COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Daniels, 2017 ONCA 551

DATE: 20170629

DOCKET: C60445

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Daniels

Appellant

Breana Vandebeek, for the appellant

Lisa Csele, for the respondent

Heard: June 21, 2017

On appeal from the conviction entered by Justice Kenneth
    L. Campbell of the Superior Court of Justice, sitting with a jury, dated November
    27, 2014.

REASONS FOR DECISION

Background

[1]

At the conclusion of the hearing of the appeal, we dismissed the appeal,
    with reasons to follow. These are those reasons.

[2]

Acting on a tip from a confidential informant, the Toronto police
    obtained a telewarrant to search the appellants apartment, which resulted in a
    seizure of drugs. The appellant was tried before a jury and found guilty of
    possession for the purposes of trafficking. He was sentenced to a 16 month
    conditional sentence. He appeals his conviction and seeks leave to appeal
    sentence.

[3]

The appellant challenged the telewarrant on numerous grounds. The trial
    judge quashed the warrant on the narrow basis that the affiant had failed in
    the ITO to provide any explanation of why it was necessary to resort to the
    telewarrant procedure, rather than appearing in person before a justice of the
    peace. Notwithstanding the violation of s. 8 of the
Charter
, the trial
    judge admitted the evidence obtained from the search under s. 24(2).

Issues

[4]

With respect to the conviction appeal, the appellant argues that the
    trial judge erred: (1) in restricting the appellants cross-examination of the affiant
    of the ITO; (2) in finding there were reasonable and probable grounds to issue the
    warrant; and (3) in not excluding the evidence obtained in the search.

[5]

With respect to the sentence appeal, the appellant argues that the
    sentence is unfit, and the trial judge erred in not granting him credit as a
    result of the
Charter
breach.

Conviction appeal

Cross-examination of the affiant

[6]

The appellant argues that the trial judge made numerous errors in
    restricting the appellants cross-examination of the affiant of the ITO, which
    restrictions frustrated the appellants ability to argue there were not reasonable
    and probable grounds to issue the warrant.

[7]

The main thrust of the appellants argument is that there were numerous
    omissions and misrepresentations in the ITO, which called into question the
    extent to which the affiant provided full, fair, and frank disclosure. The
    appellant hoped to explore, through cross-examination, whether the affiant made
    deliberate misrepresentations, which would constitute an independent basis to
    quash the warrant, and would necessitate a fresh s. 24(2) analysis.

[8]

Chief among the omissions was the failure to advise that the
    confidential informant had never before provided the police with information.
    Among the alleged misrepresentations were statements about: (i) police
    observations of the quantity and location of drug packaging in the hallway and
    stairwell outside the appellant's apartment, (ii) police observations of
    whether the smell of marijuana outside the appellant's apartment was fresh or
    burnt, and (iii) the confidential informants physical description of the
    appellant.

[9]

We do not agree that the trial judge made an error in refusing cross-examination
    on these matters. The decision of whether to permit cross-examination is
    discretionary. In making the decision, the trial judge must determine whether
    there is a reasonable likelihood that the cross-examination could undermine the
    basis upon which an authorizing judge could grant the order.

[10]

The trial judge carefully considered each of the appellant's submissions,
    and assessed whether the information that could be obtained through
    cross-examination on these issues could have vitiated the warrant. He concluded
    no. The reasons given by the trial judge are in every respect a model of care
    and precision of thought. The trial judge painstakingly went through each
    proposed area of examination and explained, through logic and reference to the
    rest of the information contained in the ITO, how the proposed areas of
    examination were either far too speculative or otherwise incapable of
    undermining the order. We find no error.

Reasonable and probable grounds to
    issue the telewarrant

[11]

The appellant argues further that the trial judge erred in rejecting
    several additional bases for quashing the telewarrant, and ought to have
    concluded that there were not reasonable and probable grounds to issue the
    warrant.

[12]

It is well-settled that the question for the reviewing judge is whether
    the warrant could have been issued, not whether the reviewing judge would have
    issued it:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para.
    40. Here, the trial judge concluded that the issuance of the warrant was
    inevitable, notwithstanding the credibility issues attached to the
    confidential informant (due to his criminal record, lack of a history of
    providing credible tips, participation in drug sub-culture, and self-interest
    in providing information), and notwithstanding various technical drafting
    errors that were made in good faith.

[13]

The trial judge was satisfied that the information was compelling and
    corroborated. The information received was not generic, but specific with
    respect to the types of drugs the informant claimed to have purchased from the
    appellant at his apartment, as well as the details such as drug storage
    location and quantities, and the name, address, and cell phone number of the
    supplier, as well as his physical description.

[14]

With respect to corroboration, the trial judge noted that the police
    confirmed with building management the unit number and telephone number
    supplied by the informant. They attended outside the unit number and smelled a
    strong marijuana odour emanating from the apartment and filling the hallway.
    They also observed drug packaging in the hallway. Additionally, while in the
    apartment building, they were approached by a resident who volunteered that
    the guy in 311 was a problem, and had druggies coming to the door at all
    hours, day and night.

[15]

The trial judge concluded from all of the foregoing that there were ample
    grounds upon which the issuing justice could have issued the warrant, and he
    made no error in doing so.

Section 24(2) ruling

[16]

As stated above, the basis for the trial judges conclusion that the
    search of the appellants apartment infringed s. 8 of the
Charter
was
    the failure to justify the use of the telewarrant procedure. The trial judge
    found that this was not a sufficiently serious breach of the appellants s. 8
    rights to justify an exclusion under s. 24(2) of the drugs seized. The
    appellant has not identified any errors in the trial judges analysis founded
    on that particular breach. Given that we do not give effect to the appellants
    argument that the trial judge erred in not finding additional s. 8 breaches, we
    necessarily reject the appellants s. 24(2) argument premised on those
    additional breaches.

Leave to appeal sentence

[17]

The appellant was sentenced to a conditional sentence of 16 months, plus
    a probationary period of two years. The custodial portion of the sentence has
    been served, but the appellant seeks to have the probation order vacated on the
    basis that he ought to have been granted a sentence reduction for the s. 8
    breach, and also because the sentence was harsh in the circumstances of the
    appellants health issues and lengthy house arrest while on bail.

[18]

There is no error in principle or other error that would permit a
    variation of sentence:
R. v. Lacasse
, [2015] 3 S.C.R. 1089. Leave to
    appeal sentence is refused.

Disposition

[19]

The appeal of conviction is dismissed. Leave to appeal sentence is
    refused.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davies, 2017 ONCA 467

DATE: 20170607

DOCKET: C61887

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

BETWEEN

Her Majesty the Queen

Respondent

and

Victor James Paul Davies

Appellant

Alexander Ostroff, for the appellant

Shawn Porter, for the respondent

Heard: May 9, 2017

On appeal from the sentence imposed on August 7, 2015 by
    Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

A jury convicted the appellant of robbery, use
    of an imitation firearm, and masking his face. He was sentenced to a global
    sentence of twelve years imprisonment: ten years for the robbery, two years
    (consecutive) for the use of an imitation firearm, and one year (concurrent)
    for masking his face. He seeks leave to appeal his sentence and, if leave is
    granted, he seeks to rely on fresh evidence.

[2]

The fresh evidence describes the appellants
    personal history. He was taken into child protection as a young child, declared
    a Crown ward, and placed at St. Johns Training School. While there, he was the
    victim of physical and sexual abuse.

[3]

The Crown concedes that the sentencing judge
    committed an error in principle by sentencing the appellant, who represented
    himself at the sentencing hearing, without obtaining or considering information
    about his personal circumstances. Accordingly, leave to appeal sentence is
    granted and the fresh evidence is admitted.

[4]

The Crown argues that notwithstanding the fresh
    evidence, the sentence imposed at trial remains fit, having regard to the
    appellants lengthy record, which includes previous convictions for robbery and
    firearm offences. The Crown submits that the sentence appeal should therefore be
    dismissed.

[5]

We do not agree. In our view, the sentencing
    judges error in principle impacted the sentence he imposed. The fitness of a
    sentence depends not only on the seriousness of the crime and its consequences,
    but also on the moral blameworthiness of the offender:
R. v. Lacasse
, [2015] 3 S.C.R. 1089. The appellants personal circumstances
    inform the question of moral blameworthiness and are not reflected in the
    sentence that was imposed.

[6]

The appeal is allowed and the sentence is
    reduced  as requested by the appellant - to a global sentence of ten years
    imprisonment: eight years for the robbery, two years (consecutive) for the
    firearm offence, and one year (concurrent) for masking his face. We make no
    change to the credit granted for pre-sentence custody.

Alexandra
    Hoy A.C.J.O.

K.
    Feldman J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dolinski, 2017 ONCA 495

DATE: 20170614

DOCKET: M47927 (C60749)

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Moving Party)

and

Marian Dolinski

Appellant (Responding Party)

Nick Devlin, for the moving party

Andrew Menchynski, for the responding party

Heard and released orally: June 9,
    2017

REASONS FOR DECISION

[1]

On
    October 3, 2014, the appellant was convicted of conspiracy to commit fraud and
    falsely obtaining a refund or credit under the
Income Tax Act
. Two weeks later, he was
    sentenced to concurrent terms of imprisonment of 30 months and ordered to pay a
    substantial fine.

[2]

About
    two weeks after sentencing, the appellant filed an inmate notice of appeal
    against conviction and sentence. Three months later, he was ordered released
    from custody pending the determination of his appeal. The release order
    included a surrender date of July 31, 2015.

[3]

Prior
    to the surrender date, the inmate appeal was converted to a solicitor appeal.

[4]

From
    time to time, over the next fourteen months, several judges of this court
    extended the appellants release order. The most recent order, made on
    September 13, 2016, provided a surrender date of May 1, 2017.

[5]

By
    mid-April, 2017, the solicitor of record perfected the appeal. A hearing was
    scheduled for October 30 of this year.

[6]

Between
    perfection and the surrender date of May 1, 2017, the solicitor of record for
    the appellant advised the respondent that she had had no communication with or
    from the appellant. Further, the appellant failed to surrender on May 1, 2017,
    as required by his recognizance.

[7]

The
    Crown applies for directions under Rule 19 of the
Criminal
    Appeal Rules
seeking three orders:

i.

abridging
    the time to serve and file the notice of motion for directions;

ii.

dismissing
    the appeal from conviction and sentence; and

iii.

under
    ss. 679(6) and 525(5) of the
Criminal Code
to issue a warrant for the
    arrest of the appellant.

[8]

We
    are satisfied that the orders requested should be granted.

[9]

First,
    we see no reason in principle
not
to abridge the time within
    which the notice of motion can be served and filed. The solicitor of record has
    been given notice and asserts no claim of prejudice or other inadequacy. No
    service can be effected on the appellant whose whereabouts are currently
    unknown.

[10]

Second,
    the recognizance on which the appellant was released included, among several
    conditions, the following:

1.
Surrender into custody
    at the institution from which released by 6:00 p.m. on the day before the
    hearing of the appeal or on the 1
st
day of May, 2017 whichever is
    earlier;

2.
Acknowledge that
    failure to surrender into custody in accordance with the terms of this order
    will be deemed to constitute an abandonment of the appeal;

[11]

The
    appellant is in breach of his recognizance. He failed to surrender into custody
    on May 1, 2017, the earlier of that date and October 30 of this year, the date
    scheduled for the hearing of his appeal.

[12]

The
    referential incorporation of s. 525(5) by s. 679(6) of the
Criminal
    Code
authorizes
    the issuance of a warrant for his arrest as a person about whom there are
    reasonable grounds to believe has violated the recognizance on which he has
    been released. A warrant shall issue for his arrest.

[13]

Third,
    the appellant has acknowledged that his failure to surrender into custody, in
    accordance with the terms of his release order, will be deemed to constitute an
    abandonment of his appeal.

[14]

Apart
    from exceptional circumstances, the failure of an appellant to respond to a
    release order, by surrendering into custody in accordance with its terms, will
    almost invariably result in the dismissal of the appeal. See
R.
    v. Dzambas
(1973), 14 C.C.C.  (2d) 364 (Ont. C.A.), at p. 365. We see no reason to depart
    from that practice and principle here.

[15]

In
    the result, an order will issue:

i.

abridging
    the time to serve and file the notion of motion for directions;

ii.

dismissing
    the appellants appeal from conviction and sentence in appeal C60749; and

iii.

issuing
    a warrant for the arrest of the appellant as a person in respect of whom there
    are reasonable grounds to believe has violated his recognizance.

CORRECTED DECISION:

Correction made August 8, 2017: The name of the case of the citation in
    paragraph 14 was corrected from
R. v. Tzambas
to
R. v. Dzambas
.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. El-Kasir, 2017 ONCA 531

DATE: 20170623

DOCKET: M47587, M47698 (M47588) & M47700 (M47589)

Brown J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Fathy El-Kasir

Applicant

Fathy El-Kasir, applicant

Catherine M. Gleason-Mercier, duty counsel

G. Karen Papadopoulos, for the respondent

Heard: June 21, 2016

REASONS FOR DECISION

Overview

[1]

The
    applicant, Mr. Fathy El-Kasir, has brought three motions to extend the time to
    seek leave to appeal from three dismissals by lower appeal courts of his
    convictions on three charges.

Governing Principles

[2]

The
    authority to grant or refuse an extension of time is discretionary. The factors
    taken into account in considering a request for an extension of time were
    summarized by this court in
R. v. Ansari
, 2015 ONCA 891, 128 O.R.
    (3d) 511, at paras. 21 to 27.

Motion M47587

[3]

The
    applicant was convicted on September 29, 1993 by His Honour Judge L.T.G. Collins
    of the Ontario Court (Provincial Division) of assaulting a police officer
    contrary to s. 270(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46. The
    applicant was fined $400. By notice of appeal dated October 28, 1993, the
    applicant appealed to the summary conviction appeal court. He argued the trial
    judge erred in finding the assault was committed, or was intentional, and the
    officer was in the execution of his duty at the time of the assault.

[4]

The
    appeal was dismissed by Justice Murphy of the Ontario Court (General Division)
    on November 24, 1994. Unfortunately, the applicant did not include in his
    motion record a copy of the appeal judges endorsement. His notice of appeal
    states the appeal judge did not give reasons.

[5]

Although
    the applicant did not file an affidavit on this motion explaining why he has
    waited almost 23 years to seek leave to appeal, a September 29, 2014 affidavit
    filed in support of motion M47588 offers an explanation. In it, the applicant
    states that when he attempted to volunteer at the New Canadian Centre, the
    background check of his criminal record disclosed the 1993 conviction. The
    applicant deposed that he did not intend to apply for a pardon. Instead, he had
    decided to commence a proceeding to quash those convictions by the Appellate
    Court as I believe I did nothing wrong to be ashamed of.

[6]

Given
    that evidence, I am not satisfied the justice of the case requires granting an
    extension of time. The applicant has not demonstrated that he formed a
bona fide
intention to seek leave to appeal the 1994 dismissal of his summary conviction appeal
    within the time prescribed for filing the applicable notice. To the contrary,
    his affidavit discloses that for 20 years he had no intention of appealing his
    conviction. The applicants delay in seeking leave to appeal has been
    inordinate and unjustifiable.

[7]

The
    applicants motion for an extension of time to seek leave to appeal the order
    of Murphy J. dated November 24, 1994 is dismissed.

Motions M47698 (M47588) and M47700 (M47589)

[8]

The
    remaining two motions for extensions for time for leave to appeal involve
    offences under the
Provincial
    Offences Act
, R.S.O. 1990, c. P. 33
.

[9]

By
    information dated May 26, 2014, the applicant was charged with failure to leave
    premises when directed contrary to the
Trespass to Property Act
, R.S.O. 1990, c.
    T. 21, s. 2(1)(b)
.

[10]

On
    July 30, 2015, the applicant was convicted by Justice of the Peace J. Mariasine.
    The court found the applicant had refused the request of security officers at
    the Peterborough courthouse to place certain objects in a bin for scanning and
    refused to leave the courthouse when asked to do so. The applicant was fined
    $250 and placed on probation for one year.

[11]

The
    applicant appealed his conviction and sentence to the Ontario Court of Justice.

[12]

The
    second offence involved a November 27, 2014 Certificate of Offence under the
Provincial Offences Act
issued
    to the applicant for entering into premises when entry was prohibited contrary
    to s. 2(1)(a)(i) of the
Trespass to Property Act
. The fine was set at $65.

[13]

On
    July 2, 2015, the applicant was convicted by Justice of the Peace J. Moffatt.
    The complainant, a paralegal, represented some tenants in a building of which
    the applicant was the landlord. The complainant had given notice to the
    applicant that he was not welcome at her premises and should serve any
    documents regarding her clients matters by mail or courier. Documents from the
    applicant were left in the complainants mailbox at her premises. The applicant
    denied entering her property to do so. The court did not accept his explanation
    of events. The court found the applicant had entered the complainants property
    on November 20, 2014 and left documents in her mailbox. In reaching this
    finding, the court relied on a November 22, 2014 email sent by the applicant to
    the complainant in which he stated he had left documents in her mailbox. The
    court imposed a fine of $50.

[14]

The
    applicant appealed this conviction and fine to the Ontario Court of Justice.

[15]

Both
    appeals were heard and dismissed by Justice E. Rosenberg on November 23, 2016.

[16]

In
    respect of the failure to leave premises conviction, the appeal judge concluded
    the trial judge made no error and there was no legitimate basis for the
    constitutional application made by the applicant in the court below.

[17]

In
    respect of the conviction for entry when prohibited, the appeal judge found the
    trial judge applied the correct standard of proof, considered all possible
    defences, and reached a reasonable verdict that was supported by the evidence.

[18]

The
    applicant did not file motions seeking leave to appeal those dismissals within
    the 30 days required by the rules. Instead, he waited over three months, until
    March 6, 2017, to file his notices of motion. These motions for extensions of
    time were filed a month later.

[19]

The
    applicant has not filed an affidavit explaining his delay. However, in his
    notices of motion for leave to appeal, he states he had been sick since the
    unexpected judgment on November 23, 2016. The judgment derived [
sic
] me
    to the state of sickness and isolation.

[20]

I
    am not satisfied that such bald statements, without more, constitute an
    adequate explanation for the applicants delay.

[21]

More
    importantly, the applicants proposed appeals do not meet the high threshold
    for granting leave to appeal under ss. 131 and 139 of the
Provincial
    Offences Act
. In
Antorisa
    Investments Ltd. v. Vaughan (City)
, 2012 ONCA 586, 1 M.P.L.R.
    (5th) 240, Gillese J.A. stated, at para. 8:

The law on s. 131 is well-settled: see, for example,

R. v. Castonguay Blasting Ltd.
,

2011 ONCA 292
    (in Chambers)
, at paras. 14-15
. In
    order for the Applicants to obtain leave, they must establish: (i) special
    grounds; (ii) on a question of law alone; and (iii) that, in the particular
    circumstances of this case, it is essential in the public interest or for the
    due administration of justice that leave be granted.  What constitutes
    special grounds in s. 131(1) is informed by the requirement in s. 131(2) that
    it is essential in the public interest or for the due administration of justice
    that leave be granted.  The threshold for granting leave is very
    high.

[22]

The
    same considerations apply in respect of appeals under s. 139 of the
Provincial Offences Act
.

[23]

The
    applicants proposed appeals do not involve questions of law alone. His notices
    of leave to appeal make clear his main complaint lies with the findings of fact
    made by the trial judges. I am not satisfied there is any merit in the
    applicants leave motions for which he seeks extensions of time:
Ansari
, at
    para. 22.

[24]

Accordingly,
    I dismiss both motions for extensions of time to seek leave to appeal the
    orders of Rosenberg J. dated November 23, 2016 dismissing his appeals of the
    two convictions under the
Provincial Offences Act.

Summary of Dispositions

[25]

For
    the reasons set out above, I dismiss the applicants motions M47587, M47698 and
    M47700 seeking extensions of time to seek leave to appeal.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Floward Enterprises Ltd. (H. Williams and Co.), 2017 ONCA 448

DATE: 20170602

DOCKET: C61163

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Floward Enterprises Ltd. o/a H. Williams and Co.

Applicant (Respondent)

and

The Estate of Martin
    Winberg

(Appellant)

Paul Adam, for the appellant, the Estate of Martin
    Winberg

Jordan Green, for the respondent, Floward Enterprises
    Ltd.

Michael Fawcett, for the respondent, Her Majesty the Queen

Heard: May 1, 2017

On appeal from the order of Justice Nola E. Garton of the Superior
    Court of Justice, dated September 21, 2015.

Gillese J.A.:

OVERVIEW

[1]

As part of a criminal investigation, Toronto
    police seized a valuable diamond from a pawnbroker, believing it was stolen
    property.  They retained the diamond for the duration of the criminal
    proceedings.

[2]

When the criminal proceedings were over, the
    pawnbroker successfully brought an application under ss. 490(7) and (9)(c) of
    the
Criminal Code
, R.S.C. 1985, c. C-46
for
    the return of the diamond.  Section 490 of the
Code

contains a comprehensive set of rules for the detention and
    disposition of property seized by peace officers in the execution of their
    duties.

[3]

The estate of the individual from whom the
    diamond had been stolen appeals, pursuant to s. 490(17).  It was not given
    notice of the application and says that it was entitled to participate in the
    application, given its ownership interest in the diamond.

[4]

For the reasons that follow, I would allow the
    appeal.

BACKGROUND IN BRIEF

[5]

On August 4, 2011, Martin Winberg bought a
    diamond from Guildhall Diamond Investments Inc. for approximately $40,000.  At
    Mr. Winbergs request, an acquaintance agreed to store the diamond at his home.

[6]

Sometime in the spring of 2012, the acquaintance
    told Mr. Winberg that his friend, Brian Colyer, had stolen the diamond.
    Apparently, Mr. Colyer had stolen other things as well.  The thefts were
    promptly reported to the Toronto Police Service.

[7]

The police investigated and soon arrested and
    charged Mr. Colyer.  During the police investigation, the police located the
    diamond at Floward Enterprises Ltd., operating as H. Williams & Company
    (the Pawnbroker).  The police believed that Mr. Colyer had stolen the diamond
    and then pawned it to the Pawnbroker.

[8]

Accordingly, on July 5, 2012, the police took
    possession of the diamond from the Pawnbroker.  It was assigned Property Receipt
    #N956247.  The police retained the diamond throughout the criminal proceedings
    against Mr. Colyer.

[9]

Martin Winberg died on February 19, 2015.

[10]

Around the time that the criminal proceedings
    against Mr. Colyer were concluded, the Pawnbroker learned from the police that
    an individual named Martin Winberg had a potential interest in the diamond
    because he was the person from whom the police believed the diamond had been
    stolen.

[11]

The Pawnbroker wrote letters to the police
    demanding the immediate release of the diamond to it, asserting its entitlement
    to the diamond.  The police did not comply.

[12]

Instead, in a letter dated June 1, 2015,
    addressed to both the lawyer for the deceased and the lawyer for the
    Pawnbroker, the police explained that the prosecution against Mr. Colyer was
    complete, the police no longer needed the diamond, and there were at least two
    adverse claims to it.  In the letter, the police also explained that they were
    not in a position to adjudicate the competing claims to the diamond and that the
    diamond would not be released without either a waiver jointly issued by the
    parties or a court order.

[13]

There was communication between counsel for
    Martin Winbergs estate (the Estate) and counsel for the Pawnbroker about
    entitlement to the diamond.

[14]

By letter dated July 6, 2015, counsel for the
    Pawnbroker advised counsel for the Estate that it would commence legal
    proceedings without further notice if it did not hear from the Estate within 10
    days time.

[15]

On July 20, 2015, counsel for the Pawnbroker
    again wrote to the police demanding the immediate return of the diamond.  The
    police responded with a letter to both parties in which the police refused to
    release the diamond, reiterated that there were two competing claims to it, and
    asked that the parties use the s. 490 process to settle the dispute.

[16]

Michael Winberg is the deceaseds brother.  He
    was appointed the Estate trustee by a certificate of appointment of estate
    trustee with a will annexed, issued on September 11, 2015.

[17]

By application dated September 14, 2015, and
    brought under ss. 490(7) and (9)(c) of the
Code

(the Application), the Pawnbroker sought a court order requiring
    the police to return the diamond to it.  The Pawnbroker did not give the Estate
    notice of its Application.  The written material filed on the Application was
    brief and did not mention the Estate or the fact that the Estate was laying claim
    to the diamond.

[18]

The Application was heard on September 21,
    2015.  The Pawnbroker did not tell the court that there was another interested
    party who might challenge the return of the diamond to it.  Instead, counsel
    for the Pawnbroker stated:

So what we have here is a simple application
    for return property under s. 497 [
sic
] and 499(c) [
sic
].  The
    property was a diamond. It was seized by police almost three years ago and held
    for investigation.  I understand that the investigation is now complete and we
    just want the property returned.  It was, it was against a third party that it
    was seized for the investigation.

[19]

Counsel for the Crown appeared on the
    Application.  She took no position on it but offered the court background information
    about the underlying theft investigation.  She advised the court that the
    diamond had been taken from the deceased and pawned to the Pawnbroker, from
    whom the police had seized it.  She also advised the court that she had seen
    some letters that morning which suggested that counsel for the Pawnbroker had
    attempted to contact the deceaseds brother.

[20]

Counsel for the Pawnbroker then made the
    following comment to the court:

If it pleases the court, under this
    application no notice is required to be given to the brother. That being said,
    out of abundance of caution, we have contacted counsel for the [E]state and
    have received no reply and let them know that we would be proceeding for return
    of the property.

[21]

The Application was granted and by order dated
    September 21, 2015 (the Order), the police were required to release the
    diamond to the Pawnbroker.

[22]

The police forwarded a copy of the Order to the
    Estate.  The Estate moved quickly to bring this appeal.

THE PARTIES POSITIONS

[23]

The Estate claims that it was entitled to participate
    in the Application, given its ownership interest in the diamond.  It says that,
    in the circumstances, the application judge erred in law in deciding the
    Application without requiring that notice be given to it.  The Estate also filed
    fresh evidence on the appeal.  On the basis of the fresh evidence, the Estate asks
    this court to order that the diamond be returned to it.

[24]

The Pawnbroker says that the appeal should be
    dismissed because the Estate failed to assert its interest in the diamond with
    diligence and it should be estopped from asserting any interest now.  The
    Pawnbroker, too, filed fresh evidence to explain the factual circumstances
    leading up to the Application and to buttress its claim to entitlement to the
    diamond.

[25]

The Crown took a limited role on the appeal.  It
    took no position as to which party is the rightful owner of the diamond nor did
    it take a position on the factual disputes between the claimants.  Its sole
    interest is to protect the integrity of the s. 490 process.  The Crown
    submits that the Pawnbroker failed to make full and frank disclosure in its
    Application and, as a result, it asks this court to set aside the Order.

THE ISSUES

[26]

The central issue on this appeal is whether the Order must be set aside
    as a result of the Application being decided in the absence of full and frank
    disclosure by the Pawnbroker.  If so, the court must also decide whether to
    accede to the Estates request for an order that the diamond be returned to it.

THE RELEVANT LEGISLATIVE PROVISIONS

[27]

Section 490 is set out in full in Schedule A
    to these reasons.  Sections 490(7), (9) and (10) are the most critical
    provisions for the disposition of this appeal.  They read as follows:

(7)
A
    person from whom anything has been seized may, after the expiration of the
    periods of detention provided for or ordered under subsections (1) to (3) and
    on three clear days notice to the Attorney General, apply summarily to

(a)
a judge of a superior court of
    criminal jurisdiction or a judge as defined in section 552, where a judge
    ordered the detention of the thing seized under subsection (3), or

(b)
a justice, in any other case,

for an order under paragraph (9)(c) that the thing seized be
    returned to the applicant.

(9)
Subject
    to this or any other Act of Parliament, if

(a)
a judge referred to in subsection
    (7), where a judge ordered the detention of anything seized under subsection
    (3), or

(b)
a justice, in any other case,

is satisfied that the periods of detention provided for or
    ordered under subsections (1) to (3) in respect of anything seized have expired
    and proceedings have not been instituted in which the thing detained may be
    required or, where those periods have not expired, that the continued detention
    of the thing seized will not be required for any purpose mentioned in
    subsection (1) or (4), he shall

(c)
if possession of it by the person
    from whom it was seized is lawful, order it to be returned to that person, or

(d)
if possession of it by the person
    from whom it was seized is unlawful and the lawful owner or person who is
    lawfully entitled to its possession is known, order it to be returned to the
    lawful owner or to the person who is lawfully entitled to its possession,

and may, if possession of it by the person from whom it was
    seized is unlawful, or if it was seized when it was not in the possession of
    any person, and the lawful owner or person who is lawfully entitled to its
    possession is not known, order it to be forfeited to Her Majesty, to be
    disposed of as the Attorney General directs, or otherwise dealt with in
    accordance with the law.

(10)
Subject
    to this or any other Act of Parliament, a person, other than a person who may
    make an application under subsection (7), who claims to be the lawful owner or
    person lawfully entitled to possession of anything seized and brought before or
    reported to a justice under section 489.1 may, at any time, on three clear days
    notice to the Attorney General and the person from whom the thing was seized,
    apply summarily to

(a)
a judge referred to in subsection
    (7), where a judge ordered the detention of the thing seized under subsection
    (3), or

(b)
a justice, in any other case,

for an order that the thing detained be returned to the
    applicant.

ANALYSIS

[28]

To resolve the issue raised on this appeal, one
    must consider the notice requirements in s. 490.  Before doing so, however, it
    is necessary to consider ss. 489.1 and 490 of the
Code

more broadly.

[29]

Sections 489.1 and 490 contain a comprehensive
    set of rules for preserving and disposing of property seized by peace officers
    in the execution of their duties.  Section 489.1 governs the front end of the
    process, in that it sets out the obligations on a peace officer who has seized
    property.   Section 489.1 is not directly relevant to the matters in issue in
    this appeal.  Section 490 provides for the judicial supervision of the
    continued detention and ultimate disposition of the seized property.

[30]

In
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1, at paras. 98-114, this court sets out
    the history, scheme and legislative context of ss. 489.1 and 490.  One objective
    in adding s. 489.1 and changing the wording of s. 490 was to facilitate the
    return of items seized to their rightful owners (para.107).  Where things have
    been brought before a justice or a report made to a justice in respect of
    anything seized under s. 489.1, there is an obligation on the court to
    supervise its detention (para. 112).  Furthermore, s. 490 is an elaborate
    scheme to facilitate the return of items seized to their lawful owners (para.
    112).

[31]

The overall purpose of s. 490, as reflected in s.
    490(1), is to ensure that, subject to judicial supervision, police return a seized
    item to the lawful owner or person lawfully entitled to its possession when its
    continued detention is not required for the purposes of an investigation or
    court proceeding.

[32]

Subsection 490(10) gives anyone claiming to be
    the lawful owner or a person lawfully entitled to possession of seized property
    the right to apply for its return:

(10)
Subject
    to this or any other Act of Parliament,
a person
, other than a person
    who may make an application under subsection (7),
who claims to be the
    lawful owner or person lawfully entitled to possession of anything seized
and brought before or reported to a justice under section 489.1
may
, at
    any time,
on three clear days

notice to the Attorney General and the
    person from whom the thing was seized, apply summarily
to

(a)
a judge referred to in subsection
    (7), where a judge ordered the detention of the thing seized under subsection
    (3), or

(b)
a justice, in any other case,

for an order that the thing detained be returned to the
    applicant.
[Emphasis added.]

[33]

On a plain reading of s. 490(10), an application
    brought pursuant to it requires that notice be given both to the Attorney
    General and to the person from whom the thing was seized.

[34]

Where the applicant is the person from whom the
    thing was seized, the application may be brought pursuant to s. 490(7).  The
    relevant parts of s. 490(7) read as follows:

(7)

A
    person from whom anything has been seized may,  on
three clear days
notice to the Attorney General
, apply summarily to

(a)
a judge of a
    superior court of criminal jurisdiction or

(b)
a
    justice

for an
    order under paragraph (9)(c) that the thing seized be returned to the
    applicant.  [Emphasis added.]

[35]

On a plain reading of s. 490(7), where the
    person from whom the thing has been seized makes the application, that person
    need give notice only to the Attorney General.

Application to the Present Case

[36]

In this case, the Pawnbroker brought the
    Application pursuant to ss. 490(7) and 490(9)(c).  Because the Pawnbroker was the
    person from whom the diamond had been seized, it was entitled to bring its
    application under those provisions.  As noted above, s. 490(7) required the Pawnbroker
    to give notice only to the Attorney General.  It did so.

[37]

I have taken pains to explain the notice
    provisions in s. 490 to address the question of whether the Application was
    made on an ex parte

basis.  The Estate and the Crown have referred to
    the Application as being made on an
ex parte
basis, to which the
    Pawnbroker takes exception.  The Pawnbroker says that s. 490(7) required it to
    give notice to the Attorney General and it did so.  Therefore, it contends, it
    is not appropriate to treat the Application as if it were made on an
ex
    parte
basis.

[38]

I agree with the Pawnbroker that it met the
    notice requirements in s. 490(7).  However, in my view, the Application was made
    on an
ex parte
basis.

[39]

In
Ruby v. Canada (Solicitor General)
, 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 25, the Supreme Court of
    Canada held:

Ex parte
, in a
    legal sense,

means a proceeding, or a procedural step, that is taken or
    granted at the instance of and for the benefit of one party only, without
    notice to or argument by any adverse party.

[40]

In this case, the proceeding (Application) was
    taken at the instance of the Pawnbroker and for its benefit only.  Notice was
    given to the Attorney General.  However, the Attorney General was not an
    adverse party  it was a neutral third party.  No adverse party had notice and
    none was present to argue at the Application.  Therefore, in my view, the
    Application was brought and decided on an
ex parte
basis.

[41]

Consequently, as the Supreme Court stated at
    para. 27 of
Ruby
, the Pawnbroker was under a duty of utmost good faith
    in the representations that it made to the court:

In all cases where a party is before the court
    on an
ex parte
basis, the party is under a duty of utmost good faith in
    the representations that it makes to the court.  The evidence presented must be
    complete and thorough and no relevant information adverse to the interest of
    that party may be withheld.  Virtually all codes of professional conduct impose
    such an ethical obligation on lawyers. [Citations omitted.]

[42]

The need for an applicant to make full and frank
    disclosure in a s. 490 application is acute.  On such an application, the court
    is tasked with providing judicial oversight to achieve the ultimate goal that a
    thing seized by peace officers is returned to the lawful owner or person
    lawfully entitled to its possession when the thing is no longer required for
    any criminal investigation or proceeding.  By its own terms, the application
    process is done summarily.  Furthermore, as I have explained, the process under
    s. 490(7) is an
ex parte

one.  As the Crown
    points out, absent the requirement of full and frank disclosure, an application
    under s. 490(7) would allow a party to assert its claim unchallenged, while concealing
    information about others who would assert their claims if given an opportunity.

[43]

Although made in the context of a motion for a
Mareva

injunction, the comments of
Sharpe J. (as he then
    was) in
United States of America. v. Friedland
, [1996] O.J. No. 4399,
    1996 CarswellOnt 5566 (Ont. C.J. (Gen. Div.)), at para. 26, reproduced in
    Robert J. Sharpe,
Injunctions and Specific Performance
, loose-leaf
    (Rel. Nov. 2016), 4th ed. (Toronto: Canada Law Book, 2012), at para. 2.40, are
    apposite:

It is a well-established principle of our law that a party who
    seeks the extraordinary relief of an
ex parte
injunction must make full
    and frank disclosure of the case.  The rationale for this rule is obvious.  The
    Judge hearing an
ex parte
motion and the absent party are literally at
    the mercy of the party seeking injunctive relief.  The ordinary checks and
    balances of the adversary system are not operative.  The opposite party is
    deprived of the opportunity to challenge the factual and legal contentions advanced
    by the moving party in support of the injunction.  The situation is rife with
    the danger that an injustice will be done to the absent party.

[44]

I
n order for the court to properly fulfill its supervisory
    role and achieve the purpose of s. 490  to see that seized things are returned
    to their lawful owners or those lawfully entitled to their possession once they
    no longer are required for any criminal investigation or proceeding  judges
    hearing applications under s. 490(7) must be able to rely on applicants to have
    made full and frank disclosure.  Only through such disclosure can the court
    make informed decisions about, among other things, whether other interested
    parties must be given notice of the proceeding.

[45]

In my view, there is no question that the Pawnbroker
    failed to make full and frank disclosure.  In its written materials and oral
    submissions on the Application, the Pawnbroker failed to disclose material
    facts to the court, including: the Estates claim of an interest in the
    diamond; the Estates intention to assert its claim; its own
unsuccessful
    attempts to secure the diamonds release from police; the polices refusal to
    release the diamond because of two adverse claims to the property; and, that
    the Estate had confirmed its interest in the diamond to the police.

[46]

Accordingly, the Order must be set
    aside.

THE REMEDY

[47]

For the reasons given, I would allow the appeal.
    However, I would not order that the diamond be returned to the Estate.  There
    are serious, complicated factual and legal disputes between the Estate and the
    Pawnbroker that must be resolved to determine entitlement to the diamond.  The
    record before this court is wholly inadequate to make such a determination.

DISPOSITION

[48]

Accordingly, I would allow the appeal and set
    aside the Order.

[49]

Both the Estate and the Pawnbroker sought costs of
    the appeals in their factums.  Neither addressed the matter of costs at the
    oral hearing of the appeal.  If the parties wish to pursue the matter of costs,
    they shall file written submissions within fourteen days of the date of the
    release of these reasons, such submissions to be no more than four pages in
    length and to include a statement of this courts jurisdiction to make an award
    of costs in the circumstances of this case and the test for awarding the same.

Released: EEGJune 2, 2017

E.E. Gillese J.A.

I agree. Grant Huscroft J.A.

I agree. G.T. Trotter J.A.

SCHEDULE A:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 490

Detention of
    things seized

490

(1)
Subject
    to this or any other Act of Parliament, where, pursuant to paragraph
    489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought
    before a justice or a report in respect of anything seized is made to a
    justice, the justice shall,

(a)
where the lawful owner or person
    who is lawfully entitled to possession of the thing seized is known, order it
    to be returned to that owner or person, unless the prosecutor, or the peace
    officer or other person having custody of the thing seized, satisfies the
    justice that the detention of the thing seized is required for the purposes of
    any investigation or a preliminary inquiry, trial or other proceeding; or

(b)
where the prosecutor, or the peace
    officer or other person having custody of the thing seized, satisfies the
    justice that the thing seized should be detained for a reason set out in
    paragraph (a), detain the thing seized or order that it be detained, taking
    reasonable care to ensure that it is preserved until the conclusion of any
    investigation or until it is required to be produced for the purposes of a
    preliminary inquiry, trial or other proceeding.

Further
    detention

(2)
Nothing shall be detained under
    the authority of paragraph (1)(b) for a period of more than three months after
    the day of the seizure, or any longer period that ends when an application made
    under paragraph (a) is decided, unless

(a)
a justice, on the making of a
    summary application to him after three clear days notice thereof to the person
    from whom the thing detained was seized, is satisfied that, having regard to
    the nature of the investigation, its further detention for a specified period
    is warranted and the justice so orders; or

(b)
proceedings
    are instituted in which the thing detained may be required.

Idem

(3)
More than one order for further
    detention may be made under paragraph (2)(a) but the cumulative period of
    detention shall not exceed one year from the day of the seizure, or any longer
    period that ends when an application made under paragraph (a) is decided,
    unless

(a)
a judge of a superior court of
    criminal jurisdiction or a judge as defined in section 552, on the making of a
    summary application to him after three clear days notice thereof to the person
    from whom the thing detained was seized, is satisfied, having regard to the
    complex nature of the investigation, that the further detention of the thing
    seized is warranted for a specified period and subject to such other conditions
    as the judge considers just, and the judge so orders; or

(b)
proceedings
    are instituted in which the thing detained may be required.

Detention
    without application where consent

(3.1)
A thing may be detained under
    paragraph (1)(b) for any period, whether or not an application for an order
    under subsection (2) or (3) is made, if the lawful owner or person who is
    lawfully entitled to possession of the thing seized consents in writing to its
    detention for that period.

When
    accused ordered to stand trial

(4)
When an accused has been ordered
    to stand trial, the justice shall forward anything detained pursuant to
    subsections (1) to (3) to the clerk of the court to which the accused has been
    ordered to stand trial to be detained by the clerk of the court and disposed of
    as the court directs.

Where
    continued detention no longer required

(5)
Where at any time before the
    expiration of the periods of detention provided for or ordered under
    subsections (1) to (3) in respect of anything seized, the prosecutor, or the
    peace officer or other person having custody of the thing seized, determines
    that the continued detention of the thing seized is no longer required for any
    purpose mentioned in subsection (1) or (4), the prosecutor, peace officer or
    other person shall apply to

(a)
a
    judge of a superior court of criminal jurisdiction or a judge as defined in q        section
    552, where a judge ordered its detention under subsection (3), or

(b)
a
    justice, in any other case,

who
    shall, after affording the person from whom the thing was seized or the person
    who claims to be the lawful owner thereof or person entitled to its possession,
    if known, an opportunity to establish that he is lawfully entitled to the
    possession thereof, make an order in respect of the property under subsection
    (9).

Idem

(6)
Where the periods of detention
    provided for or ordered under subsections (1) to (3) in respect of anything
    seized have expired and proceedings have not been instituted in which the thing
    detained may be required, the prosecutor, peace officer or other person shall
    apply to a judge or justice referred to in paragraph (5)(a) or (b) in the
    circumstances set out in that paragraph, for an order in respect of the
    property under subsection (9) or (9.1).

Application
    for order of return

(7)
A person from whom anything has
    been seized may, after the expiration of the periods of detention provided for
    or ordered under subsections (1) to (3) and on three clear days notice to the
    Attorney General, apply summarily to

(a)
a judge of a superior court of
    criminal jurisdiction or a judge as defined in section 552, where a judge
    ordered the detention of the thing seized under subsection (3), or

(b)
a
    justice, in any other case,

for
    an order under paragraph (9)(c) that the thing seized be returned to the
    applicant.

Exception

(8)
A judge of a superior court of
    criminal jurisdiction or a judge as defined in section 552, where a judge
    ordered the detention of the thing seized under subsection (3), or a justice,
    in any other case, may allow an application to be made under subsection (7)
    prior to the expiration of the periods referred to therein where he is
    satisfied that hardship will result unless the application is so allowed.

Disposal
    of things seized

(9)
Subject to this or any other Act
    of Parliament, if

(a)
a judge referred to in subsection
    (7), where a judge ordered the detention of anything seized under subsection
    (3), or

(b)
a
    justice, in any other case,

is
    satisfied that the periods of detention provided for or ordered under
    subsections (1) to (3) in respect of anything seized have expired and
    proceedings have not been instituted in which the thing detained may be
    required or, where those periods have not expired, that the continued detention
    of the thing seized will not be required for any purpose mentioned in
    subsection (1) or (4), he shall

(c)
if possession of it by the person
    from whom it was seized is lawful, order it to be returned to that person, or

(d)
if possession of it by the person
    from whom it was seized is unlawful and the lawful owner or person who is
    lawfully entitled to its possession is known, order it to be returned to the
    lawful owner or to the person who is lawfully entitled to its possession,

and
    may, if possession of it by the person from whom it was seized is unlawful, or
    if it was seized when it was not in the possession of any person, and the
    lawful owner or person who is lawfully entitled to its possession is not known,
    order it to be forfeited to Her Majesty, to be disposed of as the Attorney
    General directs, or otherwise dealt with in accordance with the law.

Exception

(9.1)
Notwithstanding subsection (9), a
    judge or justice referred to in paragraph (9)(a) or (b) may, if the periods of
    detention provided for or ordered under subsections (1) to (3) in respect of a
    thing seized have expired but proceedings have not been instituted in which the
    thing may be required, order that the thing continue to be detained for such
    period as the judge or justice considers necessary if the judge or justice is
    satisfied

(a)
that the continued detention of
    the thing might reasonably be required for a purpose mentioned in subsection
    (1) or (4); and

(b)
that
    it is in the interests of justice to do so.

Application
    by lawful owner

(10)
Subject to this or any other Act
    of Parliament, a person, other than a person who may make an application under
    subsection (7), who claims to be the lawful owner or person lawfully entitled
    to possession of anything seized and brought before or reported to a justice
    under section 489.1 may, at any time, on three clear days notice to the
    Attorney General and the person from whom the thing was seized, apply summarily
    to

(a)
a judge referred to in subsection
    (7), where a judge ordered the detention of the thing seized under subsection
    (3), or

(b)
a
    justice, in any other case,

for
    an order that the thing detained be returned to the applicant.

Order

(11)
Subject to this or any other Act
    of Parliament, on an application under subsection (10), where a judge or
    justice is satisfied that

(a)
the applicant is the lawful owner
    or lawfully entitled to possession of the thing seized, and

(b)
the periods of detention provided
    for or ordered under subsections (1) to (3) in respect of the thing seized have
    expired and proceedings have not been instituted in which the thing detained
    may be required or, where such periods have not expired, that the continued
    detention of the thing seized will not be required for any purpose mentioned in
    subsection (1) or (4),

the
    judge or justice shall order that

(c)
the
    thing seized be returned to the applicant, or

(d)
except as otherwise provided by
    law, where, pursuant to subsection (9), the thing seized was forfeited, sold or
    otherwise dealt with in such a manner that it cannot be returned to the
    applicant, the applicant be paid the proceeds of sale or the value of the thing
    seized.

Detention
    pending appeal, etc.

(12)
Notwithstanding anything in this
    section, nothing shall be returned, forfeited or disposed of under this section
    pending any application made, or appeal taken, thereunder in respect of the
    thing or proceeding in which the right of seizure thereof is questioned or
    within thirty days after an order in respect of the thing is made under this
    section.

Copies
    of documents returned

(13)
The Attorney General, the
    prosecutor or the peace officer or other person having custody of a document
    seized may, before bringing it before a justice or complying with an order that
    the document be returned, forfeited or otherwise dealt with under subsection
    (1), (9) or (11), make or cause to be made, and may retain, a copy of the
    document.

Probative
    force

(14)
Every copy made under subsection
    (13) that is certified as a true copy by the Attorney General, the person who
    made the copy or the person in whose presence the copy was made is admissible
    in evidence and, in the absence of evidence to the contrary, has the same
    probative force as the original document would have if it had been proved in
    the ordinary way.

Access
    to anything seized

(15)
Where anything is detained
    pursuant to subsections (1) to (3.1), a judge of a superior court of criminal
    jurisdiction, a judge as defined in section 552 or a provincial court judge
    may, on summary application on behalf of a person who has an interest in what
    is detained, after three clear days notice to the Attorney General, order that
    the person by or on whose behalf the application is made be permitted to
    examine anything so detained.

Conditions

(16)
An order that is made under
    subsection (15) shall be made on such terms as appear to the judge to be
    necessary or desirable to ensure that anything in respect of which the order is
    made is safeguarded and preserved for any purpose for which it may subsequently
    be required.

Appeal

(17)
A person who feels aggrieved by an
    order made under subsection (8), (9), (9.1) or (11) may appeal from the order

(a)
to the court of appeal as defined
    in section 673 if the order was made by a judge of a superior court of criminal
    jurisdiction, in which case sections 678 to 689 apply with any modifications
    that the circumstances require; or

(b)
to the appeal court as defined in
    section 812 in any other case, in which case sections 813 to 828 apply with any
    modifications that the circumstances require.

Waiver
    of notice

(18)
Any person to whom three days
    notice must be given under paragraph (2)(a) or (3)(a) or subsection (7), (10)
    or (15) may agree that the application for which the notice is given be made
    before the expiration of the three days.

R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s.
    73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. French, 2017 ONCA 460

DATE: 20170606

DOCKET: C55648

Feldman, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David French

Appellant

David French, acting in person

Jill R. Presser and Andrew Menchynski, appearing as
amicus
    curiae

Roger Pinnock, for the respondent

Heard: May 12, 2017

On appeal from the conviction entered on July 15, 2010
    and the sentence imposed on October 20, 2010 by Justice Gladys I. Pardu of the Superior
    Court of Justice, sitting with a jury.

Feldman J.A.:

Overview

[1]

The appellant was convicted by a jury of second degree murder of his
    common law partner. The trial judge imposed a 17 year period of parole
    ineligibility. The appellant appeals both his conviction and sentence. Written
    and oral submissions were made by
amicus
as well as by the appellant.

[2]

Amicus
raised two grounds of appeal against conviction. The
    first related to the trial judges treatment of new evidence that emerged
    during jury deliberations. The second error alleged is that the trial judge
    erred by improperly limiting the cross-examination of the officer-in-charge. The
    appellant also appeals against sentence, supported by
amicus
. In
    addition, he advanced on his own a number of arguments regarding his
    conviction.

[3]

We do not accept either
    of
amicus
grounds of
    appeal, nor do we accept the appellants. For the reasons that follow, the
    appeal is dismissed.

Background

[4]

The victim was found in an armoire with ligature marks around her neck
    and threads from a blue terry cloth bathrobe. When the appellant was initially
    interviewed by the police, he denied any involvement. They asked about a
    bathrobe. He said he had a blue one but did not know where it was, but he
    thought it was either at the victims apartment where he and the victim had
    lived or at his grandmothers.

[5]

A few weeks later, after visiting a religious ministry, the appellant
    walked into a police detachment in Niagara, refused the offer of a lawyer, and
    confessed to the murder, saying that he had strangled the victim with his hands
    and with the blue bathrobe. He later returned and cut her down. The appellant
    was charged with first degree murder.

[6]

At his trial, the appellant recanted his confession. His explanation
    for confessing falsely was to prevent the victims death being ruled a suicide
    so that her son would not be denied insurance proceeds, and to obtain
    disclosure of police files to find the real killer, who he believed was an
    enemy of his from organized crime.

[7]

The day after the case went to the jury and while they were in the
    course of deliberating, the victims mother, who was not present during the
    charge, read the jury charge and learned for the first time that the weapon was
    a blue bathrobe. She told the Crown that she had found a blue terry robe
    belonging to the appellant at the victims home, following the murder, and
    threw it out along with some other clothes belonging to the appellant. The
    Crown advised defence counsel and the trial judge.

[8]

The Crown asked for a mistrial. Defence counsel consulted with the
    appellant, considered the matter overnight and told the trial judge that the
    defence agreed that the new evidence had to be placed before the jury, but that
    the defence did not want a mistrial. He submitted that his client was in
    custody and wanted the trial to continue. The trial judge accepted the position
    of the defence and ruled that the jury would be given the evidence but no
    mistrial would be declared. The evidence was put before the jury by an agreed
    statement of facts. Both counsel made brief addresses on the significance of
    the new evidence, and the trial judge gave a brief recharge, following which
    the jury continued its deliberations.

Amicus
First Ground of Appeal Against Conviction

[9]

Amicus
now submits that the trial judge erred by failing to
    order a mistrial in light of the prejudicial effect of the new evidence and the
    Crowns address to the jury on its significance. Alternatively,
amicus
submits
    the trial judge erred by failing to instruct the jury to recommence their
    deliberations from the beginning.

[10]

We
    do not agree that the trial judge erred by failing to declare a mistrial.

[11]

It
    is clear from the record that the defence wanted the evidence to be given to
    the jury and did not want a mistrial. We agree that ultimately the decision was
    for the trial judge and that prejudice to the accused is the prime
    consideration. However, where the defence makes its position very clear, the
    trial judge is entitled to accept that the defence does not believe that the
    course of action proposed will be prejudicial to the accused.

[12]

The
    appellant was at the end of a seven-week trial. Declaring a mistrial would have
    caused substantial further delay. We would expect a trial judge acting
    judicially to accept the position of the defence unless she saw some potential
    prejudice that would override consideration of the wishes of the accused.

[13]

Amicus
submits the trial judge misunderstood the potential prejudice the new evidence
    posed to the accused. The trial judge only admitted the new evidence on the
    understanding that it could not help the Crown, but in fact the evidence cut
    both ways.

[14]

A
    close examination of the record discloses that although the trial judge did
    state during her ruling the evidence could not help the Crown, when Crown
    counsel previewed what she intended to tell the jury, her proposed submissions
    were that the evidence bolstered the Crowns case in a number of ways. It
    enhanced the credibility of the victims mother who had testified that there
    had been problems between the victim and the appellant, and it supported the
    Crowns position that the appellant had told the truth when he confessed to
    killing the victim using the blue robe.

[15]

In
    response, both the trial judge and defence counsel acknowledged that they
    expected the Crown would take those positions with the jury. Therefore, they
    knew that the jury could draw both exculpatory and an inculpatory inferences
    from the new evidence.

[16]

Amicus
also submits that the new evidence should not have been disclosed to the jury
    because by the time it came to light, the jury had already reached the point in
    their deliberations where they had determined that the appellant was the
    killer. This was clear, they submit, from the jurys early question about the
    evidence that would disclose the appellants state of mind, together with the
    explicit jury instructions directing the jury to decide the issues in order,
    first determining whether the appellant had caused the death of the victim
    before turning to his state of mind.

[17]

Amicus
submits that it was therefore too late to introduce new evidence and expect the
    jury to be able to consider it as exculpatory of the appellant. Further, in her
    recharge, the trial judge failed to tell the jury that they now had to start
    their deliberations from the beginning. Both these errors caused irreparable
    prejudice to the appellant.

[18]

We
    do not accept this submission. We agree with the Crown that it is not possible
    to know what stage the jury had reached in its deliberations just because of
    the question it asked. They could well have been doing an overview of the
    issues before beginning to address them sequentially as instructed by the trial
    judge. This is consistent with this courts judgment in
R. v. Parks
(1993), 84 C.C.C. (3d) 353 (Ont. C.A.). During jury deliberations in
Parks
,
    the trial judge made corrections to the charge after the jury had already asked
    a question about provocation. On appeal, the appellant submitted that the
    question indicated the jury had already found against the appellant on the
    issue of identity. In rejecting this submission, Doherty J.A. explained at p.
    358:

I cannot agree with the appellant's submission. That submission
    requires that I assume the jury
had
reached a
    definite conclusion that the appellant had killed the deceased. It also
    requires that I assume that because the jury had reached that conclusion, they
    chose to pay no heed to the corrections made by the trial judge. I will neither
    speculate as to what findings, if any, the jury had made when it addressed its
    second question to the trial judge, nor assume that the jury did not listen to
    his corrections and consider those corrections in their subsequent
    deliberations. This ground of appeal fails.

[19]

We
    also agree with the Crown that the decision of Trotter J. (as he then was) in
R.
    v. Drysdale
, 2011 ONSC 5451, 275 C.C.C. (3d) 219, is distinguishable. In that
    case, the trial judge in a judge-alone trial had already rendered his verdict
    and reasons for decision including negative credibility findings regarding the
    accused by the time the new evidence emerged. Trotter J. indicated that he
    could not consider the new evidence appropriately at that stage of the
    proceedings, and that if his findings remained unchanged, his decision may not
    have the appearance of fairness. In contrast, in this case, when the new
    evidence was given to the jury, no verdict had been reached and the jury was in
    the course of its deliberations. The concerns expressed by Trotter J. therefore
    did not arise.

[20]

Further,
    we do not accept that the trial judge erred by failing to tell the jury that
    they now had to start their deliberations from the beginning. The evidence was
    put before the jury in a neutral manner as an agreed statement of facts. The
    trial judge gave brief instructions that told the jury to consider the new
    evidence as part of the evidence as a whole. We see no error in her instructions.

Amicus
 Second
    Ground of Appeal against Conviction

[21]

Amicus

    second ground of appeal against conviction is that the trial judge erred by not
    allowing the appellant to cross-examine one of the lead police investigators
    about information from a confidential informant that the appellant had ties to
    organized crime and enemies in the organized crime community. The defence
    wanted this evidence to rebut a Crown allegation of recent fabrication in
    connection with the appellants recantation and his allegation that one of his
    enemies had committed the murder. The trial judge refused to allow the
    cross-examination because it would only elicit hearsay, and no proper
    application had been brought based on necessity and reliability.

[22]

On
    appeal,
amicus
argues that the trial judge erred in holding the
    defence sought to adduce this evidence for a hearsay purpose. The evidence
    could have been admitted only for the fact that it was said to rebut the
    allegation of recent fabrication. The defence did not seek to admit the
    statement for the truth of its contents.

[23]

We
    reject this submission and agree with the trial judge that the evidence was
    hearsay and had to go in for the truth of its contents to corroborate the
    appellants evidence. The appellants trial counsel specifically stated that he
    sought to adduce this evidence as some corroboration for the information that
    David French had given to the authorities.

[24]

Likewise,
    in the circumstances of this case, this statement was not admissible to rebut
    an allegation of recent fabrication.

[25]

Setting
    aside the fact that the informants information was not a prior consistent
    statement by Mr. French himself, the Crown was not making an allegation of
    recent fabrication. On the application, Crown counsel confirmed that in
    cross-examination they would not suggest to the appellant this is the first
    time youre saying that.  And the Crown never did so. Although Crown counsel
    ultimately suggested Mr. French was not telling the truth, the Crown did not
    suggest to him that he had changed his story because of a new motive to lie. Put
    simply, the allegation was merely one of fabrication, not recent fabrication.
    For that reason, the prior statement had no probative value unless it was true.
    It was either irrelevant or hearsay.

[26]

The
    trial judge also left it open for the appellant to renew the application, if a
    proper foundation were laid for it,  but he did not do so.

[27]

Amicus
also complains that in Crown counsels cross-examination of the appellant and
    during her closing submissions, she impugned the appellants veracity with
    respect to his suggestion that he had enemies in biker gangs, contrary to her
    earlier assertion that she did not propose to do that but only to suggest the
    implausibility of his stated reason for falsely confessing to the murder. While
    the Crown may have marginally overstepped her stated intent, she was entitled
    to challenge the appellant on this crucial issue. And as noted, the appellant
    did not then seek to renew the application to have the jury hear from the
    police officer a report of what the confidential informer had said about the
    appellants biker connections. We therefore reject this ground of appeal.

The Sentence Appeal

[28]

Amicus
also supports the appellants appeal against sentence.
Amicus
submits
    that the trial judge erred in principle by imposing a 17 year parole
    ineligibility term which was outside the range of 12 to 15 years set by this
    court in
McKnight
(1999), 135 C.C.C. (3d) 41 (Ont. C.A.).
Amicus
submits that if 17 years was in the range, the sentence is manifestly unfit.
    The trial judge also erred by finding that the murder was planned and treating
    that as an aggravating factor, when the jury acquitted the appellant of first
    degree murder.

[29]

In
    our view, the trial judge made no errors in principle in imposing the 17 year
    parole ineligibility period.

[30]

As
    first degree murder requires both planning and deliberation, the trial judge
    was entitled to accept the appellants confession that he planned the murder,
    while accepting that the jurys acquittal from first degree murder suggested
    that they found no deliberation. The jury was instructed that a deliberate act
    is one that the actor has taken time to weigh the advantages and disadvantages
    of and is a considered and carefully thought out act. Although it will
    doubtless be rare for a jury to find lengthy planning without deliberation, the
    two findings are not
prima facie
incompatible or contradictory. We see
    no basis to interfere with the trial judges conclusion.

[31]

With
    respect to the range, cases from this court including
R. v. Wristen
(1999), 141 C.C.C. (3d) 1, and
R. v. Czibulka
, 2011 ONCA 82, 267
    C.C.C. (3d) 276, allow a range up to 17 years in circumstances where there are
    no mitigating factors or remorse. The trial judges determination is entitled
    to deference. The sentence was not unfit.

The Appellants Additional Issues

[32]

The
    appellant based his submissions substantially on the ground that his s. 7
Charter
rights had been infringed by the police before the death of the victim and by
    the unjust treatment he says he has suffered while incarcerated. He also raises
    issues regarding how the evidentiary record was developed at trial, but these
    could only be addressed if a new trial were to be ordered. The appellant would
    like his s. 7
Charter
rights to be determined by the Supreme Court of
    Canada, and seeks the remedy of a stay or acquittal based on the s. 7
Charter
breaches.

[33]

As
    there was no s. 7
Charter
issue raised at trial, and no record on
    which a
Charter
issue could be discussed or determined, there is no
    basis for this court to address a s. 7
Charter
issue or to grant the
    remedy requested.

Conclusion

[34]

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

Released: K.F. June 6, 2017

K.
    Feldman J.A.

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

I agree. M.L. Benotto J.A


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Giamou, 2017 ONCA 466

DATE: 20170606

DOCKET: C60925

Epstein, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Danny Giamou

Appellant

Tina Yuen, for the appellant

Jeremy Streeter, for the respondent

Heard: May 30, 2017

On appeal from the conviction entered on February 23,
    2015 by Justice Kathleene J. Caldwell of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for
    the purpose of trafficking and assault. The relevant events took place in a
    parking lot.

[2]

The appellant was arrested (pursuant to a
    citizens arrest) by two Toronto Parking Authority (TPA) security guards who
    were patrolling TPA property. It was alleged that the appellant pushed one of
    the guards who had approached him about loitering. The security guards
    handcuffed the appellant and called 9-1-1. A police officer arrived, left the
    appellant in handcuffs, searched him and found pills and marijuana in his
    inside jacket pockets. More pills were found in his pants pocket when he was
    searched later at the police station.

[3]

At trial the appellant expressly took the
    position that the Toronto police had not committed any
Charter
[1]
violations. He submitted that the security guards, on the other
    hand, had violated his
Charter
rights.

[4]

The trial judge relied on
R. v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, in holding that the
Charter
did not apply to the TPA security guards.

[5]

With respect to the drugs, the trial judge
    rejected the appellants testimony that the security guards had planted the
    drugs on him. Once the trial judge found the appellant was in possession of the
    drugs, the defence conceded the possession was for the purpose of trafficking.
    With respect to the assault, the trial judge rejected the appellants evidence
    and instead preferred the security guards evidence. The trial judge therefore
    convicted the appellant on both counts.

[6]

For the first time on appeal, the appellant
    raises the constitutionality of the police conduct. He submits the police
    illegally continued a citizens arrest which itself was unreasonable and
    therefore invalid, and, in doing so, violated the appellants s. 9
Charter
rights. Further, the appellant contends the warrantless search executed
    by the police violated his rights under s. 8 of the
Charter because
the arrest was invalid and, even if it were valid, the scope of the
    search exceeded the level of intrusion authorized under the doctrine of search
    incident to arrest. The drugs should therefore have been excluded.

[7]

Due to the appellants concession that the
    Toronto police had not violated his
Charter
rights, the arguments appellants counsel now raises that the police violated his
Charter
rights, were not put forward at trial.
    Before this court, the appellant submits that it is in the interests of justice
    for this court to hear the issue. Simply put, it is submitted that trial
    counsel was wrong at law not to raise
Charter
issues with respect to the police.

[8]

Despite the forceful submissions of counsel, we
    conclude that the appellant cannot raise the issue of the police conduct for
    the first time on appeal.

[9]

In
R. v. Reid
,
    2016 ONCA 524, 132 O.R. (3d) 26, at para. 39, this court confirmed the general
    rule that courts of appeal will not permit an issue to be raised for the first
    time on appeal. The rationale is based on: (i) prejudice to the other side
    which lacks the opportunity to respond and adduce evidence; (ii) the absence of
    a sufficient record; (iii) the societal interest in finality and the
    expectation that criminal cases will be disposed of at first instance; and (iv)
    the responsibility of defence counsel to advance all appropriate arguments at first
    instance:
Reid
, at para. 40.

[10]

The burden is on the party who seeks to raise
    the new issue to satisfy three preconditions:

1.
the evidentiary record must be sufficient to permit
    the appellate court to fully, effectively and fairly determine the issue raised
    on appeal;

2.
the failure to raise the issue at trial must not be
    due to tactical reasons; and

3.
t
he court must be satisfied that no miscarriage of
    justice will result from the refusal to raise the new issue on appeal:
Reid
,
    at paras. 42-43.

[11]

The appellant has not met these preconditions.

[12]

The record is not complete, largely due to the
    way that trial counsel framed the
Charter
issue. Since the conduct of the police was not an issue at trial, there was no
    evidence brought before the trial judge to enable her to assess the alleged
Charter
breaches. Nor are we satisfied that the failure to raise the
    conduct of the police was not a tactical decision. We have no evidence from
    trial counsel in this regard, as an allegation of ineffective assistance of
    counsel was not raised.

[13]

We therefore deny leave to permit the new
    argument on appeal.

[14]

The appellant has also raised issues relating to
    the trial judges credibility analysis. In our view, there was evidence to
    support the trial judges factual findings and there was no misapprehension of
    the evidence on her part. The trial judges credibility findings are entitled
    to considerable deference.

[15]

The appeal is therefore dismissed.

Gloria Epstein J.A.

G. Pardu J.A.

M.L. Benotto J.A.

[1]

Canadian Charter of Rights and Freedoms
, Part I of the
Constitution Act, 1982
, being Schedule B to
    the
Canada Act 1982
(U.K), 1982, c. 11.