dire
evidence was admissible at
    trial.

Conclusion

[9]

I would dismiss the appeal.

Released: August 27, 2015 (KF)

R.G.
    Juriansz J.A.

I
    agree K. Feldman J.A.

I
    agree Janet Simmons J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacIsaac, 2015 ONCA 587

DATE: 20150831

DOCKET: C58389

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gordon MacIsaac

Appellant

Frank Addario and Andrew Burgess, for the appellant

Kevin Rawluk, for the respondent

Heard: April 7, 2015

On appeal from the conviction entered on December 16,
    2013 by Justice Diane M. Lahaie of the Ontario Court of Justice, sitting
    without a jury, with reasons reported at 2013 ONCJ 787.

Hourigan J.A.:

[1]

Mr. MacIsaac appeals his conviction on one count of aggravated assault,
    which resulted from an on-ice collision during a recreational hockey game in
    Ottawa.

[2]

Central to the determination of guilt at trial was the issue of whether
    the collision was an unavoidable accident, as submitted by the appellant, or a
    deliberate blindside hit, as submitted by the Crown and found by the trial
    judge.

[3]

For the reasons that follow, I would allow the appeal and order a new
    trial. In my view, the appellant did not receive a fair trial because the trial
    judge engaged in impermissible speculative reasoning in reaching her verdict.

A.

FACTS

[4]

This appeal stems from a collision between two players during a March
    15, 2012, hockey game in the no-contact Ottawa senior mens league. The
    appellant played for the Tiger-Cats and the complainant played for the Pirates.
    During the final 47 seconds of the game, with the complainants team up by two
    goals, the pair collided. The complainant was knocked to his back on the ice.
    He suffered several lacerations to his face, two missing front teeth and a
    concussion. At the time of trial, he continued to experience debilitating daily
    headaches as a result of the incident.

[5]

The appellant was charged with one count of aggravated assault. The
    court heard from 11 witnesses, including the appellant, the complainant, one of
    the games referees, and various members of both hockey teams.

[6]

The Crowns position was that the appellant deliberately delivered a
    blindside hit to the left side of the complainants head. The complainant and
    the three Crown witnesses who observed the incident all gave slightly different
    accounts. The complainant testified that he entered the area behind his teams
    net from the right side (from the perspective of someone facing the net). He
    skated behind the net and was on the left side of the net with his head turned
    to his right when the appellant struck the left side of his head.

[7]

The goalie on the complainants team, David Winton, testified that he
    saw the appellant leap off the ice, raise his arms and hit the complainant in
    his shoulder and head area. Mr. Winton said the appellants arms hit the
    complainants head and that the appellants facemask may have hit the
    complainants face.

[8]

Jonathan Clark, another teammate of the complainant, said the appellant
    stood tall with his arms raised up and delivered a line drive hit. While he
    did not see the appellants skates leave the ice he said he was not looking at
    the appellants feet.

[9]

Jonathan Desjardins, one of the referees, testified that the appellant
    entered the Pirates zone from the left side and the complainant entered from
    the right side. Mr. Desjardins stated that the appellant and the complainant were
    facing each other when the appellant lifted his skates about six inches off the
    ice, raised his arms above his shoulders and hit the complainant. The
    appellants forearm made contact with the complainants head, causing it to
    snap back. Although Mr. Desjardins repeatedly stated that the pair was facing
    each other when the collision occurred, he believed that the complainant would
    not have been anticipating the hit. Mr. Desjardins immediately attended to the
    complainant after the collision. He noticed that the complainant had suffered a
    number of injuries, including a cut on his chin, a gash above his lip on the
    left side, and two missing front teeth. Half of his face was covered in blood.
    Mr. Desjardins and Mr. Winton believed the incident was a deliberate hit
    and not an accidental collision because the appellants arms were raised and
    his feet were lifted off the ice.

[10]

The
    Crown witnesses differed as to where the puck was at the time of the collision.
    Mr. Desjardins claimed that both the appellant and the complainant were skating
    towards the puck. The complainant testified that neither he nor the appellant
    had the puck. Mr. Winton did not remember exactly where the puck was. He said
    the complainant did not have the puck but that it may have been in the general
    area of where the hit occurred. Mr. Clark believed that a number of other
    players were fighting over the puck in a corner, away from the point of impact.

[11]

The
    Crown also called two of the complainants other teammates, one of whom was his
    brother, who testified that after the incident the appellant skated by the
    Pirates bench and said thats retaliation for the trip, referring to an
    incident earlier on the same play where one of the appellants teammates was
    tripped.

[12]

The
    defence position was that the incident was an accidental, unavoidable
    face-to-face collision.

[13]

The
    appellant said he skated towards the complainant, who had the puck, to try to
    steal the puck and score a goal. He claimed that when the pair was beside the
    Pirates net, the complainant suddenly turned, which caused them to collide.
    The appellant said he and the complainant were nearly facing each other when
    they collided and there was no reason the complainant would not have seen him
    coming.

[14]

Two
    of the appellants teammates, Kenneth Shouldice and Jason Shorey, agreed that
    the appellant and the complainant had been facing each other, while another
    teammate, Ryan Robinson, testified that he saw both men moving towards the puck
    but could not tell if they made eye contact. Mr. Shorey said he saw both the
    appellant and the complainant brace themselves before colliding.

[15]

As
    for the location of the puck, Mr. Robinson and Mr. Shouldice claimed that the
    complainant and the appellant were both skating towards the puck, while Mr.
    Shorey said the complainant got rid of the puck immediately before the
    collision.

[16]

All
    of the defence witnesses testified that they believed the incident was
    unintentional and unavoidable. The appellant and the defence witnesses who
    observed the collision all testified that the appellants feet did not leave
    the ice and that he did not raise his arms above his shoulders.

[17]

The
    appellant testified that when he skated by the Pirates bench after the
    incident he said something to the effect that it could easily have been any one
    of his own teammates who was injured. He explained that he had been referring
    to the tripping incident earlier on the same play and suggested that his
    statement may have been misinterpreted to mean that the hit was retaliatory or
    intentional. Nonetheless, he insisted the incident was an accidental collision.

B.

DECISION BELOW

[18]

The
    trial judge began by stating that most of the witnesses showed a clear bias
    depending on which of the two hockey teams he belonged to. She found that the
    referee, Mr. Desjardins, was the sole completely neutral witness and that his
    evidence was credible and reliable. While Mr. Desjardins account of the
    appellant and complainants positions on the ice  with the pair heading
    towards the puck behind the net  differed from that of the other witnesses,
    the trial judge accepted the entirety of his evidence aside from his testimony
    regarding the tripping incident earlier on the same play.

[19]

The
    trial judge also accepted the complainants testimony in its entirety. The
    injuries to the left side of the complainants face were consistent with his
    testimony about where he was looking and supported the conclusion that this was
    not a face to face head on collision. Mr. Wintons account of the incident
    was also consistent with Mr. Desjardins evidence, the complainants injuries
    and a finding that the appellant delivered a deliberate blindside hit.

[20]

The
    trial judge rejected the evidence of the appellants teammate Mr. Robinson.
    She was not prepared to find beyond a reasonable doubt that Mr. Robinson had
    been on the ice at the time of the incident because it was not logical for
    three Tiger-Cats defencemen to be on the ice with the team down by two points
    and with so little time left in the game. Even if Mr. Robinson had been on the
    ice, his stated position would not have been conducive to observing what he
    described in his testimony. Specifically, he would have been looking at the
    appellant from the back and would not have been able to tell whether his hands
    were down.

[21]

Similarly,
    the trial judge rejected Mr. Shouldices evidence on the ground that he would
    not have been able to see the collision from his stated position. Mr. Shouldices
    testimony that the appellant and the complainant were facing each other when
    they made contact was illogical because neither man moved to avoid the
    collision. The trial judge also found that this testimony was inconsistent with
    the complainants injuries and with the complainant and Mr. Desjardins
    descriptions of how the complainant fell to the ice.

[22]

Although
    the trial judge accepted the evidence of defence witness Andrew Cameron,
    another member of the appellants team, that the game became more intense as it
    went along, she rejected his evidence about the location of the puck at the
    time of the collision because it was not consistent with the testimony of any
    other witness.

[23]

As
    for Mr. Shorey, the trial judge found that his testimony was biased and
    included numerous errors. She said his claim that he saw hits similar to the
    one at issue all the time stood in stark contrast to Mr. Desjardins
    testimony that it was the most serious hit he had seen in the league. The trial
    judge also stated that Mr. Shoreys account of the hit was inconsistent with
    the evidence of Mr. Desjardins, Mr. Winton, and the complainant, all of
    which she accepted.

[24]

Turning
    to the testimony of the appellant, the trial judge first adverted to the
    standard for assessing credibility set out in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742. She rejected the appellants evidence on the ground that it was
    illogical and inconsistent on key points. Specifically, she rejected his claims
    that he left his usual position as a defenceman in an effort to steal the puck
    from the complainant and score a goal, that the complainant made an
    unpredictable turn rendering a collision unavoidable, and that the appellant
    did not have sufficient control over his speed to avoid hitting the
    complainant.

[25]

The
    appellants account of the hit was inconsistent with the complainants injuries
    and with the evidence of the complainant and Mr. Desjardins, which the trial
    judge accepted. The trial judge found that the complainant did not have the
    puck at that time because if he had, it would have been illogical for him not
    to have seen and avoided the appellant. Further, if the appellant had truly
    been aiming to get control of the puck and score a goal, he would have been
    focused on the puck in the left corner of the ice and would not have been
    skating at full speed towards the location where the collision occurred.

[26]

The
    trial judge accepted that as the appellant skated by the Pirates bench after
    the collision he commented that a member of his own team could have been
    injured on the play. She explained that there would have been no reason for the
    appellant to mention another player on his team, even generally, if he was not
    concerned with the earlier tripping incident.

[27]

Given
    that this comment was made immediately after the hit to the complainant, the
    trial judge was convinced beyond a reasonable doubt that the appellant
    intentionally delivered a blindside hit to the complainants head as
    retaliation for the tripping incident.

[28]

On
    the issue of consent, the trial judge found that the hit amounted to such a
    marked departure from the conduct expected in a no-contact hockey league that consent
    to such conduct cannot be given. As for
mens rea
, the trial judge
    held that the appellant foresaw the risk that his actions would cause serious
    bodily harm, but nonetheless chose to take that risk. The Crown had established
    beyond a reasonable doubt that the appellant intended the consequences of his
    actions, which carried a sufficient risk of injury and objective foreseeability
    of bodily harm to negative consent. As a result, the trial judge convicted the
    appellant of aggravated assault.

C.

POSITIONS OF THE PARTIES

(i)

Position of the Appellant

[29]

The
    appellant submits the trial judge erred in her fact-finding process by
    reversing the onus of proof and rejecting defence evidence based on speculative
    reasoning. In the appellants view, the trial judge created an amalgam of the
    inconsistent Crowns witnesses accounts without considering whether the
    inconsistencies raised a reasonable doubt. She then rejected evidence where it
    was inconsistent with the assembled Crown narrative. These errors shifted the
    onus of proof to the appellant to explain his innocence.

[30]

The
    appellant also submits the trial judge misapplied the law of consent and failed
    to consider whether the appellant had an honest but mistaken belief in consent.
    The appellants evidence was that he had a belief that players in the hockey
    league consented to any type of bodily contact that was foreseeable in a game,
    including deliberate blindside checks. The fact that defence counsel did not
    raise the issue did not relieve the trial judge of her obligation to turn her
    mind to the defence and whether it was applicable in the circumstances.

(ii)

Position of the Respondent

[31]

The
    respondent submits that the trial judge carefully considered the evidence and
    made factual findings that were well supported on the record. She did not err
    in in her assessment of the evidence, subject it to different levels of
    scrutiny or engage in speculative reasoning. There was no air of reality to the
    defence of honest but mistaken belief in consent, which was not raised at
    trial, because the trial judge found that the appellant delivered a deliberate
    blindside hit and the appellant admitted that such hits fall outside the scope
    of the expected play in a non-contact hockey league.

D.      ANALYSIS

[32]

There
    are three issues raised on the appeal. First, did the trial judge engage in
    impermissible speculation? Second, did the trial judge reverse the onus of
    proof? Third, did the trial judge err in failing to consider the defence of
    honest but mistaken belief in consent?

[33]

I
    agree with the submission of the appellant that the trial judge engaged in
    impermissible speculative reasoning in rejecting the evidence of the defence
    witnesses. This impaired the appellants right to a fair trial. On this basis,
    I would order a new trial. It is unnecessary, therefore, to consider the other
    issues raised by the appellant.

[34]

The
    first example of speculative reasoning is the trial judges rejection of the
    evidence of Mr. Robinson at para. 122:

I am not prepared to find beyond a reasonable doubt that Mr.
    Robinson was on the ice as it was not logical that three Tiger-Cats defencemen
    would be on the ice in the last minute of the game when the Tiger-Cats were
    down by two goals.

[35]

Obviously,
    the defence had no burden to prove any fact, including that Mr. Robinson
    was on the ice, let alone to the standard of proof beyond a reasonable doubt.
    Leaving aside that part of the statement, which might have been a slip by the
    trial judge, the balance of the reasons given for this rejection of Mr.
    Robinsons evidence remains troubling. The trial judge appears to be taking
    judicial notice of hockey strategy and using that as a basis for rejecting the
    testimony.  Her conclusion about who would be on the ice at the end of the game
    is entirely speculative and is also contrary to the evidence of Mr. Shorey
    that, in the final stages of games in the Ottawa senior mens league, teams
    play the most skilled players, regardless of their positions.

[36]

The
    Crown correctly submits that this passage should not be examined in isolation
    from the rest of the reasons:
R. v. R.M.
, 2014 ONCA 785, 317 C.C.C.
    (3d) 145, at paras. 44-47. In addition, the Crown points out that the trial
    judge went on to find that even if Mr. Robinson was on the ice, his position
    was not conducive to observing what he described and that his evidence was
    biased and unreliable.

[37]

I
    agree that if this were the sole example of speculative reasoning that it may
    not be sufficiently egregious to imperil trial fairness and warrant ordering a
    new trial. However, this is but one example of speculative reasoning engaged in
    by the trial judge. In addition, it is hard not to draw a link between the
    trial judges conclusion that Mr. Robinsons evidence was biased and unreliable,
    and her finding that he erroneously testified that he was on the ice at the
    time of the incident. Thus the speculative reasoning is not entirely benign as
    the Crown would contend.

[38]

The
    second example of speculative reasoning also includes the trial judges views
    on hockey strategy. In rejecting the evidence of the appellant about what he
    was doing immediately before contact with the complainant, she stated at para.
    136:

Mr. MacIsaac was a defencemen who was out of position both
    because he was deep in the other teams zone and because he was a on the wrong
    side. It defies logic that Mr. MacIsaac, a defencemen, would have gone to the
    net in hopes of scoring a goal and that he would be skating with such lack of
    control.

[39]

Again
    the trial judge appears to impose her personal knowledge of hockey on the facts
    of the case. She reached this conclusion in an evidentiary vacuum. There was no
    evidence about whether players in this league stick to their position at all
    times. Moreover, the trial judge ignored the fact that the appellants team was
    down two goals with less than a minute to go in the game and was, according to
    Mr. Shorey, planning on pulling their goalie to add another skater.  Thus the
    evidence suggests that their priority was not playing defence, but rather
    scoring goals.

[40]

The
    third example, found at para. 137 of the trial judges reasons, is as follows:

If Mr. MacIsaac was skating in to score a goal or poke the puck
    away, he would have had to have more control over his speed than he purports to
    have had.

[41]

This
    finding, like the two previously mentioned, is speculative and based on the
    trial judges understanding of hockey, specifically the speed that a player
    would be skating in that situation. Moreover, the appellant did not testify
    that he was skating out of control. Rather, he said that he was skating quickly
    and the collision occurred because the complainant made an unexpected turn.

[42]

The
    fourth example is also found at para. 137 of the trial judges reasons:

Mr. MacIsaacs evidence in relation to the play is not
    consistent with the injuries sustained by the complainant and it is not
    consistent with the evidence of Mr. Desjardins and Mr. Casteron which I
    accept.

[43]

The
    trial judge did not elaborate on how or why the injuries were inconsistent with
    the appellants testimony. The testimony of the appellant was that the front of
    his helmet hit the complainants face when they collided. The Crown called no
    medical or other expert evidence and thus there was no basis upon which the
    trial judge could reach this conclusion, other than on her review of the
    description and photos of the complainants injuries. In my view, the type of
    injuries that would be suffered as a result of the collision if it occurred as
    the Crown witnesses testified or as the defence witnesses testified was not a
    matter that was within the knowledge of the trial judge.

[44]

The
    fifth example is found at para.138 of the trial judges reasons:

I also reject Mr. MacIsaacs assertion that Mr. Casterton had
    the puck because it would be illogical for Mr. Casterton not to see Mr.
    MacIsaac if he had the puck and would have to manoeuvre around him.

[45]

The
    suggestion appears to be that the complainant would have his head up if he had
    the puck. Once again, this is speculative. In fact, Mr. Casterton testified
    that there is less need to keep ones head up in no-contact leagues.

[46]

It
    was open to the trial judge to draw inferences that
reasonably
    and logically flowed from the facts established by the evidence.  But it was an
    error of law to draw inferences that did not flow logically and reasonably from
    established facts, because doing so draws the trial judge into the
    impermissible realms of conjecture and speculation:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at pp. 530-531.

[47]

Where
    a trial judge has employed speculative reasoning,
unless the
    Crown can demonstrate that the error caused no substantial wrong or miscarriage
    of justice, the convictions tainted by that error must be quashed:
Morrissey
, at p. 531.

[48]

The
    examples of the trial judges speculative reasoning cited above were not on
    peripheral areas; the issues she was dealing with were central to the case and
    were highly relevant to the determination of whether the Crown had proven the offence
    beyond a reasonable doubt. For example, evidence of the appellants intentions
    as he skated toward the complainant was critical in deciding if this was a
    premeditated hit or an accidental collision.  The evidence of defence witnesses
    was rejected in whole or in part based upon the trial judges understanding of
    hockey strategy and her views regarding on-ice injures, unaided by any expert
    testimony. While an isolated example of speculative reasoning may not have
    sufficed to render the trial unfair, I agree with the submission of the
    appellant that the trial judge rejected evidence that was capable of raising a
    reasonable doubt based on this series of speculative conclusions, and that this
    reasoning directly lead to her decision to convict.

[49]

The
    appellant was entitled to a determination of his guilt or innocence based on
    the evidence at trial, not on the hockey experience of the trial judge or her
    understanding of the injuries to be expected from various types of on-ice
    collisions. An accused in a criminal proceeding must make any number of
    strategic decisions based upon the evidence that is presented at trial. He or
    she bases decisions about what questions to ask, what evidence to lead, whether
    to testify and what arguments to advance, based on the state of play of the
    trial. A trial judge ought not to supplement and supplant the evidentiary
    record, except in very limited situations where taking judicial notice is
    permitted.

[50]

This
    was not a case in which judicial notice could be taken of the disputed facts. A
    court can take judicial notice of a fact only if it is: (1) so notorious or
    generally accepted that no reasonable person would disagree; or (2) capable of
    immediate demonstration by reference to sources of indisputable accuracy (
R.
    v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48, citing
R. v.
    Potts
(1982), 66 C.C.C. (2d) 219 (Ont. C.A.)). Due to concerns about
    possible prejudice to the accused, the Supreme Court has set strict limits on
    the use of judicial notice to determine adjudicative facts in criminal trials:
R.
    v. Spence
, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 61-62. Those
    concerns have been echoed more recently by this court:
R. v. Perkins
, 2007
    ONCA 585, 223 C.C.C. (3d) 289, at paras. 37-42.

[51]

Measured
    against the above principles, hockey strategy is not a proper subject for
    judicial notice. From the sports pages to social media, it is abundantly clear
    that reasonable Canadians often disagree about what constitutes a rational
    hockey strategy in a given situation. Nor is there any source of indisputable
    accuracy by which to settle these disagreements. Neither branch of the test for
    judicial notice is fulfilled.

E.      DISPOSITION

[52]

In
    my view, the trial judge erred in law in engaging in speculative reasoning,
    which led to the appellants conviction and denied him a fair trial.
    Accordingly, I would quash the appellants conviction and order a new trial.

Released: August 31, 2015 (JL)

C.W.
    Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree P. Lauwers J.A.